California Courts of Appeal
WILLIAMS v. IMPAX LABORATORIES, INC.
THE TRIAL COURT STRUCK CLASS ALLEGATIONS WITH LEAVE TO AMEND, WILLIAMS’ AMENDED COMPLAINT DID NOT COMPLY WITH THE COURT’S ORDER, AND THE COURT STRUCK CLASS ALLEGATIONS A SECOND TIME
Plaintiff Emielou Williams filed a class action against her former employer Defendant Impax Laboratories for various wage and hour violations. Impax filed a motion to strike class allegations, arguing that Williams was not an adequate class representative. The trial court granted the motion with leave to amend to add a different named plaintiff. Instead, Williams filed an amended complaint reiterating the stricken class allegations. The trial court struck the class allegations again. Williams appealed the second order striking class allegations.
AN OTHERWISE UNAPPEALABLE ORDER IS MUST BE APPEALED IF THE DEATH KNELL DOCTRINE APPLIES, OR THE RIGHT TO APPEAL IS WAIVED
The “death knell doctrine” is a narrow exception to the final judgment rule for appeals. Under this exception, an otherwise unappealable order is appealable when it effectively terminates the entire action as to a class, effectively equivalent to dismissal of the action as to everyone in the class except the named plaintiff. Under the death knell doctrine, an order that the plaintiff cannot maintain class claims but can maintain individual claims is immediately appealable. A party who fails to timely appeal an immediately appealable order loses the right to appeal the order later. To qualify as an appealable final judgment under the death knell doctrine, an order must (1) amount to a de facto final judgment for the absent plaintiffs where (2) the persistence of viable but potentially de minimis claims creates a risk that no formal final judgment will ever be entered. Orders that generally qualify include sustaining of a demurrer to class allegations without leave to amend, denial of a motion for class certification, and granting of a motion to decertify a class. The trial court’s first order struck the class allegations, thus removing them from the case and leaving Williams the sole plaintiff. Therefore, the order was immediately appealable under the death knell doctrine regardless of leave to amend. An order sustaining a demurrer to class allegations will generally qualify as a death knell order, whether or not leave to amend is granted. An order denying or decertifying a class will generally qualify as a death knell order only if it is entered with prejudice. Since Williams did not appeal the first order, she forfeited her right to appeal on the issue.
COA, 1st Dist., Div. 1. Filed 11/8/19. 41 Cal.App.5th 1060. Opinion by Presiding Justice Humes.
COUNTY OF VENTURA v. PUBLIC EMPLOYEE RELATIONS BOARD (SEIU Local 721)
SEIU SOUGHT TO REPRESENT NON-MEDICAL PERSONNEL
The Service Employees International Union (SEIU) Local 721 submitted to Ventura County a petition for recognition of its representation of certain non-medical personnel. Those personnel worked at medical clinics owned by private organizations that had contracts with Ventura County.
THE PERB DETERMINED THAT VENTURA COUNTY WAS AN EMPLOYER
The County rejected the petition, stating that it was not an employer of the workers whom SEIU sought to represent. SEIU then filed an unfair practice charge with the Public Employees Relations Board (PERB) under the Meyers-Milias-Brown Act (MMBA), governing pubic employer/employee relations.
The Administrative Law Judge dismissed the SEIU’s charge, agreeing with the County that the PERB lacked jurisdiction because the County was not the workers’ employer.
A three-member panel of the PERB reversed the ALJ, and ordered the County to process the SEIU’s petition. The County timely petitioned for writ relief to the Court of Appeal, pursuant to the provisions of the MMBA.
THERE WAS SUFFICIENT EVIDENCE TO FIND THAT THE COUNTY WAS AT LEAST A JOINT EMPLOYER
The court used the “clearly erroneous” standard to review the PERB’s legal determinations, pursuant to Boling v. Public Employee Relations Board, 5 Cal.5th 898 (2018). The PERB’s factual findings were reviewed pursuant to a “substantial evidence” standard, also under Boling.
The court had no difficulty finding that the County was at least a joint employer, and arguably a single employer of the workers being discussed. A joint employment relationship is established when the ostensible employer retains the right to control or co-determine essential terms and conditions of employment, whether that right is exercised or not.
Here, the County exercised substantial control over compensation and staffing decisions. Although the County did not necessarily approve particular hiring decisions, it did approve the ultimate budget which necessarily included such decisions, involving salaries as well as benefits. Clinics were required to share staff members among themselves, even if they were owned by different companies, pursuant to their agreement with the County. The Clinics were required to abide by the County’s policies, procedures, and code of conduct.
CONCLUSION
California courts continue to view “employer” as an expansive term, and employees may have more than one at any given time.
CELA INVOLVEMENT
Congratulations to CELA members A. Jacob Nalbandyan and Charles L. Shute, Jr., for this excellent result.
COA, 2nd Dist., Div. 6, Filed 11/21/19. Opinion by Justice Tangeman.
GLYNN v. SUPERIOR COURT OF LOS ANGELES COUNTY (ALLERGAN, INC.)
ALLERGAN TERMINATED GLYNN BECAUSE HE WAS ELIGIBLE FOR LONG TERM DISABILITY BENEFITS, EVEN THOUGH GLYNN WAS ABLE TO WORK AND HAD NOT APPLIED FOR LONG TERM DISABILITY BENEFITS
Petitioner John Glynn worked for Real Party Allergan in a sales position that required driving to doctors’ offices. Glynn took a medical leave due to a serious eye condition and provided a note from his doctor stating that Glynn could not safely drive. Glynn was able to return to work in a position that did not require driving, and Allergan’s reasonable accommodation policy included reassignment to a vacant position. Glynn repeatedly asked for help in getting a new job within Allergan and applied for several open positions, but Allergan never reassigned him. A temporary benefits employee sent Glynn a letter informing him that his employment was terminated effective immediately because he could not return to work by a certain date with or without reasonable accommodation, and that he was approved for Long Term Disability (“LTD”). The temp claimed a mistaken belief that she was required to terminate Glynn once he became eligible for LTD. Glynn had never applied for LTD. The trial court granted summary adjudication of Glynn’s disability discrimination and retaliation causes of action. Glynn filed a petition for writ of mandate. The Court of Appeal issued an alternative writ ordering the trial court to vacate its summary adjudication order and enter a new order denying summary adjudication of disability discrimination and retaliation. The trial court refused to change its order.
THERE IS DIRECT EVIDENCE OF DISCRIMINATION WHERE THE EMPLOYER’S ADVERSE ACTION WAS MOTIVATED BY THE PLAINTIFF’S DISABILITY
The McDonnell Douglas burden-shifting framework does not apply when the plaintiff presents direct evidence of discrimination. In disability discrimination cases, the threshold issue is whether there is direct evidence that the motive for the employer’s conduct was related to the employee’s physical or mental condition. The employee is not required to prove animosity or ill will because disability discrimination laws protect an employee from the employer’s erroneous or mistaken beliefs about the employee’s disability. Since Glynn provided direct evidence of disability discrimination, that Allergan terminated him because the temp mistakenly believed he was unable to work, he provided sufficient evidence to defeat summary adjudication. However, the McDonnell Douglas framework does apply to FEHA retaliation claims. Glynn sent four emails complaining that Allergan was failing to accommodate his disability. Glynn was terminated two months after he complained, and temporal proximity is sufficient to shift the burden to the employer to articulate a nondiscriminatory reason for the termination. Allergan failed to articulate any legitimate nondiscriminatory reason for the termination. Therefore, grant of summary adjudication on retaliation was improper.
CELA INVOLVEMENT
Congratulations to CELA members Frank Magnanimo and Tracy Fehr!
COA, 2nd Dist., Div. 4. Filed 11/13/19. 42 Cal.App.5th 47. Opinion by Justice Currey.
CARROLL v. CITY AND COUNTY OF SAN FRANCISCO
PLAINTIFF CARROLL COLLECTED DISABILITY RETIREMENT PAYMENTS FOR SEVENTEEN YEARS BEFORE REALIZING THAT THE PAYMENT CALCULATION WAS DISCRIMINATORY
After fifteen years of employment, Plaintiff Joyce Carroll applied for disability retirement from her job with Defendant City and County of San Francisco. She began receiving monthly retirement disability payments in 2000, at age 58. The Charter for the City contained a formula for the calculation of benefits for employees who retired due to disability. The Charter’s formula assumed that disabled employees would have worked until age 60, had they not become disabled, and calculated benefits based on that assumption. As a result, employees who took disability retirement at a younger age often received greater benefits. Carroll filed a class action accusing the City of age discrimination. She alleged that she learned of the discrimination in July 2017, more than seventeen years after she retired. The City demurred based on statute of limitations. The Court sustained the demurrer, and Carroll appealed.
DISCRIMINATION OCCURRED EACH TIME THE CITY MADE A DISABILITY RETIREMENT PAYMENT TO CARROLL
An employer’s discriminatory decision to take an adverse action is actionable when made and also when unlawful acts or practices occur pursuant to that decision. Here, discrimination logically occurred when the City paid the allegedly discriminatory retirement benefits. Therefore, all payments falling within one year of Carroll’s DFEH complaint were actionable. Whether earlier payments were actionable was not before the Court in this case. However, the Court stated that the unfavorable Florida v. Long U.S. Supreme Court decision did not govern here, leaving the door open for argument that multiple years of damages were recoverable. Carroll argued continuing violation under the Alch v. Superior Court systemic policy of discrimination rubric, not the continuing violation theory from Richards v. CH2M Hill. Alch held that plaintiffs are not barred by the statute of limitations even if the claims result from an entrenched policy that began years earlier. However, Alch also held that the plaintiffs could assert claims only within the period covered by the DFEH complaint. Therefore, Carroll could pursue class claims for the one-year period prior to her DFEH complaint, even though the discriminatory practice began many years earlier.
CELA INVOLVEMENT
Congratulations to CELA members Brent Robinson!
COA, 1st Dist., Div. Filed 10/31/19. 41 Cal.App.5th 805. Opinion by Justice Brown.