Reverse chronological e-mail alerts prepared pro bono for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section, unofficially since 2003 and officially since 2007, covering California, 9th Circuit and US Supreme Court decisions, and new laws signed by Governor. To subscribe, contact LaborLaw@CLA.Legal.
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Johnson v. Dept. of Transportation (CA3 C099319 3/17/25) Attorney-Client Privilege
Plaintiff Christian L. Johnson sued his employer, defendant California Department of Transportation (Caltrans), based on claims arising out of his employment. While the suit was pending, Paul Brown, an attorney for Caltrans, sent an email about the litigation (the Brown email) to Nicolas Duncan, Johnson’s supervisor. Duncan sent an image of the email to Johnson, who shared it with his attorney, John Shepardson. Johnson and Shepardson then shared the email with several retained experts and other individuals.
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After extensive meet-and-confer communications, Caltrans sought a protective order on the ground that the email was covered by the attorney-client privilege. The trial court entered the order.
In the months that followed, the parties engaged in a protracted dispute concerning Johnson’s and Shepardson’s compliance with the protective order’s terms. Eventually, Caltrans filed a motion to enforce the order and later a motion to disqualify Shepardson and three retained experts. The trial court disqualified Shepardson and the experts.
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On appeal, Johnson challenges the trial court’s disqualification order. Among other arguments, he claims that the Brown email was not protected by the attorney-client privilege, Caltrans waived any privilege through undue delay, and the court abused its discretion in ordering the drastic remedy of disqualification. We find no merit in his arguments and will affirm the order.
https://www4.courts.ca.gov/opinions/documents/C099319.PDF
Perez v. Rose Hills Co. (9th Cir. 25-68 3/14/25) CAFA
The panel (1) vacated the district court’s order remanding to state court an action that was removed to federal court under the Class Action Fairness Act (“CAFA”), and (2) remanded to the district court for further proceedings.
The plaintiff, a former employee of defendant Rose Hills Company, sued on behalf of herself and a class of similarly situated employees, alleging violations of various California wage-and-hour laws. Rose Hills removed the case to federal court under CAFA. The district court held that it lacked jurisdiction because the removing defendant did not meet CAFA’s $5 million amount-in-controversy requirement.
The panel held that the removing defendant was permitted to rely on a chain of reasoning that includes reasonable assumptions to calculate the amount in controversy. The approach employed by Rose Hills tracks the approach approved in Arias v. Residence Inn by Marriott, 936 F.3d 920 (9th Cir. 2010). Rose Hills provided a declaration from a company representative showing the number of nonexempt employees it employed during the class period. Rose Hills then computed the amount in controversy by making an assumption about the rate at which it was alleged to have committed the various violations, and tethered that assumption to the language of the complaint. Under Arias, the district court should have considered whether the violation rate that Rose Hills assumed was a reasonable interpretation of the complaint. Instead, the district court rejected Rose Hills’s assumption because Rose Hills did not submit evidence justifying the particular violation rate it assumed.
Because the legal errors in the remand order prevented the district court from adequately evaluating whether Rose Hills’s violation-rate assumption was a reasonable interpretation of the complaint, the panel vacated the remand order and remanded this case to the district court for further proceedings.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/03/14/25-68.pdf
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Mandell-Brown v. Novo Nordisk Inc. et al. (CA2/5 B326147 3/6/25) FEHA | Summary Judgment
Plaintiff Melissa Mandell-Brown appeals from the summary judgment entered on her FEHA and other employment claims after she did not file an opposition to the underlying motion. She contends, among other things, that the trial court erroneously granted the motion without first deciding whether defendants had met their initial burden on the motion.
Because the trial court did not abuse its discretion under Code of Civil Procedure section 437c (section 437c), subdivision (b)(3) by granting the motion based on plaintiff’s failure to file the requisite separate statement, we affirm.
https://www4.courts.ca.gov/opinions/documents/B326147.PDF
Cedar Park Assembly of God v. Kleidler (9th Cir. 23-35560 3/6/25) Employer Health Coverage | Abortions
Vacating the district court’s summary judgment for Washington state defendants and remanding with instructions to dismiss the action, the panel held that the Cedar Park Assembly of God of Kirkland, Washington, lacked standing to challenge Washington’s Reproductive Parity Act (the “Parity Act”) under the Free Exercise Clause of the First Amendment.
The Parity Act, enacted in 2018, requires insurance carriers to provide health coverage for all federally approved contraceptives and, if maternity care is covered, for abortions. The Act’s 2019 implementing regulations do not diminish or affect any rights provided under Washington’s existing conscientious-objection statute, which enables insurance carriers to accommodate an employer’s religious objections to an insurance plan. The conscientious-objection statute also provides that employees can obtain coverage for abortion services through their employer’s insurance carrier, even when the plan itself does not include that coverage.
Cedar Park asserts that after the enactment of the Parity Act, but before its implementing regulations clarifying the availability of conscience-based exemptions, its insurer stopped accommodating the abortion exclusion. Cedar Park alleged that although Cigna has since offered a health plan that excluded abortion, the plan was not comparable, and Cedar Park has been unable to secure a substitute plan that would accommodate its religious objections.
The panel first held that its earlier determination that Cedar Park adequately pleaded an injury in fact to survive a motion to dismiss did not bind it under the law-of-the-case doctrine when reviewing a ruling on summary judgment. After full discovery, Cedar Park failed to establish causation.
The panel held that Cedar Park failed to establish that its claimed injury was traceable to the Parity Act or redressable. Taken together, the Parity Act, its implementing regulation, and Washington’s conscientious-objection statute and regulations operate to make Cedar Park’s desired no-abortion group health coverage possible. Nothing in the challenged law prevents any insurance company from offering Cedar Park a health plan that excludes direct coverage for abortion services. Cedar Park’s injury is premised on the alleged acts and independent decisions of non-parties to this action—independent health insurers. And nothing in the record suggests that Cedar Park’s alleged injury would be redressed if the Parity Act was struck down because invalidation of the Parity Act could not and would not force insurers to offer a no-abortion plan to Cedar Park.
The panel rejected Cedar Park’s contention that an employer purchasing a no-abortion plan in Washington still indirectly facilitates the provision of abortion services because employees can still obtain abortion coverage through the employer’s insurance carrier, and that this kind of facilitation is injurious. The panel held that general disapproval of the actions that others might decide to take does not create standing, even when some tenuous connection may exist between the disapproving plaintiff and the offense-causing action. Even were the panel to accept the basic premise of Cedar Park’s theory, it still would lack standing because its claimed injury was premised entirely on speculation.
Dissenting, Judge Callahan stated that Cedar Park has standing to challenge the Parity Act. Although Cedar Park can choose not to purchase abortion coverage for its “benefits package,” the Parity Act still requires it to facilitate access to abortion coverage simply by entering into a contract with an insurer servicing the State of Washington, in violation of its Free Exercise of religion. Moreover, Cedar Park’s insurer stopped providing a health plan that excludes abortion coverage, and Cedar Park cannot procure a comparable replacement.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/03/06/23-35560.pdf
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Moniz v. Adecco USA, Inc. (CA1/4 A168481 2/28/25) PAGA | Standing to Challenge Settlement
Rachel Moniz and Paola Correa filed separate suits against Adecco USA, Inc. (Adecco) alleging overlapping claims under the Private Attorney General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.). PAGA allows aggrieved employees, acting as the agent of the state’s labor law enforcement agencies, to bring an action against their employer to recover civil penalties for violations of the Labor Code. (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 81.) Moniz and Adecco settled their action, and in a previous appeal we held that Correa had standing as a PAGA plaintiff to challenge the fairness of that settlement by moving to vacate the ensuing judgment and appealing the denial of that motion. (Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 70–73 (Moniz II), disapproved in Turrieta v. Lyft, Inc. (2024) 16 Cal.5th 664, 710 (Turrieta).) We also agreed with Correa that the trial court erred in its analysis of the fairness of the settlement, so we reversed. (Id. at p. 89.)
Moniz and Adecco revised the settlement, and the trial court approved it over Correa’s objections and awarded Moniz’s counsel attorney’s fees out of the settlement fund. The trial court denied Correa’s request for a service award from the settlement fund and largely denied her request for an award of attorney’s fees from the settlement in compensation for her work in her own suit. Correa once more appeals, arguing the trial court’s analysis of the revised settlement was flawed in various respects. Correa and her counsel also argue that the denial of her request for attorney’s fees must be reversed with the judgment, and Correa further argues specifically that the trial court erred in denying her request for a service award.
While this appeal was pending, the California Supreme Court decided Turrieta, supra, 16 Cal.5th at pages 708–710, which disapproved of our reasoning in Moniz II regarding Correa’s standing. After reexamining the question of Correa’s appellate standing in light of Turrieta, we conclude Correa and her counsel lack standing to challenge the judgment and the appeals therefore must be dismissed.
https://www4.courts.ca.gov/opinions/documents/A168481.PDF
Ryan v. County of Los Angeles (CA2/3 B320677 2/28/25) Medical Staff Privileges
Dr. Timothy Ryan, a surgeon, was on the medical staff of Harbor-UCLA Medical Center (Harbor-UCLA) for six years. He was terminated in October 2019 after his medical staff privileges lapsed and were not renewed. Ryan sued the County of Los Angeles (County), which operates Harbor-UCLA, for retaliation in violation of three statutes: (1) Health and Safety Code section 1278.5; (2) Labor Code section 1102.5; and (3) Government Code section 12653. The trial court sustained the County’s demurrer to the Health and Safety Code section 1278.5 claim, and a jury returned a split verdict on the remaining claims, finding for the County on the Labor Code section 1102.5 claim, for Ryan on the Government Code section 12653 claim, and awarding Ryan noneconomic damages of $2.1 million. The trial court denied the County’s motion for judgment notwithstanding the verdict and awarded Ryan costs and attorney fees in excess of $3 million. Ryan appealed from the judgment, and the County appealed from the judgment and postjudgment orders.
On appeal, the County contends it was entitled to judgment notwithstanding the verdict on Ryan’s Government Code section 12653 claim, and thus judgment should have been entered in its favor. Ryan contends the trial court erred by sustaining the County’s demurrer to the Health and Safety Code section 1278.5 claim, granting the County’s motion for summary adjudication as to the wrongful termination aspect of Ryan’s Labor and Government Code claims, and denying Ryan’s motion to amend his complaint to add an additional cause of action under Civil Code section 52.1.
We conclude: (1) The County was entitled to judgment notwithstanding the verdict on the Government Code section 12653 claim; (2) the trial court erred by sustaining the County’s demurrer to the Health and Safety Code section 1278.5 claim; (3) the trial court properly granted the County’s motion for summary adjudication of Ryan’s Labor Code section 1102.5 wrongful termination claim; and (4) the trial court did not abuse its discretion in denying Ryan’s motion to amend his complaint. We therefore enter judgment for the County on the Government Code section 12653 claim, return the Health and Safety Code section 1278.5 claim to the trial court for further proceedings, and otherwise affirm the judgment.
https://www4.courts.ca.gov/opinions/documents/B320677.PDF
Santa Ana Police Officers Assn. et al. v. City of Santa Ana (CA4/3 G063075 2/28/25) Police Officers’ Personnel Records
The Santa Ana Police Officers Association (SAPOA) and certain anonymous City of Santa Ana police officers, suing pseudonymously as Doe Officers, appeal from a judgment entered after the trial court sustained without leave to amend the demurrer of defendant City of Santa Ana (the City) to Plaintiffs’ first amended complaint. Plaintiffs alleged the City had wrongfully disclosed the Doe Officers’ confidential personnel records, failed to conduct an investigation in response to a citizen complaint brought by the SAPOA about that disclosure, and denied Plaintiffs’ request for copies of communications regarding that disclosure.
Plaintiffs’ first amended complaint incorporated those allegations into four causes of action. In the first cause of action, Plaintiffs asserted the alleged disclosure of confidential personnel records violated Penal Code section 832.7 and Evidence Code sections 1043 and 1045. In the second cause of action, Plaintiffs asserted the City was negligent in disclosing those records. In the third cause of action, Plaintiffs asserted the City’s alleged failure to conduct an investigation of the SAPOA’s complaint constituted a violation of Penal Code sections 832.5 and 832.7, subdivision (f)(1). In the fourth cause of action, Plaintiffs asserted the City’s denial of their request for copies of communications violated the Meyers-Milias Brown Act, Government Code section 3500 et seq. (MMBA).
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Exercising our independent review (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415), we affirm in part and reverse in part. We affirm the judgment as to the Doe Officers because they had neither statutory authority nor court authorization to proceed anonymously using a pseudonym. As to the SAPOA, we conclude the trial court did not err by sustaining the City’s demurrer to the first, second, and fourth causes of action. The trial court erred, however, by sustaining the City’s demurrer to the third cause of action. We therefore affirm in part, reverse in part, and remand.
https://www4.courts.ca.gov/opinions/documents/G063075.PDF
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American Federation of State etc. Employees et al. v. City of L.A. (CA2/7 B322224 2/27/25) Public Sector | Reciprocal Retirement Benefits
This appeal arises from the cessation of a Reciprocal Retirement Benefits Arrangement (Reciprocal Arrangement) for the transfer of employee pension contributions when public employees move from job positions with the Los Angeles Department of Water and Power (DWP) to the City of Los Angeles (City), or vice versa. The Reciprocal Arrangement was in effect from 1980 to 2013, but in 2013 DWP withdrew from it. The City (one of the respondents) followed suit by adopting Ordinance No. 182824 (the 2013 Ordinance), which suspended the Reciprocal Arrangement. City employees and their unions (the petitioners, collectively City Employees) brought an action against the City, asserting the 2013 Ordinance impairs and diminishes employees’ vested retirement benefits in violation of the contract clause of the California Constitution. The City Employees also argue the 2013 Ordinance violates other provisions of the Los Angeles Administrative Code by forcing some employees to forfeit health benefits. In the published portion of the opinion, we conclude the suspended terms of the Reciprocal Arrangement were not vested rights and thus find no constitutional violation by the City. In the unpublished portion, we determine the City Employees have shown no violation with respect to employee health benefits. We thus affirm the superior court’s denial of the petition for writ of mandate.
https://www4.courts.ca.gov/opinions/documents/B322224.PDF
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Ames v. OH Dept. of Youth Services (US 23-1039 Oral Arg. Transcript 2/25/25) Title VII | Background Circumstances
Whether, in addition to pleading the other elements of Title VII, a majority-group plaintiff must show "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."
Audio
Lui v. DeJoy (9th Cir. 23-35378 2/26/25) Title VII Retaliation
The panel reversed the district court’s summary judgment on Dawn Lui’s disparate treatment claim, remanded to allow the district court to address the merits of Lui’s hostile work environment claim, and affirmed the district court’s grant of summary judgment on Lui’s retaliation claim in Lui’s action under Title VII of the Civil Rights Act against her employer, the United States Postal Service (“USPS”).
Concerning Lui’s disparate treatment claim, the panel held that the district court erred in finding that Lui failed to establish a prima facie case of discrimination—the first part of the three-part test in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The panel held that Lui, who is a woman of Chinese ethnicity, satisfied the fourth element of the test for establishing a prima facie case by showing that she was treated less favorably than similarly situated individuals. She was removed from her position as Postmaster in Shelton, Washington and demoted to a Postmaster position at Roy, Washington at a lower salary, and she was replaced by a white man. Those circumstances gave rise to an inference of discrimination, and this was all she needed to show to satisfy the fourth element. The panel also held that the district court erred in finding that USPS met its burden to articulate a legitimate, nondiscriminatory reason for the adverse employment action. The panel held that there was a genuine dispute of material fact about whether the decision of Tacoma Postmaster Karen Bacon to confirm Lui’s demotion was actually independent or influenced by subordinate bias. The panel disagreed with the district court’s conclusion that Lui failed to exhaust her administrative remedies on her hostile work environment claim. Contrary to USPS’s argument, Lui’s failure to address administrative exhaustion in her opening brief was at most forfeiture, not waiver. The court can review a forfeited issue if the failure to raise the issue properly did not prejudice the defense of the opposing party. A review of the record showed that USPS had notice of Lui’s positions and arguments. The panel exercised its discretion to address exhaustion, concluded that Lui exhausted her administrative remedies for her hostile work environment claim, and remanded for the district court to address the merits of her claim. Concerning Lui’s retaliation claim, Lui argued that USPS engaged in unlawful retaliation by demoting her based on “unacceptable conduct”—that Lui had improperly brought an employee’s husband into a staff-only area of the Post Office while investigating his complaint that a Post Office employee had sexually harassed his wife. The panel held that the district court properly found that Lui failed to establish a causal connection between this conduct and USPS’s decision to downgrade her position, and therefore affirmed the district court’s grant of summary judgment to USPS on Lui’s retaliation claim.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/02/26/23-35378.pdf
Rodriguez v. Packers Sanitation Services (CA4/1 D083400 2/26/25) Arbitration | PAGA
Packers Sanitation Services Ltd., LLC (Packers) appeals an order denying its motion to compel arbitration of an action under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) brought by Jose A. Parra Rodriguez (Parra). Packers contends the trial court erred by failing to compel Parra to arbitrate the individual component of his PAGA claims. Parra responds that he has forgone individual relief and his PAGA claims lack an individual component. We affirm.
https://www4.courts.ca.gov/opinions/documents/D083400.PDF
Lowry v. Port San Luis Harbor Dist. (CA2/6 B330631 2/26/25) FEHA | Disability Retirement
The California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA) requires employers to hire and retain individuals with disabilities able to perform their essential duties with or without reasonable accommodations (“qualified employees”). FEHA also protects qualified employees from discriminatory adverse employment actions based on disability regarding the terms, conditions, and privileges of employment. (§§ 12920, 12921, 12940, subd. (a); see Miller v. Department of Corrections & Rehabilitation (2024) 105 Cal.App.5th 261, 280 (Miller); Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143, 148.)
Here we conclude that the denial of disability retirement payments is not an adverse employment action under FEHA. Disability retirement payments do not facilitate a qualified employee’s continued employment, job performance, or opportunity for advancement. To the contrary, they serve as income replacement for employees who can no longer work. We hold that an individual who is not a qualified employee cannot bring a disability discrimination claim under FEHA for the denial of disability retirement payments.
John Lowry appeals from the order granting summary judgment against him in favor of his former employer, the Port San Luis Harbor District (the District). He contends the trial court erred by concluding he was not eligible for relief under FEHA when the District denied his request for disability retirement payments after he suffered a workplace injury rendering him unable to perform his essential functions even with reasonable accommodations. We affirm.
https://www4.courts.ca.gov/opinions/documents/B330631.PDF
Serrano v. Public Employees' Retirement System (CA3 C098392 2/26/25) Public Sector Pensions
Appellant Gerry Serrano took a leave of absence from being a police officer for the City of Santa Ana (City) to serve as president of the Santa Ana Police Officers Association (Association). Respondent Public Employees’ Retirement System (CalPERS) determined certain special pay additives the City paid Serrano before and during his service as Association president could not be included in Serrano’s pension. The Administrative Board of CalPERS (Board) and later the superior court affirmed the exclusion of most of these pay additives from Serrano’s pension. Serrano appeals, arguing Government Code section 3558.8 mandates he cannot lose any compensation, including pensionable compensation, while serving as the Association president. Serrano further challenges the specific exclusion of a confidential premium and holiday pay from his pensionable compensation. We affirm.
https://www4.courts.ca.gov/opinions/documents/C098392.PDF
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Ramirez v. Charter Communications, Inc. (CA2/4 B309408A 2/24/25) Arbitration
Angelica Ramirez sued her former employer, Charter Communications, Inc. (Charter), asserting claims under the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq.; FEHA). Charter moved to compel arbitration of Ramirez’s claims based on the parties’ arbitration agreement. The trial court concluded the agreement contained unconscionable provisions and declined to enforce it.
In Ramirez v. Charter Communications, Inc. (2022) 75 Cal.App.5th 365 (Ramirez I), a different panel of this court held the arbitration agreement contained four unconscionable provisions. (Id. at pp. 386-387.) The panel affirmed the trial court’s refusal to enforce the agreement rather than severing the tainted provisions and enforcing the remainder. (Id. at p. 386) The Supreme Court concurred that three of the four provisions are substantively unconscionable and remanded the matter to this court to consider the severance question anew. (Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 517-518 (Ramirez II).)
After receiving supplemental briefing following remand, we conclude severing the unconscionable provisions would not further the interests of justice and, therefore, affirm the trial court’s refusal to enforce the agreement.
https://www4.courts.ca.gov/opinions/documents/B309408A.PDF
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In re: Kirsten v. California Pizza Kitchen, Inc. (9th Cir. 23-55288 2/24/25) Class Settlement of Employee Personal Information | Attorneys’ Fees
The panel affirmed the district court’s approval of a class settlement, reversed the attorneys’ fee award, and remanded in a class action brought by California Pizza Kitchen, Inc. (CPK) employees whose personal information was compromised by a cyberattack.
One group of plaintiffs’ lawyers struck a settlement with CPK. The monetary value of the class’s claims were (at most) around $950,000, yet the attorneys sought $800,000 in fees. The district court approved the settlement.
The panel held that district courts may approve claims—made settlements—even those that raise indicia of collusion—so long as they adhere to procedural requirements and find the settlement “fair, reasonable, and adequate” under Fed. R. Civ. P. 23(e). Although the district court’s preliminary and final approval orders were sparse and memorialized little of the district court’s rationale, the panel did not remand because the panel could reasonably infer the district court’s rationale from the record, which was unusually extensive.
The panel held that the district court properly applied the In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935 (9th Cir. 2011), heightened standard to review the settlement for collusion. The panel concluded that upon a review of the record, the district court neither procedurally erred nor abused its discretion in finding the settlement substantively acceptable. The panel thus affirmed the approval of the class settlement.
The panel reversed the fee award because the district court did not assess the actual value of the settlement and compare it to the fees requested. The panel remanded for the district court to determine the settlement’s actual value to class members and award reasonable and proportionate attorneys’ fees, consistent with this opinion.
Judge Collins concurred in the judgment to the extent that the majority reversed and remanded the district court’s approval of the fee award. He dissented from the majority’s decision to affirm the approval of the underlying settlement because, in approving the final settlement proposal before class certification, the district court provided little explanation as to why it approved this settlement and instead issued a series of perfunctory orders, despite the fact that (1) the final settlement triggers every Bluetooth factor; (2) the settlement’s final value ended up being nearly a fourth of the estimated “conservative” value presented at the preliminary approval hearing; and (3) the settlement’s proposed fee award comprises nearly 46% of the entire settlement.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/02/24/23-55288.pdf
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Williams v. Reed (US 23–191 2/21/25) Unemployment Benefits | State Exhaustion Requirement and section 1983
Petitioners are unemployed workers who contend that the Alabama Department of Labor unlawfully delayed processing their state unemployment benefits claims. They sued the Alabama Secretary of Labor in state court under 42 U. S. C. §1983, raising due process and federal statutory arguments and seeking a court order requiring the Department to process their claims more quickly. The Secretary moved to dismiss on several grounds, including that the state trial court lacked jurisdiction because the claimants had not satisfied the relevant statute’s strict administrative-exhaustion requirement. See Ala. Code §25–4–95. The state trial court granted the Secretary’s motion and dismissed the complaint, leaving the claimants in a catch-22—unable to sue to obtain an order expediting the administrative process because they had not yet completed the process allegedly being delayed. The Alabama Supreme Court affirmed on failure-to-exhaust grounds, concluding that §1983 did not preempt the State’s administrative-exhaustion requirement.
Held: Where a state court’s application of a state exhaustion requirement in effect immunizes state officials from §1983 claims challenging delays in the administrative process, state courts may not deny those §1983 claims on failure-to-exhaust grounds. Pp. 5–10.
(a) “[A] state law that immunizes government conduct otherwise subject to suit under §1983 is preempted, even where the federal civil rights litigation takes place in state court.” Felder v. Casey, 487 U. S. 131, 139. Thus, in Howlett v. Rose, this Court held that §1983 preempted a Florida rule extending the State’s sovereign immunity from §1983 suits “to municipalities, counties, and school districts” because it in effect afforded immunity from certain §1983 claims. 496 U. S. 356, 366. And in Haywood v. Drown, the Court held that a New York statute designed to shield correction officers from damages claims by prisoners was preempted by §1983. 556 U. S. 729. Pp. 5–6.
(b) Under Alabama’s exhaustion requirement, state courts cannot review claims of unlawful delays under §1983 unless and until the claimants first complete the administrative process and receive a final decision on their claims. Such a requirement operates to immunize state officials from a narrow class of claims brought under §1983. Under this Court’s precedents, Alabama cannot apply such an immunity rule. P. 7.
(c) According to the Secretary, the jurisdictional nature of Alabama’s exhaustion provision distinguishes it from the state rules at issue in Haywood and Howlett. But this Court’s precedents have not treated the jurisdictional label of state rules as dispositive when state rules functionally immunize defendants from a class of §1983 claims in state court. In Haywood, for example, the Court stated that the jurisdictional status of New York’s rule did not insulate it from preemption. 556 U. S., at 739–742.
Next, the Secretary suggests that any delays in the state administrative process can be cured by claimants’ seeking a writ of mandamus from the state courts to compel the Department to act more quickly. It is not evident, however, that mandamus is available to the claimants here. In any event, the Secretary’s argument is simply another way of saying that the claimant must go through the state process before suing under §1983 to challenge any delays in that process. Just as Alabama may not force plaintiffs to complete the state administrative process before plaintiffs may sue under §1983 to challenge allegedly unlawful delays, the State may not force plaintiffs to seek mandamus before bringing those claims.
Pp. 8–10. 387 So. 3d 138, reversed and remanded.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, GORSUCH, and BARRETT, JJ., joined as to Part II.
https://www.supremecourt.gov/opinions/24pdf/23-191_q8l1.pdf
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Arzate v. ACE American Insurance Company (CA2/1 B336829, filed 1/27/25, pub. 2/19/25) Arbitration
In this wage-and-hour class action suit, the trial court granted the defendant’s motion to compel arbitration, but later reversed course and lifted the stay of litigation after neither party took any action to initiate arbitration. The arbitration agreements at issue require any person having “employment related legal claims” to “submit them to . . . arbitration.” They also require the “party who wants to start the [a]rbitration [p]rocedure” to begin the process by filing a demand for arbitration. The trial court concluded that the obligation to commence arbitration lay with the defendant, ACE American Insurance Company (ACE), which had filed the motion to compel arbitration, rather than with the plaintiffs, a group of ACE employees who had consistently resisted arbitration. In the court’s view, ACE waived its right to arbitrate the dispute by failing to commence the arbitration.
ACE appeals from the trial court’s order, arguing the court misinterpreted the contractual language. We agree. The plaintiffs expressly agreed to “submit” their claims to arbitration. In context, the agreements’ language concerning the “party who wants to start the [a]rbitration [p]rocedure” refers to the party that wants to assert a legal claim governed by the arbitration agreements. In this case, that is the plaintiffs, not ACE. Thus, the plaintiffs were required to initiate arbitration, and ACE did not breach the arbitration agreements or waive its right to arbitration by failing to submit the plaintiffs’ claims for them. In addition, we disagree with the plaintiffs’ contention that the trial court’s order is not appealable and that we must dismiss the appeal.
https://www4.courts.ca.gov/opinions/documents/B336829.PDF
Lin v. Board of Directors of PrimeCare Medical Network (CA4/1 D084821 2/19/25) Peer Review
The Board of Directors (the Board) of PrimeCare Medical Network, Inc. (PrimeCare) appeals from a judgment granting the petition for writ of administrative mandamus (Code Civ. Proc. § 1094.5) filed by Jason Y. Lin, M.D. (Lin). Lin’s petition challenged the final decision by the Board in peer review proceedings regarding PrimeCare’s summary suspension of Lin’s privileges to perform patient care services. The main issue is whether, as the trial court concluded, the Board acted in excess of its jurisdiction and committed a prejudicial abuse of discretion when it reversed the decision of PrimeCare’s judicial hearing committee that Lin’s summary suspension was not reasonable and warranted.
We conclude that the trial court properly granted Lin’s petition, and we accordingly affirm the judgment.
https://www4.courts.ca.gov/opinions/documents/D084821.PDF
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Sandhu v. Bd. of Admin. of CalPERS (CA3 C100028 2/14/25) Public Sector Retirement | Common Employee Law Test
Twenty years ago, in Metropolitan Water Dist. v. Superior Court (2004) 32 Cal.4th 491, our Supreme Court held the Public Employees’ Retirement Law (PERL) (Gov. Code § 20000 et seq.) incorporates the common law test for employment, and that public agencies that contract with the Public Employees Retirement System (CalPERS) are required to enroll all their common law employees in CalPERS. In this case, the Board of Administration of CalPERS determined Tarlochan Sandhu worked for several cities as a common law employee after he had retired from public service, in violation of rules governing postretirement employment, and the trial court upheld that determination. Sandhu appeals, arguing (1) the Legislature has abrogated the common law test for employment in the circumstances of this case, (2) if the common law test applies, CalPERS and the trial court both erred when they found he was a common law employee, and (3) CalPERS’s decision was based on underground regulations. We disagree with the first two arguments and find the third was forfeited, and we thus affirm.
https://www4.courts.ca.gov/opinions/documents/C100028.PDF
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Civil Rights Dept. v. Cathy's Creations (CA5 F085800 2/11/25) Unruh Civil Rights Act
This appeal involves a bakery’s refusal to sell a predesigned white cake, popularly sold for a variety of events, because it was intended for use at the customers’ same-sex wedding reception. The State of California, through the Civil Rights Department (the CRD), filed suit on behalf of real parties in interest Eileen and Mireya Rodriguez-Del Rio (the Rodriguez-Del Rios) when Tastries Bakery (Tastries) refused to provide them the cake for their wedding pursuant to the bakery’s policy that prohibited the sale of any preordered cake for a same-sex couple’s wedding. The case culminated in a bench trial on the CRD’s claim of discrimination under the Unruh Civil Rights Act (Civ. Code, § 51 et seq. (UCRA)), and the free speech and free exercise affirmative defenses of defendants Tastries, Tastries’s owner Cathy’s Creations, Inc. (Cathy’s Creations), and Cathy’s Creations’s sole shareholder Catharine Miller (Miller) (collectively defendants).
The trial court concluded there was no violation of the UCRA because the CRD failed to prove intentional discrimination, and concluded Miller’s referral of the Rodriguez-Del Rios to another bakery constituted full and equal access under the UCRA. The trial court proceeded to consider defendants’ affirmative defenses as an alternative matter, and concluded the preparation of a preordered cake by defendants always constitutes expression protected by the federal Constitution’s First Amendment when it is sold for a wedding, and, as applied here, concluded the UCRA compelled defendants to speak a message about marriage to which they objected. The trial court rejected defendants’ defense under the free exercise clause of both the federal and state Constitutions.
The CRD appeals and challenges the trial court’s construction and application of the UCRA’s intentional discrimination element, and its interpretation and application of decisional authority in concluding Miller’s referral of the couple to a separate business constitutes full and equal access under the UCRA. The CRD and defendants also challenge the trial court’s determinations as to defendants’ affirmative defenses.
For the reasons explained below, we conclude the trial court erred in its determination that Tastries’s policy was facially neutral and, as a result, misconstrued the intentional discrimination standard to require evidence of malice or ill will. Application of the policy here pivots upon the sexual orientation of the end user—the policy cannot apply or operate until the same-sex status of the couple is identified. Despite that the underlying rationale for the policy is rooted in a sincerely held religious belief about marriage, held in good faith without ill will or malice, the policy nonetheless requires a distinction in service that is based solely on, and because of, the end users’ sexual orientation. The relevant and undisputed facts about the policy and its application here necessarily establish intentional discrimination.
We also conclude Miller’s referral to a separate business did not satisfy the UCRA’s full and equal access requirement. The applicable case authority does not contemplate, let alone authorize, a referral to an entirely separate business entity as full and equal access. Interpreting the UCRA in this manner would not only thwart the bedrock antidiscrimination purposes of the statute, it would entirely undermine the statute’s operation as a public accommodations law. Under such a rule, business establishments would be free to refuse service to anyone on account of protected characteristics so long as they told those customers there was another comparable business in existence confirmed to have no objection to providing service.
As for defendants’ constitutional affirmative defenses, under our independent review, we conclude defendants’ refusal to provide the Rodriguez-Del Rios the predesigned, multi-purpose white cake requested was not protected expression under the federal Constitution’s free speech guarantee. A three-tiered, plain white cake with no writing, engravings, adornments, symbols or images is not pure speech. Nor can the act of preparing a predesigned, multi-purpose, plain white cake—an ordinary commercial product—and delivering it prior to the wedding constitute the symbolic speech of the vendor. Further, we conclude the trial court properly rejected defendants’ free exercise challenges under governing case authority. Accordingly, we reverse and remand.
https://www4.courts.ca.gov/opinions/documents/F085800.PDF
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Vo v. Technology Credit Union (CA6 H051619 2/4/25) Arbitration
Appellant Technology Credit Union (TCU) appeals from a trial court order denying a motion to compel arbitration. Respondent Thomas Vo (Vo) signed an employment arbitration agreement with TCU. After Vo was terminated and sued TCU for violations of the Fair Employment and Housing Act (FEHA), TCU moved to compel arbitration and stay all proceedings. The trial court, relying in part on Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360 (Aixtron), found the arbitration agreement unconscionable due to the arbitrator’s inability to compel prehearing third party discovery. For the reasons discussed below, we reverse the order and remand with instructions to grant the motion to compel arbitration and to stay the proceedings pending arbitration.
https://www4.courts.ca.gov/opinions/documents/H051619.PDF
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Casey v. Superior Court (2/3/25 CA1/1 A170650 2/3/25) Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act | Arbitration
Petitioner Kristin Casey sued real parties in interest D.R. Horton, Inc. (her former employer) and one of its employees, Kris Hansen, alleging sexual harassment and other claims. D.R. Horton filed a motion to compel arbitration, which was joined by Hansen. Casey opposed the motion, relying on the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (9 U.S.C. §§ 401–402, EFAA or Act). This federal law permits plaintiffs to elect to render arbitration agreements unenforceable in cases relating to a sexual harassment dispute. (9 U.S.C. § 402(a).) The trial court granted the motion to compel, reasoning that the EFAA was inapplicable because the parties’ employment agreement specified that California law governed. Casey then filed this petition for a writ of mandate.
We grant Casey’s petition and direct respondent trial court to vacate its order granting the motion to compel arbitration. In doing so, we hold that the EFAA preempts attempts under state law to compel arbitration of cases relating to a sexual harassment dispute, and parties cannot contract around the law by way of a choice-of-law provision.
https://www4.courts.ca.gov/opinions/documents/A170650.PDF
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Nabors Corporate Services, Inc. v. City of Long Beach (CA2/5 B328026 1/31/25) Indemnity | Labor Code sections 1781 and 1784
Plaintiff Nabors Corporate Services, Inc. (Nabors) appeals from the dismissal of its complaint against defendants following the sustaining of demurrers. According to Nabors, the trial court erred when it ruled that Nabors had no right to indemnity against defendants under Labor Code sections 1781 and 1784. We affirm the dismissal of the section 1784 claim against Tidelands, but reverse the dismissal of Nabors’s section 1781 claim against the City.
https://www4.courts.ca.gov/opinions/documents/B328026.PDF
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Colon-Perez v. Security Industry Specialists (CA1/1 A168297 1/29/25) Arbitration
Plaintiff Jenny-Ashley Colon-Perez sued her former employer, defendant Security Industry Specialists, Inc. (SIS), alleging several causes of action related to her employment. After SIS moved to compel arbitration, the parties stipulated to such, and the trial court ordered the claims arbitrated and stayed the pending court action. SIS promptly paid two arbitration fee invoices but failed to pay the next invoice within the 30-day period required by Code of Civil Procedure section 1281.98. Pursuant to that statute, Colon-Perez elected to withdraw from arbitration and moved to vacate the arbitration and stay order. The trial court granted the motion, ruling, in accordance with section 1281.98, that SIS had materially breached the arbitration agreement and Colon-Perez was entitled to proceed with her claims in court. SIS then moved, pursuant to section 473, subdivision (b) (section 473(b)), to vacate the order vacating the arbitration and stay order. The trial court denied SIS’s motion.
SIS maintains the trial court erred in granting Colon-Perez’s motion to vacate and denying its own subsequent motion to vacate because (1) the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.), and not section 1281.98, applies to the arbitration agreement; (2) the FAA preempts section 1281.98; (3) section 1281.98 violates the contracts clause of the United States and California Constitutions; and (4) it properly sought relief under section 473, subdivision (b). We recently addressed whether the FAA preempts section 1281.98 in Keeton v. Tesla, Inc. (2024) 103 Cal.App.5th 26, 32 (Keeton), review granted September 11, 2024, S286860. We concluded it does not, as have all but one of the Courts of Appeal that have considered the issue. We are not persuaded to depart from our conclusions in Keeton. Nor are we persuaded by SIS’s other arguments and affirm the challenged orders.
https://www4.courts.ca.gov/opinions/documents/A168297.PDF
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Hearn v. PG&E (CA1/3 A167742M, filed 1/24/25, mod. 1/28/25) Defamation
THE COURT:
It is ordered that the dissent portion of the opinion filed herein on January 24, 2025, be modified in the following particulars:
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On page 9, the citation to the majority opinion in the second and third lines of the first paragraph shall be modified to read:
(See Maj. opn. ante, at p. 18, citing Lazar, supra, 12 Cal.4th at p. 643; Hunter, supra, 6 Cal.4th at p. 1178.)
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On page 9, the last line of the first paragraph, where citing the majority opinion, shall be modified to read:
ante, at p. 18.)
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On page 9, the second through fifth sentences of the second paragraph shall be modified to read:
To begin with, I disagree with the majority’s assertion that “Hearn’s defamation claim was founded on the same conduct—i.e., the creation of the Mar report and its use in his termination—that would form the basis for an ordinary wrongful termination.” (Maj. opn. ante, at p. 24.) The creation of the Mar report was not the basis for the thoroughly ordinary wrongful termination claim that Hearn brought in this case. He claimed PG&E had wrongfully discharged him in retaliation for his disclosure of suspected safety violations, a violation of Labor Code section 1102.5 completely unrelated to the defamatory statements in the Mar report. The jury found Hearn’s discharge was not wrongful in this sense, declining to find PG&E liable for a retaliatory wrongful discharge.
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On page 10, the first seven lines shall be modified to read:
PG&E also makes no effort to show that Hearn’s defamation claim is indistinguishable from any other form of “ ‘ordinary constructive wrongful termination.’ ” (Lazar, supra, 12 Cal.4th at p. 643 [discussing Hunter, supra, 6 Cal.4th at p. 1184].) The Hunter jury found the employer in that case had breached an implied contract not to terminate Hunter’s employment without good cause, and it was this contractual right that made Hunter’s constructive termination wrongful. (Hunter, at pp. 1180, 1184.) Hearn makes no similar
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On page 10, in footnote 3 the citation to the majority opinion shall be modified to read:
(Cf. Maj. opn. ante, at p. 17.)
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On page 11, in the 1st full paragraph, the citation to the majority opinion shall be modified to read:
(Maj. opn., ante, at pp. 4–5, 19–21.)
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On page 13, in footnote 5 the citation to the majority opinion shall be modified to read:
(Maj. opn. ante, at pp. 21–22.)
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Todd Hearn sued his former employer, Pacific Gas & Electric Company (PG&E) for retaliation and defamation. The jury found PG&E liable for defamation but rejected Hearn’s retaliation claim. On appeal, PG&E contends the trial court erred by denying its motion for judgment notwithstanding the verdict (JNOV) because Hearn’s defamation claim was not separately actionable—i.e., the defamation claim was premised on the same conduct that gave rise to his termination and the damages sought were solely related to his loss of employment. In his cross-appeal, Hearn alleges the verdict rejecting his retaliation claim is not supported by sufficient evidence and contends the trial court erroneously excluded relevant evidence.
Tort claims, including defamation, may be brought by former employees against their employers. However, as Hearn’s claim for defamation is a claim for wrongful termination by another name, we reverse the trial court’s order denying PG&E’s JNOV. We otherwise affirm the judgment.
https://www4.courts.ca.gov/opinions/documents/A167742M.PDF
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Cunningham v. Cornell Univ. (US 23-1007 oral argument transcript 1/22/25) ERISA
The Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1106(a)(1) (C), prohibits a plan fiduciary from "engag[ing] in a transaction, if he knows or should know that such transaction constitutes a direct or indirect furnishing of goods, services, or facilities between the plan and a party in interest." The statute elsewhere defines "party in interest" broadly to include a variety of parties that may contract with or provide services to a plan. See 29 U.S.C. § 1002(14)(B).
The Eighth and Ninth Circuits have applied the Seventh, and Tenth Circuits have, on the other hand, required plaintiffs to allege additional elements to state a claim, because a "literal reading" of 29 U.S.C. § 1106(a)(1)(C) would purportedly produce "results that are inconsistent with ERISA's statutory purpose." Albert v. Oshkosh Corp., 47 F.4th 570, 585 (7th Cir. 2022). The question presented is:
Whether a plaintiff can state a claim by alleging that a plan fiduciary engaged in a transaction constituting a furnishing of goods, services, or facilities between the plan and a party in interest, as proscribed by 29 U.S.C. § 1106(a)(1)(C), or whether a plaintiff must plead and prove additional elements and facts not contained in the provision's text.
Associated General Contractors etc. v. Dept. of Industrial Relations (CA3 C098009 1/22/25) Prevailing Wage for Apprentices on Public Works
This appeal involves a challenge to amended regulations issued by the California Apprenticeship Council (the Council or Council) to implement Labor Code section 1777.5, a prevailing wage law governing the employment of apprentices on public works projects.
Section 1777.5 promotes apprenticeship by requiring public works contractors who employ workers in “any apprenticeable craft or trade” to also employ a certain ratio of apprentices to experienced “journeymen” workers. (§ 1777.5, subds. (d), (g), (h).) For employers, a key benefit is that workers participating in state-approved apprenticeship programs can be paid a lower apprentice wage rate. (§ 1777.5, subds. (b)(1) & (c); Henson v. C. Overaa & Co. (2015) 238 Cal.App.4th 184, 189 (Overaa) [“If the Prevailing Wage Law required contractors to pay all employees union wages, it would present a significant obstacle to the hiring and training of lesser-skilled apprentices”].)
Before the challenged regulatory amendments, disputes arose about whether an apprentice’s craft or trade should be defined by the type of work carried out by journeyworkers in the same occupation, or instead should be based on the work processes on which apprentices were expressly approved to train. (See Overaa, supra, 238 Cal.App.4th at pp. 188-194.) In Overaa, the Court of Appeal, First Appellate District, Division One, held that an apprentice’s craft or trade is defined by the type of work carried out by the journeyworkers and other members of the union sponsoring the apprentice’s training program. (Id. at p. 194.)
Several years after (and notwithstanding) the Overaa decision, the Council adopted the challenged regulations providing that, to qualify for the apprentice wage rate, apprentices must be performing work processes included in the apprentice’s approved training program. (Cal. Code Regs., tit. 8 (8 CCR), §§ 205, subds. (c), (p), (q), 230.1, subd. (c).) The stated purpose of the amendments was to “ensure that the work performed by apprentices on public works is a genuine part of their training program leading to fully competent journey-level status, and conversely that apprentices will not be used as a source of cheap labor for work processes that are not part of their structured, state-approved training program.”
Associated General Contractors of California, Inc., et al. and Construction Employers’ Association et al. (the employer petitioners), with Laborers Training and Retraining Trust of Southern California et al. (the program petitioners, and collectively petitioners), filed petitions and complaints (petitions) challenging the validity of the new regulations. The trial court denied the petitions.
On appeal, petitioners contend the trial court’s judgment should be reversed because (1) the challenged regulations exceed the scope of the Council’s rulemaking authority, (2) the regulations are inconsistent with the governing law, (3) the regulations violate the Administrative Procedure Act’s (APA) (Gov. Code, § 11340 et seq.) clarity standard, and (4) the Council failed to adequately assess and disclose the regulations’ potential adverse economic impacts.
In the published portion of this opinion, we conclude that the regulations are within the scope of the Council’s rulemaking authority and consistent with the governing law. In reaching this conclusion, we depart somewhat from the Overaa court’s interpretation of section 1777.5. In the unpublished part of the opinion, we reject petitioners’ remaining contentions. Accordingly, we affirm.
https://www4.courts.ca.gov/opinions/documents/C098009.PDF
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Int’l Union of Operating Engineers v. NLRB (9th Cir. 23-124 1/21/25) NLRA
The panel denied petitions for review brought by the International Union of Operating Engineers, Stationary Engineers, Local 39 (the “Union”) and Macy’s Inc., and granted the National Labor Relations Board’s cross application for enforcement of its final order in a case in which the Union charged Macy’s with unfair labor practices under the National Labor Relations Act (“NLRA”).
During negotiations over a successor collective bargaining agreement, Union members voted to reject Macy’s Final Offer and began a strike. After three months, the Union ended its strike and unconditionally offered to return to work. Macy’s locked out the Union members who reported for work. The Union charged that Macy’s lockout was an unfair labor practice. The Board adopted the conclusion of the ALJ, and found that Macy’s violated the NLRA.
The panel held that it had jurisdiction because the Union is a “person aggrieved.”
The panel rejected Macy’s contention that it could lawfully lock out the employees under Section 8(a)(1) and (3) of the NLRA because it could not show legitimate and substantial business justifications for the lockout. The Board applied the correct legal standard when it considered Dayton Newspapers, Inc., 339 N.L.R.B. 650 (2003). Reviewing the record as a whole, the panel found substantial evidence supporting the Board’s conclusion that Union employees were not clearly and fully informed of conditions they needed to satisfy to be reinstated. Considering Dayton Newspapers, the panel concluded that the lockout was not justified.
Finding no clear abuse of discretion, the panel enforced the Board’s remedial order. The Board did not abuse its discretion in declining to award additional extraordinary remedies, requested by the Union, because the traditional remedies awarded were sufficient to effectuate the policies of the NLRA here. Rejecting Macy’s challenges, the panel held that the Board did not clearly abuse its discretion in ordering make-whole relief pursuant to Thryv, Inc., 372 N.L.R.B. No. 22 (Dec. 13. 2022).
During negotiations over a successor collective bargaining agreement, Union members voted to reject Macy’s Final Offer and began a strike. After three months, the Union ended its strike and unconditionally offered to return to work. Macy’s locked out the Union members who reported for work. The Union charged that Macy’s lockout was an unfair labor practice. The Board adopted the conclusion of the ALJ, and found that Macy’s violated the NLRA. The panel held that it had jurisdiction because the Union is a “person aggrieved.” The panel rejected Macy’s contention that it could lawfully lock out the employees under Section 8(a)(1) and (3) of the NLRA because it could not show legitimate and substantial business justifications for the lockout. The Board applied the correct legal standard when it considered Dayton Newspapers, Inc., 339 N.L.R.B. 650 (2003). Reviewing the record as a whole, the panel found substantial evidence supporting the Board’s conclusion that Union employees were not clearly and fully informed of conditions they needed to satisfy to be reinstated. Considering Dayton Newspapers, the panel concluded that the lockout was not justified. Finding no clear abuse of discretion, the panel enforced the Board’s remedial order. The Board did not abuse its discretion in declining to award additional extraordinary remedies, requested by the Union, because the traditional remedies awarded were sufficient to effectuate the policies of the NLRA here. Rejecting Macy’s challenges, the panel held that the Board did not clearly abuse its discretion in ordering make-whole relief pursuant to Thryv, Inc., 372 N.L.R.B. No. 22 (Dec. 13. 2022).
Dissenting in part, Judge Bumatay would hold that the Board had no authority to order the type of monetary relief it did, requiring Macy’s to pay foreseeable or consequential damages—compensating Union members for ongoing harms accumulating to this day—more than four years since the lockout. The Board’s actions were arbitrary and capricious and unsupported by the record. While he agreed with the denial of the Union’s petition for review, he dissented from the denial of Macy’s petition for review and from the grant of the Board’s application for enforcement.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/21/23-124.pdf
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