California Courts of Appeal
ATKINS v. CITY OF LOS ANGELES
“A jury found that the City of Los Angeles violated the rights of five recruit officers of the Los Angeles Police Department under the Fair Employment and Housing Act (FEHA) when the Department terminated or constructively discharged them from the Police Academy. Each of the recruits suffered temporary injuries while training at the Academy. At the time they were injured, the Department had been assigning injured recruits to light-duty administrative positions indefinitely until their injuries healed or they became permanently disabled. The Department ended this practice while the plaintiffs were still recuperating from their injuries. Rather than allowing them to remain in their light-duty assignments, the Department asked them to resign or the Department would terminate them, unless they could get immediate medical clearance to return to the Academy. None of the recruits was able to obtain the necessary clearance, and the Department terminated or constructively discharged all of them. The five recruit officers brought this action.
The jury found that the City unlawfully discriminated against the plaintiffs based on their physical disabilities, failed to provide them reasonable accommodations, and failed to engage in the interactive process required by FEHA. The City challenges the jury’s verdict on a number of grounds, including that the plaintiffs were not “qualified individuals” under FEHA because they could not perform the essential duties of a police recruit with or without a reasonable accommodation, and that the City was not required to accommodate the plaintiffs by making their temporary light-duty positions permanent or by transferring them to another job with the City. With respect to the plaintiffs’ claim for failure to engage in the interactive process, the City argues that because there were no open positions available for the plaintiffs, the City did not have to continue the required interactive process.
We agree that the plaintiffs were not “qualified individuals” under FEHA for purposes of their discrimination claim but conclude that they satisfied this requirement for their failure to accommodate claim. We further conclude that requiring the City to assign temporarily injured recruit officers to light-duty administrative assignments was not unreasonable as a matter of law in light of the City’s past policy and practice of doing so. Because we affirm the City’s liability on this basis, we do not reach the City’s challenge to the verdict on the plaintiffs’ claim for failure to engage in the interactive process.
The City also challenges the jury’s award of future economic damages as speculative and excessive. Despite the fact that the plaintiffs had completed only hours or weeks of their Academy training, the jury awarded each of them future economic losses through the time of their hypothetical retirements from the Department as veteran police officers. We agree with the City that such damages are unreasonably speculative. We therefore vacate that portion of the damages award, as well as, for now, the trial court’s award of attorneys’ fees and costs.”
[Editorial Note: The decision’s finding that the recruits were not “otherwise qualified” for their academy positions, and therefore could not proceed with their disability discrimination claim, is untenable. The FEHA provides that the determination of whether an employee is “otherwise qualified” is made after the employer has provided any necessary reasonable accommodation. (Gov. Code, § 12940, subd. (m); Cal. Code Regs., tit. 2, § 11069, subd. (d).) The decision found that the recruits were not “otherwise qualified” for their academy positions before the accommodation of temporary reassignment became effective by providing the recruits sufficient time to heal and request reinstatement. That is like finding an employee is not “otherwise qualified” during a recuperative leave of absence because he or she is precluded from working. See the Practice Guide article in this issue for a more detailed analysis.]
McNicholas & McNicholas, Matthew S. McNicholas, Douglas D. Winter, Los Angeles; Fullerton & Hanna, Lawrence J. Hanna, Van Nuys; Esner, Chang & Boyer and Stuart B. Esner for Plaintiffs and Respondents.
Michael N. Feuer, City Attorney, James P. Clark, Chief Deputy City Attorney, Thomas Peters, Chief Assistant City Attorney, Amy Jo Field, Assistant City Attorney, Blithe S. Bock and Paul Winnemore, Deputy City Attorneys, for Defendant and Appellant.
Second District, Division 7, 2/14/17 decision by Segal, Perluss and Keeny concurring; ___ Cal.Rptr.3d ___, 2017 WL 588127, 17 Cal. Daily Op. Serv. 1390.
DANIEL v. WAYANS
“On September 4, 2013, Pierre Daniel (Daniel), an actor, worked as an extra in a movie entitled, A Haunted House 2 (Open Road Films 2014). Marlon Wayans (Wayans) co-wrote, produced, and starred in the movie. In August 2014, Daniel sued Wayans and others, alleging, inter alia, that he was the victim of racial harassment because during his one day of work on the movie he was compared to a Black cartoon character and called “ ‘[n]igga.’ ” In response, Wayans, pursuant to Code of Civil Procedure section 425.16, moved to strike Daniel’s claims against him as a SLAPP suit (strategic lawsuit against public participation), arguing that all of Daniel’s claims arose from Wayans’s constitutional right of free speech because the core injury-producing conduct arose out of the creation of the movie and its promotion over the Internet. The trial court agreed with Wayans and also found that Daniel had failed to establish the probability that he would prevail on any of his claims against Wayans. As a result, the trial court entered judgment in favor of Wayans and awarded him his attorney fees.
On appeal, Daniel argues that the trial court erred with regard to its determination of the threshold issue in Wayans’s anti-SLAPP motion—that is, the conduct at issue was not part of the “ ‘creative process’ ” inherent in making the movie because it occurred when the cameras were not rolling and, as a result, did not involve the right of free speech or an issue of public interest. In the alternative, Daniel contends that even if the conduct at issue implicated Wayans’s right to free speech, he presented sufficient evidence to the trial court to establish a probability of prevailing. We find both of Daniel’s arguments to be unpersuasive. Accordingly, we affirm the judgment.”
Lui’s concurring and dissenting opinion stated, in sum, “Although I agree with the majority on some of its analysis, I disagree with the majority’s conclusions concerning both the scope of the creative process and the scope of the release that appellant Pierre Daniel (Daniel) signed. I also believe that Daniel demonstrated a reasonable probability that he would prevail on his cause of action for intentional infliction of emotional distress. Accordingly, I would reverse the trial court’s ruling in part and permit Daniel’s action to proceed on claims relating to both the alleged on-set conduct of respondent Marlon Wayans (Wayans) and to his Internet posting.”
Reisner & King, Adam J. Reisner, Tessa M. King, Sherman Oaks; Benedon & Serlin, Melinda W. Ebelhar and Douglas G. Benedon, Woodland Hills, for Plaintiff and Appellant.
Venable, William J. Briggs II, Celeste M. Brecht and Eric J. Bakewell, Los Angeles, for Defendant and Respondent.
Second District, Division 1, 2/9/17 decision by Johnson with Rothschild concurring, and Lui, J., filing concurring and dissenting opinion; ___ Cal.Rptr.3d ___, 2017 WL 526494, 17 Cal. Daily Op. Serv. 1193.
HAMILTON v. ORANGE COUNTY SHERIFF’S DEPARTMENT
“This appeal arises from an uncontested summary judgment. Plaintiff contends the court erred by not accepting the parties’ stipulation to continue the hearing on defendant’s summary judgment motion and the trial for 60 days. The parties had agreed to these continuances to allow plaintiff to take depositions of the witnesses whose declarations had been submitted in support of defendant’s pending summary judgment motion. Plaintiff had timely noticed these depositions but they could not go forward because defendant’s counsel was engaged in trial. The court had earlier granted defendant’s ex parte motion to continue the trial so that defendant’s summary judgment motion could be heard. Under these circumstances, we conclude the court abused its discretion by failing to accommodate counsel’s joint request for a further 60-day continuance. Accordingly, we reverse the judgment.”
Law Offices of Akudinobi & Ikonte, Emmanuel C. Akudinobi, and Chijioke O. Ikonte for Plaintiff and Appellant.
Lawrence Beach Allen & Choi, David D. Lawrence, Christina M. Sprenger, Glendale, and Daniel S. Cha, Santa Ana, for Defendant and Respondent.
Fourth District, Division 3, 2/7/16 decision by Ikola, O’Leary and Bedsworth concurring; ___ Cal.Rptr.3d ___, 2017 WL 591412, 17 Cal. Daily Op. Serv. 1420.
LEMKE v. SUTTER ROSEVILLE MEDICAL CENTER
“In this appeal, Diana Lemke challenges the trial court’s granting of summary judgment in favor of respondents Sutter Roseville Medical Center, Peter V. Hull, M.D., Debbie Madding, and Julie Fralick (collectively Sutter Roseville). Lemke was terminated from her employment as a registered nurse at Sutter Roseville after improper administration of narcotics to a patient and failure to properly monitor and document the patient’s condition. In response, Lemke filed an action against Sutter Roseville in which she claimed retaliation for whistleblowing, disability discrimination, failure to accommodate a disability, failure to engage in an interactive process, retaliation, harassment, failure to prevent retaliation, and defamation.
On appeal, Lemke addresses only her causes of action for retaliation, failure to prevent retaliation, and defamation. She contends (1) there is a triable issue of material fact as to whether Sutter Roseville’s stated reasons for terminating her employment were pretextual, (2) the same reasons establishing her claim for retaliation also compel reversal of the trial court’s dismissal of her claim for failure to prevent retaliation, (3) she presented sufficient evidence to demonstrate triable issues of material fact for her claim of defamation, and (4) the trial court erred in its evidentiary rulings related to the motion for summary judgment.
We conclude Lemke did not meet her burden to show Sutter Roseville’s stated reasons were merely a pretext for retaliating against her. On this basis, we also determine the trial court properly dismissed her claim of failure to prevent retaliation. As to her cause of action for defamation, we conclude Sutter Roseville’s statements were absolutely privileged because they were made in connection with its internal investigation and in an official proceeding before the California Board of Registered Nursing (Board). Finally, Lemke has forfeited her claim of evidentiary error for lack of any record citations or analysis of prejudice. Accordingly, we affirm.”
Lawrance A. Bohm, Bohm Law Group, Sacramento, CA, for Plaintiff and Appellant.
Jahmal T. Davis, Hanson Bridgett LLP, San Francisco, CA, for Defendants and Respondents.
Third District 2/19/17 decision by Hoch, Butz and Renner concurring, ordered partially published on 2/27/17; ___ Cal.Rptr. 3d ___, 2017 WL 527475.
MELAMED v. CEDARS-SINAI MEDICAL CENTER
“Dr. Hoomad Melamed (Plaintiff), a physician at Cedars-Sinai Medical Center, operated on a 12-year-old patient, causing complications requiring corrective surgery. The hospital suspended Plaintiff, who requested a peer review hearing challenging the suspension. Every level of administrative review upheld the suspension. Plaintiff did not seek mandamus review of these decisions. Plaintiff then filed suit against Cedars-Sinai Medical Center (Cedars), its medical staff, and the specific doctors involved in the summary suspension decision. The hospital filed an anti-SLAPP motion, contending that Plaintiff’s claims arose out of a protected activity—the medical staff’s peer review process—and that Plaintiff could not show a probability of success on the merits. The trial court granted the motion.
We affirm.”
The decision agreed with the trial court’s analysis. “Citing Kibler v. Northern Inyo County Local Hosp. Dist. (2006) 39 Cal.4th 192, 198 (Kibler), and Nesson v. Northern Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65, 78 (Nesson), the court found that Plaintiff’s allegations all related and arose from the hospital’s peer review proceedings, which qualified as an “official proceeding authorized by law” and thus constituted protected activity under section 425.16, subdivision (e)(2). Because Plaintiff’s claim arose from Defendants’ protected activity, the burden shifted to Plaintiff to submit admissible evidence supporting a prima facie case in his favor. However, Plaintiff could not establish a probability of success on the merits on any of his seven claims.”
With regard to the issue of probability of success on the merits, the decision concluded, “Before filing suit, Plaintiff had to exhaust both his administrative remedies (by undergoing the peer review process) and his judicial remedies (by seeking mandamus review of the peer review determinations).”
Greene, Broillet & Wheeler, Mark T. Quigley, Christian T.F. Nickerson; Esner, Chang & Boyer and Stuart B. Esner for Plaintiff and Appellant.
Glaser Weil Fink Howard Avchen & Shapiro, Patricia L. Glaser, Joel N. Klevens; Nossman, Mitchell J. Green; Greines, Martin, Stein & Richland, Robin Meadow and Jeffrey W. Raskin for Defendants and Respondents.
Second District, Division 1, 2/27/17 decision by Johnson, Chaney and Lui concurring; ___ Cal.Rptr.3d ___, 2017 WL 750493.
O’NEAL v. STANISLAUS COUNTY EMPLOYEES’ RETIREMENT ASSOCIATION
“Appellants, Michael R. O’Neal, Rhonda Biesemeier, and Dennis J. Nasrawi, appeal from the trial court’s grant of summary judgment against them, as well as several related evidentiary rulings. Appellants are members of the retirement system operated by respondent Stanislaus County Employees’ Retirement Association (StanCERA) through their retirement board (the board). The intervener in this case, County of Stanislaus (County), is one of several employers required to fund the StanCERA retirement system.
In the aftermath of the recent recession, StanCERA implemented several changes to the actuarial calculations used to determine how to amortize unfunded liabilities within the system and chose to utilize so-called non-valuation funds, money not used to ensure the overall system was actuarially sound, to reduce or replace required employer contributions. Appellants filed suit, arguing these actions constituted a breach of the constitutional fiduciary duties placed on the board of a county retirement system. Specifically, appellants alleged the adoption of an amortization rate for unfunded liabilities which included a period of negative amortization violated state law and constitutional mandates. Appellants further argued the use of non-valuation funds to reduce or replace required employer contributions did the same.
Upon cross-motions for summary judgment, the trial court concluded that none of the actions taken by the board were contrary to law and, finding no material issue of fact, determined summary judgment was properly granted to StanCERA and County. Appellants have appealed this ruling and the related denial of their cross-motion for summary judgment. Related to the summary judgment appeal, appellants raise several complaints with evidentiary rulings made by the trial court which led to the exclusion of appellants’ expert declarations and the introduction of evidence appellants contend should not have been considered on summary judgment.
… [W]e conclude the trial court correctly determined appellants were not entitled to summary judgment, but erred in determining no material issues of fact remained. We therefore reverse the grant of summary judgment to respondents and remand for proceedings consistent with this opinion. With respect to the evidentiary issues raised, we generally affirm the trial court, save for one issue, which has not been contested on appeal.”
Law Office of Michael A. Conger and Michael A. Conger; Richard H. Benes for Plaintiffs and Appellants.
Reed Smith, Harvey L. Leiderman and Jeffrey R. Rieger for Defendant and Respondent.Hanson Bridgett, Raymond F. Lynch, Adam W. Hofmann, and Jay Rapaport for Intervenor and Respondent.
Fifth District, 2/23/17 decision by Detjen, Gomes and Poochigian concurring; ___ Cal.Rptr.3d ___, 2017 WL 712743.
VAQUERO v. STONELEDGE FURNITURE LLC
“Are employees paid on commission entitled to separate compensation for rest periods mandated by state law? If so, do employers who keep track of hours worked, including rest periods, violate this requirement by paying employees a guaranteed minimum hourly rate as an advance on commissions earned in later pay periods? We answer both questions in the affirmative, and reverse the trial court’s ruling granting summary judgment in favor of the employer.”
The decision reasoned, “We agree with Bluford that Wage Order No. 7 requires employers to separately compensate employees for rest periods if an employer’s compensation plan does not already include a minimum hourly wage for such time. (See Gonzales, supra, 215 Cal.App.4th at pp. 48-49 [concluding that the identical language in Wage Order No. 4 requires employers to separately pay piece-rate workers for nonproductive time].)”
“ … Neither Bluford nor the federal cases applying California law involved employees paid on commission. Nor did any of those cases address the issue whether the requirement of separately compensating employees for rest periods applies to commissioned employees. We conclude, however, that Wage Order No. 7 applies equally to commissioned employees, employees paid by piece rate, or any other compensation system that does not separately account for rest breaks and other nonproductive time.
The plain language of Wage Order No. 7 covers employees paid by commission. (See Cal. Code Regs. tit. 8, § 11070, subd. 1 [applying to “all persons employed in the mercantile industry whether paid on a time, piece rate, commission, or other basis”]; id. at § 11070, subd. 2(O) [“wages” includes “amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation”].) Where, as here, the language of a wage order is unambiguous, it is dispositive. (Brinker, supra, 53 Cal.4th at p. 1028; see also Gonzales, supra, 215 Cal.App.4th at p. 49 [the wage order “does not allow any variance in its application based on the manner of compensation”].)”
“ … We agree with Stoneledge that, under the commission agreement in effect during the class period, the company did in fact keep track of hours worked, including rest periods. We also agree that the company treated “break time identically with other work time.” The problem with Stoneledge’s compensation system, however, is that the formula it used for determining commissions did not include any component that directly compensated sales associates for rest periods. Stoneledge merely multiplied weekly “Delivered Sales” (less returns and credits) by an applicable commission rate and paid that amount if it exceeded the minimum contractual rate. Like the compensation plans courts have found unlawful for failing to pay for nonproductive time, Stoneledge’s commission agreement did not compensate for rest periods taken by sales associates who earned a commission instead of the guaranteed minimum.”
“ … For sales associates whose commissions did not exceed the minimum rate in a given week, the company clawed back (by deducting from future paychecks) wages advanced to compensate employees for hours worked, including rest periods. The advances or draws against future commissions were not compensation for rest periods because they were not compensation at all. At best they were interest-free loans. Stoneledge cites no authority for the proposition that a loan for time spent resting is compensation for a rest period. To the contrary, taking back money paid to the employee effectively reduces either rest period compensation or the contractual commission rate, both of which violate California law.”
“ … Our conclusion does not cast doubt on the legality of commission-based compensation. Instead, we hold only that such compensation plans must separately account and pay for rest periods to comply with California law. Nor will our decision lead to hoards of lazy sales associates. The commission agreement in effect during the class period provided that a sales associate who failed to meet minimum sales expectations (which generated commissions well above the guaranteed minimum) was subject to disciplinary measures up to and including termination. Thus, employers like Stoneledge have methods to ensure that an employee’s productivity does not suffer as a result of complying with California law by paying a minimum wage for rest periods.”
Cohelan Khoury & Singer, Michael D. Singer, Jeff Geraci; Law Offices of Raphael A. Katri, Raphael A. Katri; Law Offices of Kevin T. Barnes, Kevin T. Barnes and Gregg Lander for Plaintiffs and Appellants.
Littler Mendelson, J. Kevin Lilly and Scott M. Lidman for Defendant and Respondent.
Second District, Division 7, 2/28/17 decisions by Segal, Perluss and Keeny concurring; ___ Cal.Rptr.3d ___, 2017 WL 770635.
VASSERMAN v. HENRY MAYO NEWHALL MEMORIAL HOSPITAL
“Plaintiff Tanya Vasserman sued her former employer, Henry Mayo Newhall Memorial Hospital (the Hospital) for violations of the California Labor Code and other statutes relating to meal and rest breaks, unpaid wages, and unpaid overtime compensation. The Hospital argued that the collective bargaining agreement relevant to Vasserman’s employment required her to arbitrate her claims. The trial court denied the Hospital’s motion to compel arbitration, and the Hospital appealed.
We affirm. The dispute before us is not over Vasserman’s substantive rights, but instead the forum in which those rights are to be determined. If those rights are to be determined only by arbitration, a collective bargaining agreement must make that clear. The collective bargaining agreement here required arbitration of claims arising under the agreement, but it did not include an explicitly stated, clear and unmistakable waiver of the right to a judicial forum for claims based on statute. The trial court therefore correctly denied the Hospital’s motion to compel arbitration.”
Epstein Becker & Green, Michael S. Kunand Kevin D. Sullivan, Los Angeles, for Defendant and Appellant.
Law Office of Joseph Antonelli, Joseph Antonelli and Janelle C. Carney, Chino Hills, for Plaintiff and Respondent.
Second District, Division 4, 2/7/17 decision by Collins, Epstein and Manella concurring, ___ Cal.Rptr.3d ___, 2017 WL 491700, 2017 L.R.R.M. (BNA) 36,705, 17 Cal. Daily Op. Serv. 1165.
Ninth Circuit
BRANDON v. MARICOPA COUNTY
“Appellee Maria Brandon worked for many years as a civil litigation attorney for the Maricopa County Attorney’s Office (MCAO), and later (briefly) as a direct employee of Maricopa County, defending the county and related entities in civil lawsuits, before again returning to her previous employment at the MCAO. During her time as a direct employee of the county she received a call at her office from a newspaper reporter inquiring about a case she was handling for the Maricopa County Sheriff’s Department. One of her comments to the reporter about the case was later published in an article in that newspaper. This article suggested that the county substantially increased settlement offers to avoid having key county officials testify.
After Brandon returned to the MCAO, county officials responsible for overseeing risk management and civil lawsuits against the county thought her conduct in talking about the case mentioned was unprofessional for a lawyer representing the county. In light of what they considered were justifiable misgivings regarding Brandon’s judgment, these officials requested that Brandon not be assigned further cases in which the county was a party and which involved risk management. Brandon was later terminated from employment with the MCAO. She filed a lawsuit against the county and certain county officials. A jury found for Brandon and against Maricopa County on her claim that she had been fired in retaliation for her exercise of First Amendment rights in speaking to the newspaper reporter, and against certain county officials for state-law based tortious interference with her employment contract. The district court entered judgment on the basis of the jury’s verdicts.
We reverse.”
As to Brandon’s interference claim, the decision reasoned, ‘Under Snow and McReynolds, no reasonable jury could conclude that Wilson and Armfield “improperly” interfered with Brandon’s employment contract (made for the express purpose of serving the county’s legal needs) when they requested reassignment of risk management cases to other MCAO lawyers. Arizona law’s respect for a client’s broad discretion in the selection of a legal representative of his or her own choosing further undergirds the propriety of Wilson and Armfield’s actions.”
As to Brandon’s Free Speech claim, “The district court accepted that the county’s “authority to discipline its employees for improper or harmful comments to the press” could bar Brandon’s First Amendment retaliation claim, but found that the defendants provided no evidence to show that Brandon’s statement violated any policy, contained confidential information, harmed the county, or interfered with her duties so as to outweigh her First Amendment protections. Connick v. Myers, 461 U.S. 138, 150–51 (1983). As such, the district court concluded that “Brandon’s speech was entitled to First Amendment protection” and declined to overturn the jury’s conclusion that Brandon was speaking as a citizen.
The error in the district court’s conclusion stemmed from its failure to undertake the “practical inquiry” required by Garcetti. Under Arizona law, as an attorney for the county Brandon had a broad fiduciary duty to her client – the county. In re Zang, 166 Ariz. 426, 430 (1990) (the “fiduciary duty to a client [is] the most important ethical duty a lawyer owes”). … With the legally defined scope of an attorney’s duties in mind, it becomes obvious that Brandon’s comments to the newspaper could not constitute constitutionally protected citizen speech under the principles from Dahlia.”
Kimberly A. Demarchi (argued) and Jared L. Sutton, Lewis Roca Rothgerber LLP, Phoenix, Arizona; Michele M. Iafrate, Iafrate & Associates, Phoenix, Arizona; for Defendants-Appellants.
Larry J. Cohen (argued), Cohen Law Firm, Phoenix, Arizona, for Plaintiff-Appellee.
Ninth Circuit, 2/23/17 decision by Bea, Ikuta and Restani concurring; ___ F.3d ___, 2017 WL 710474.
MAYES v. WINCO HOLDINGS, INC.
“Plaintiff Katie Mayes worked at WinCo, an Idaho Falls grocery store, for twelve years. During her final years at WinCo, Mayes supervised employees on the night-shift freight crew. On July 8, 2011, Mayes was fired for taking a stale cake from the store bakery to the break room to share with fellow employees and telling a loss prevention investigator that management had given her permission to do so. WinCo deemed these actions theft and dishonesty. It also determined that Mayes’s behavior rose to the level of gross misconduct under the store’s personnel policies. WinCo denied Mayes and her minor children benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). WinCo also denied Mayes credit for accrued vacation days.
Mayes argues that WinCo fired her not for theft and dishonesty but in order to put a man in charge of the freight crew. She brings three types of claims against WinCo: (1) gender discrimination claims under Title VII of the Civil Rights Act of 1964 and the Idaho Human Rights Act; (2) a claim under COBRA; and (3) wage claims under the Fair Labor Standards Act and the Idaho Wage Claim Act. The district court granted summary judgment to WinCo on all claims. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.”
This decision provides excellent, step by step, guidance on issues of direct evidence of pretext, stray remarks, same gender discrimination, proffered reasons unworthy of credence, and replacement by a less qualified person of the opposite gender. For example, “WinCo argues that Steen’s comments cannot constitute direct evidence of discriminatory animus because Steen did not fire Mayes. But the record on this point is murky, at best. In an interrogatory answer, WinCo admitted that Steen participated in the termination decision. Steen also testified in the unemployment hearing that she was involved in the decision. Steen further stated in her deposition that during the cake-taking investigation, she was in contact with McCartney, the employee who informed Mayes that she was being terminated.
Moreover, the animus of a supervisor can affect an employment decision if the supervisor “influenced or participated in the decisionmaking process.” Dominguez–Curry, 424 F.3d at 1039–40 (emphasis added). Even if the supervisor does not participate in the ultimate termination decision, a “supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.” Staub v. Proctor Hosp., 562 U.S. 411, 421, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011).”
The decision concluded that Mayes could proceed also on her claims of denial of COBRA and vacation pay based on her purported “gross misconduct” because “it cannot be determined at summary judgment whether WinCo’s stated reasons for firing Mayes were pretextual.”
Amanda E. Ulrich (argued) and DeAnne Casperson, Holden Kidwell Hahn & Crapo P.L.L.C., Idaho Falls, Idaho, for Plaintiffs–Appellants.
Anthony Dean Bennett (argued) and Pamela S. Howland, Holland & Hart LLP, Boise, Idaho, for Defendant–Appellee.
Ninth Circuit, 2/3/17 decision by Christen, McKeown and Tallman concurring; 846 F.3d 1274, 129 Fair Empl.Prac.Cas. (BNA) 1565, 17 Cal. Daily Op. Serv. 1047.
POUBLON v. C.H. ROBINSON CO.
“Plaintiff Lorrie Poublon entered into an agreement with defendants C.H. Robinson Co. and C.H. Robinson Worldwide, Inc. (collectively, “C.H. Robinson”) to arbitrate claims arising out of her employment. In the present action, the district court denied C.H. Robinson’s motion to stay, compel arbitration, and dismiss class and representative claims, concluding that the dispute resolution provision was unconscionable. We hold that the dispute resolution provision is not tainted with illegality and any invalid portions can be severed, and therefore reverse.”
The decision concluded, “In this case, severance is appropriate. Per C.H. Robinson’s concession, there is one unconscionable clause in the dispute resolution provision, the portion of the dispute resolution provision that permits C.H. Robinson, but not Poublon, to seek judicial resolution of specified claims. This provision can be extirpated without affecting the remainder of the paragraph and is “collateral to the main purpose of the contract,” which is to require arbitration of disputes. Id. Second, the waiver of representative claims is unenforceable to the extent it prevents an employee from bringing a PAGA action. This clause can be limited without affecting the remainder of the agreement. Iskanian, 59 Cal.4th at 391, 173 Cal.Rptr.3d 289, 327 P.3d 129 (holding that an employer “cannot compel the waiver of [the employee’s] representative PAGA claim but that the agreement is otherwise enforceable according to its terms”); see also Sakkab, 803 F.3d at 440 (limiting the PAGA waiver and holding that non-PAGA claims must be arbitrated). Finally, the fourth paragraph of the dispute resolution provision allowing modifications “to the extent necessary, consistent with [the agreement’s] fundamental purpose and intent, in order to make it enforceable” makes clear that the parties intended for any invalid portion of the agreement to be restricted.
Accordingly, we conclude that the dispute resolution provision is valid and enforceable once the judicial carve-out clause is extirpated and the waiver of representative claims is limited to non-PAGA claims, and the district court erred in holding otherwise.”
Jack S. Sholkoff (argued), Christopher W. Decker, and Kathleen J. Choi, Ogletree Deakins Nash Smoak & Stewart P.C., Los Angeles, California, for Defendants-Appellants.
Kyle R. Nordrehaug (argued) and Norman B. Blumenthal, Blumenthal Nordrehaug & Bhowmik, La Jolla, California, for Plaintiff-Appellee.
Ninth Circuit, 2/3/17 decision by Ikuta, Callahan and Bea concurring; 846 F.3d 1251, 17 Cal. Daily Op. Serv. 1051.
ZETWICK v. COUNTY OF YOLO
“The panel filed (1) an order recalling the mandate, granting a request for publication, and redesignating a memorandum disposition as an authored opinion with modifications, and (2) an opinion reversing the district court’s summary judgment in favor of the defendants in an action under Title VII and the California Fair Employment and Housing Act.
A county correctional officer alleged that the county sheriff created a sexually hostile work environment. The panel held that a reasonable juror could conclude that differences in the sheriff’s hugging of men and women were not, as the defendants argued, just “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and the opposite sex.” In addition, the district court’s contrary conclusion may have been influenced by application of incorrect legal standards. The panel held that hugging can create a hostile or abusive workplace when it is unwelcome and pervasive, and summary judgment on a hostile work environment claim is appropriate only if the defendant’s conduct was neither severe nor pervasive enough to alter the conditions of the plaintiff’s employment. The panel remanded the case to the district court for a trial on the merits of the plaintiff’s federal and state sexual harassment claims and her state claim of failing to prevent sexual harassment.”
“ … The first incorrect legal standard the district court applied involved extraction of a sort of black letter rule, from just a few cases, that courts do not consider hugs and kisses on the cheek to be outside the realm of common workplace behavior. Zetwick, 66 F. Supp. 3d at 1280–81. In support of this proposition, the district court cited three cases: Lefevre v. Design Prof’ls Ins. Cos., No. C 93-20720 RPA, 1994 WL 514020 (N.D. Cal. Sept. 15, 1994); Graves v. City of Durant, No. C 09-0061, 2010 WL 785850 (N.D. Iowa Mar. 5, 2010); and Joiner v. Wal-Mart Stores, Inc., 114 F. Supp. 2d 400, 409 (W.D.N.C. 2000). None of these decisions states or properly stands for that proposition. Furthermore, none identified either the number of times or the period of time over which unwelcome hugging occurred; they are factually distinguishable.
“ … The district court also applied an incorrect legal standard when it “f[ound] that Defendant Prieto’s conduct in this case was not severe and pervasive.” Zetwick, 66 F. Supp. 3d at 1285 (emphasis added). The proper standard, however, is whether the defendant’s conduct was “severe or pervasive.” Geo Grp., Inc., 816 F.3d at 1206 (emphasis added). Summary judgment is appropriate only if the conduct was “neither severe nor pervasive enough to alter the conditions of [Zetwick’s] employment.” Manatt v. Bank of Am., NA, 339 F.3d 792, 799 (9th Cir. 2003) (emphasis added).”
As to the trial court’s analysis of the record, the decision stated, “A reasonable juror could credit Zetwick’s testimony that Prieto’s conduct “was sufficiently severe or pervasive to alter the conditions of [Zetwick’s] employment and create an [objectively and subjectively] abusive working environment.” Craig, 496 F.3d at 1055. This is so, where her testimony is that Prieto hugged her more than one hundred times over the period from 1999 to 2012, that he hugged female employees much more often than male employees and, indeed, from Zetwick’s observations, he hugged female employees exclusively. Because a reasonable juror could find in Zetwick’s favor, summary judgment was inappropriate. Reza, 806 F.3d at 505.”
“ … Instead of giving proper consideration to the cumulative effect of the conduct at issue, the district court attempted to apply “a mathematically precise test” to determine whether or not Zetwick had generated genuine issues of material fact that the environment created by Prieto’s hugging was sufficiently hostile. See Harris, 510 U.S. at 22–23 (rejecting such a test).”
“ … We conclude that the district court had not properly considered the totality of the circumstances, however. For example, the district court failed to consider whether a reasonable juror would find that hugs, in the kind, number, frequency, and persistence described by Zetwick, create a hostile environment. … Zetwick is correct “that a hostile work environment is ambient and persistent, and that it continues to exist between overt manifestations.” Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108 n.1 (9th Cir. 1998).”
“ … The district court also completely overlooked legal recognition of the potentially greater impact of harassment from a supervisor and, indeed, the highest ranking officer in the department.”
“ … The district court also overlooked the import of its observation that Zetwick had stated in a deposition that it was difficult for her to go to work and that she was always stressed, suffered from anxiety, and took a sleep aid, which the district court conceded “[c]ertainly [would] interfere with an individual’s job.” Zetwick, 66 F. Supp. 3d at 1284.”
“ … It was also improper for the district court to disregard Zetwick’s evidence that Prieto hugged and kissed other women. Zetwick argues that such evidence helps to generate genuine issues of material fact that the environment was objectively hostile. We have long recognized that “[t]he sexual harassment of others, if shown to have occurred, is relevant and probative of [a defendant’s] general attitude of disrespect toward his female employees, and his sexual objectification of them.” Heyne v. Caruso, 69 F.3d 1475, 1479–81 (9th Cir. 1995); see also Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1036 (9th Cir. 2005) (concluding that evidence that other women were harassed showed that hostility pervaded the workplace and helped show that it was hostile).”
“ … As to one specific incident of Prieto’s conduct towards other women, the district court observed that Zetwick’s description of the incidents involving Malugani “do[ ] not survive factual scrutiny in discovery,” in light of Malugani’s declaration. Zetwick, 66 F. Supp. 3d at 1283. It was improper for the district court to determine that Zetwick’s testimony that Malugani was embarrassed by Prieto’s questions and hugs, based on her firsthand observation of the incident, was necessarily less credible than Malugani’s assertion, in her post hoc declaration, that she was embarrassed about her weight loss, but not by Prieto’s questions and hugs. A reasonable juror could conclude that Malugani had reasons not to complain about past treatment by her employer and to make a declaration, not subject to cross-examination, to support her employer’s position. This was the sort of conflict in the testimony that makes resolution of the issue at summary judgment inappropriate. Direct Techs., LLC, 836 F.3d at 1067. This conflict cannot be ignored, because it is not clear that one of the versions of the incident “is blatantly contradicted by the record, so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007).”
Manolo Olaso (argued) and Johnny L. Griffin, III, Law Offices of Johnny L. Griffin III, Sacramento, California, for Plaintiff-Appellant.
John A. Whitesides (argued), Cori R. Sarno, and Carolee G. Kilduff, Angelo Kilday & Kilduff LLP, Sacramento, California, for Defendants-Appellees.
Ninth Circuit, 2/23/17 decision by Bennett, Graber and Murguia concurring; ___ F.3d ___, 2017 WL 710476.
Other Significant Decisions
RHULE v. WAVEFRONT TECHNOLOGY, INC.
“Plaintiff and appellant Carlton Rhule (plaintiff) appeals the trial court’s award of $8,125.00 in attorney fees to defendant and respondent WaveFront Technology, Inc. (defendant). The trial court authorized defendant to seek an award of attorney fees as a condition of permitting plaintiff to withdraw admissions he mistakenly made in response to two requests for admission served by defendant. Our record on appeal includes no reporter’s transcript (or a suitable substitute therefor) of either the hearing on plaintiff’s motion to withdraw his mistaken admissions or the subsequent hearing at which the trial court ruled on defendant’s motion for attorney fees. Plaintiff nevertheless urges us to conclude the trial court’s attorney fees award was made without statutory authority and was an abuse of the trial court’s discretion. We reject both contentions.”
Mark Weidmann for Plaintiff and Appellant.
Johnson & Associates and William D. Johnson for Defendant and Appellant.
Second District, Division 5, 2/23/17 decision by Baker, Turner and Kriegler concurring; ___ Cal.Rptr.3d ___, 2017 WL 712633.
RINCON EV REALTY LLC v. CP III RINCON TOWERS INC.
“Plaintiffs Rincon EV Realty LLC, Rincon ET Realty LLC and Rincon Residential Towers LLC borrowed $110 million in 2007 from Bear Stearns Commercial Mortgage, Inc. (Bear Stearns) to finance the purchase of Rincon Towers, a San Francisco apartment complex (the Property). In 2010, after plaintiffs failed to repay the loan and after changes in the ownership of the loan, defendant CP III Rincon Towers, Inc. (CP III) purchased the Property at a nonjudicial foreclosure sale. Plaintiffs sued CP III and seven other entities who were involved in administering the loan, unsuccessful workout negotiations, and the eventual foreclosure sale, alleging various causes of action, some legal (breach of contract, fraud, slander of title, trade secret misappropriation), and some equitable (unfair competition, to set aside the foreclosure sale, and for an accounting). After a bench trial, the trial court rejected all of these claims in a detailed and thoughtful statement of decision.
On appeal from the ensuing judgment, plaintiffs contend (1) the trial court erred by striking their demand for a jury trial, (2) a discovery referee appointed by the court made erroneous rulings that were prejudicial and denied plaintiffs a fair trial, (3) the court erred in analyzing plaintiffs’ unfair competition claim, (4) the foreclosure sale is void because CP III did not own the loan and had no right to foreclose, and (5) prejudicial irregularities in the foreclosure sale require that it be set aside. In the published portion of this opinion, we conclude the court erred by striking plaintiffs’ jury demand, which applied only to their legal causes of action; in the unpublished portion of the opinion, we reject plaintiffs’ remaining appellate challenges. As a result, we reverse the judgment and remand for further proceedings as to the legal causes of action, while affirming as to the equitable causes of action.”
Boies, Schiller & Flexner, Jeremy M. Goldman, Christine Y. Wong, Nora K.C. Flum, Oakland; Locke Lord, Kathleen Smalley, Los Angeles; Boersch Shapiro and David Shapiro, Los Angeles, for Plaintiffs and Appellants.
Manatt, Phelps & Phillips, Barry W. Lee, Lenard G. Weiss, Christian E. Baker, Christopher A. Rheinheimer, San Francisco; and Jerome B. Falk, Jr., San Francisco, for Defendants and Respondents.
Hunton & Williams, Y. Anna Suh, Patrick L. Robson, and Joseph J. Saltarelli for nonparty Bank of America.
First District, Division 4, 1/31/17 decision by Streeter, Reardon and Rivera concurring; ___ Cal.Rptr.3d ___, 8 Cal.App.5th 1, 2017 WL 429267, 17 Cal. Daily Op. Serv. 940, 2017 Daily Journal D.A.R. 929.