BNSF RAILWAY CO. v. TYRRELL

“The Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., makes railroads liable in money damages to their employees for on-the-job injuries. Respondent Robert Nelson, a North Dakota resident, brought a FELA suit against petitioner BNSF Railway Company (BNSF) in a Montana state court, alleging that he had sustained injuries while working for BNSF. Respondent Kelli Tyrrell, appointed in South Dakota as the administrator of her husband Brent Tyrrell’s estate, also sued BNSF under FELA in a Montana state court, alleging that Brent had developed a fatal cancer from his exposure to carcinogenic chemicals while working for BNSF. Neither worker was injured in Montana. Neither incorporated nor headquartered there, BNSF maintains less than 5% of its work force and about 6% of its total track mileage in the State. Contending that it is not “at home” in Montana, as required for the exercise of general personal jurisdiction under Daimler AG v. Bauman, 571 U.S. ––––, ––––, 134 S.Ct. 746, 769, 187 L.Ed.2d 624 BNSF moved to dismiss both suits. Its motion was granted in Nelson’s case and denied in Tyrrell’s. After consolidating the two cases, the Montana Supreme Court held that Montana courts could exercise general personal jurisdiction over BNSF because the railroad both “d[id] business” in the State within the meaning of 45 U.S.C. § 56 and was “found within” the State within the compass of Mont. Rule Civ. Proc. 4(b)(1). The due process limits articulated in Daimler, the court added, did not control because Daimler did not involve a FELA claim or a railroad defendant.”

Held:

[1] FELA does not authorize state courts to exercise personal jurisdiction over a railroad solely on the ground that the railroad does some business in their States, and

[2] Montana could not, consistent with due process, exercise general jurisdiction over railroad.

Reversed and remanded.

Andrew S. Tulumello, Washington, DC, for Petitioner. Julie A. Murray, Washington, DC, for Respondents.
Andrew S. Tulumello, Michael R. Huston, Sean J. Cooksey, Gibson, Dunn & Crutcher LLP, Washington, DC, for Petitioner.
Fredric A. Bremseth, Bremseth Law Firm, P.C., Minnetonka, MN, Robert S. Fain, Jr., Billings, MT, Julie A. Murray, Scott L. Nelson, Allison M. Zieve, Public Citizen Litigation Group, Washington, DC, for Respondents.
USSC 5/30/17 opinion by Ginsberg, Roberts, Kennedy, Thomas, Breyer, Alito, Kagan and Gorsuch concurring, Sotomayor concurring in part and dissenting in part; ___ S.Ct. ___, 2017 WL 2322834, 41 IER Cases 1809.

Full Decision

DHILLON v. JOHN MUIR HEALTH

“As a general rule, a litigant may appeal an adverse ruling only after the trial court renders a final judgment. (Code Civ. Proc., § 904.1.) The question in this case concerns the application of this general rule when a trial court has granted a petition for writ of administrative mandamus and remanded the matter for proceedings before an administrative body. The issuance of the writ did not definitively resolve the dispute between the parties, but it did mark the end of the writ proceeding in the trial court. Is the court’s order an appealable final judgment? We conclude that it is, and we reverse the contrary judgment of the Court of Appeal.”

Horvitz & Levy, David S. Ettinger, H. Thomas Watson, Burbank; DiCaro, Coppo & Popcke, Carlo Coppo, Michael R. Popcke, Carlsbad, Shelley A. Carder, San Diego; Hooper, Lundy & Bookman and Ross E. Campbell for Defendants and Appellants.
The Minnard Law Firm, Carla V. Minnard; The Arkin Law Firm and Sharon J. Arkin for Plaintiff and Respondent.
Cal. 5/25/2017 unanimous decision by Kruger; ___ P.3d ___, 2017 WL 2276525.

Full Decision

MENDOZA v. NORDSTROM, INC.

“The Ninth Circuit Court of Appeals has asked this court to resolve unsettled questions concerning the construction of the state’s day of rest statutes, Labor Code sections 550–558.1. (Mendoza v. Nordstrom, Inc. (9th Cir. 2015) 778 F.3d 834; see Cal. Rules of Court, rule 8.548.) These statutes prohibit an employer from “caus[ing] his employees to work more than six days in seven” (§ 552), but do not apply “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof” (§ 556).

The Ninth Circuit asks:

1. Is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?
2. Does the section 556 exemption for workers employed six hours or less per day apply so long as an employee works six hours or less on at least one day of the applicable week, or does it apply only when an employee works no more than six hours on each and every day of the week?
3. What does it mean for an employer to “cause” an employee to go without a day of rest (§ 552): force, coerce, pressure, schedule, encourage, reward, permit, or something else? (See Mendoza v. Nordstrom, Inc., supra, 778 F.3d at p. 837.)

We answer, as more fully explained below:

1. A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.
2. The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.
3. An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.”

Knapp, Petersen & Clarke, André E. Jardini and K.L. Myles, Glendale, for Plaintiff and Appellant. Clark & Treglio, Clark Law Group, R. Craig Clark, James M. Treglio, San Diego; The Markham Law Firm and David R. Markham, San Diego, for Intervener and Appellant.
Duchrow & Piano and David J. Duchrow, Santa Monica, for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant and Intervener and Appellant.
Littler Mendelson, Julie A. Dunne, Joshua D. Levine and Dawn Fonseca, San Diego, for Defendant and Respondent.
Luke A. Wake for National Federation of Independent Business Small Business Legal Center, CATO Institute, Reason Foundation, Manuel Cosme, Jr., Paul Cramer, Kieth Street, Stacy Antonpoulos, Nathan Foli, Steve Duvernay and Tibor Machan as Amici Curiae on behalf of Defendant and Respondent.
Julie Stahr and Lance C. Cidre for National Retail Federation as Amicus Curiae on behalf of Defendant and Respondent.
Cal. 5/8/2017 unanimous opinion by Werdergar; 2 Cal.5th 1074, 393 P.3d 375, 216 Cal.Rptr.3d 889, 17 Cal. Daily Op. Serv. 4303.

Full Decision

PARK v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY

The Supreme Court, Werdegar, J., held that FEHA claim for national origin discrimination did not arise from protected activity under anti-SLAPP statute, disapproving Nesson v. Northern Inyo County Local Hospital Dist., 204 Cal.App.4th 65, 138 Cal.Rptr.3d 446, DeCambre v. Rady Children’s Hospital-San Diego, 235 Cal.App.4th 1, 184 Cal.Rptr.3d 888, and Tuszynska v. Cunningham, 199 Cal.App.4th 257, 131 Cal.Rptr.3d 63.

“To combat lawsuits designed to chill the exercise of free speech and petition rights (typically known as strategic lawsuits against public participation, or SLAPPs), the Legislature has authorized a special motion to strike claims that are based on a defendant’s engagement in such protected activity. (See Code Civ. Proc., § 425.16, subd. (a).) We consider a question that has generated uncertainty in the Courts of Appeal: What nexus must a defendant show between a challenged claim and the defendant’s protected activity for the claim to be struck?

As we explain, a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted. Because the Court of Appeal ruled to the contrary, holding a claim alleging a discriminatory decision is subject to a motion to strike so long as protected speech or petitioning activity contributed to that decision, we reverse.”

[Ed. Note:  Please see Andrew Friedman’s Practice Guide article on page 8 for a comprehensive analysis of the use of the Anti-SLAPP provisions in employment cases.]

Towle, Denison, Smith & Maniscalco, Towle Denison & Maniscalco and Michael C. Denison, Los Angeles, for Defendant and Appellant.
Joseph T. Francke, Carmichael, and Steven J. André for Californians Aware, First Amendment Project, Penelope Canan, Libertarian Law Council, Angie Morfin Vargas, City Watch, Inc., and Consumer Attorneys of California as Amici Curiae on behalf of Defendant and Appellant.
Siegel & Yee, Jane E. Brunner and Alan S. Yee for Plaintiff and Respondent.
Davis Wright Tremaine, Thomas R. Burke, Nicolas A. Jampol and Diana Palacios, Los Angeles, for First Amendment Coalition as Amicus Curiae on behalf of Plaintiff and Respondent.
Briggs Law Corporation, Anthony N. Kim and Cory J. Briggs, San Diego, for San Diegans for Open Government and The Inland Oversight Committee as Amici Curiae on behalf of Plaintiff and Respondent.
Duchrow & Piano and David J. Duchrow, Santa Monica, for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Respondent.
Cal. 5/4/2017 unanimous opinion by Werdegar; 2 Cal.5th 1057, 393 P.3d 905, 217 Cal.Rptr.3d 130, 2017 Fair Empl.Prac.Cas. (BNA) 149,230, 17 Cal. Daily Op. Serv. 4203.

Full Decision

BARTONI v. AMERICAN MEDICAL RESPONSE WEST

“Current and former employees of an ambulance service company sued their employer, alleging that its meal and rest period policies violate California law. Their complaint alleges claims on behalf of a proposed class as well as non-class claims concerning those same meal and rest period policies under Labor Code section 2698 et seq., the Private Attorneys General Act of 2004 (PAGA).

Before us is plaintiffs’ appeal of the trial court’s denial of their motion for class certification. The appeal raises two issues. First, is the order denying class certification appealable under the “death knell” doctrine, where plaintiffs’ PAGA claims remain pending? Second, did the trial court err in denying class certification? We will exercise our discretion to treat the appeal as a writ petition, and therefore we need not decide the first question. We conclude that the trial court’s denial of class certification rests in part on an incorrect legal assumption about the nature of rest periods, and therefore we will remand part of the matter for further consideration.”

The decision explained, “In its brief discussion of plaintiffs’ overarching rest period claim, the trial court framed the issue as follows: “Here, Plaintiffs assert that AMR’s policy was for rest breaks to be taken ‘on-duty,’ i.e., during periods subject to ‘downtime’ control. In other words, Plaintiffs’ theory of liability similarly rests on the concept that a rest break is not ‘off-duty’ if the employee remains ‘on-call.’ As the court concluded in connection with the meal period claims, this theory is fundamentally flawed, and cannot support the conclusion that a uniform unlawful policy applied to the entire class. … [W]ithout a basis for a finding of uniformity, all rest break claims devolve to individual inquiries.”

The trial court reached this conclusion without the benefit of our Supreme Court’s decision in Augustus, which holds that on-call time is not off-duty and is not a rest period under California law. (Augustus, supra, 2 Cal.5th at pp. 269.) Because the trial court’s decision to deny class certification with respect to AMR’s overarching rest period policy rests on its legal conclusion that a rest period during which an employee remains on call may be considered an off-duty rest period, and because that conclusion is incorrect under Augustus, we must reverse and remand even if other reasons not relied upon might support the trial court’s decision. (Ayala, supra, 59 Cal.4th at p. 530.).”

Attorneys for Appellants Aaron D. Kaufman, David P. Pogrel, Leonard Carder LLP, Joshua Konecky, Todd M. Schneider, Schneider Wallace Cottrell Konecky, Wotkyns LLP, Kimberly A. Kralowec, Chad A. Saunders, The Kralowec Law Group, Theodore Franklin, Jannah V. Manansala, Weinberg Roger & Rosenfeld.
Attorney for Respondent Michael S. Kun, Epstein Becker & Green, PC.
First District, Division 2, 4/25/2017 decision by Miller, as modified on denial of rehearing on 5/24/2017, Kline and Richman concurring; ___ Cal.Rptr.3d ___, 2017 WL 2267277, 2017 Wage & Hour Cas.2d (BNA) 136, 113.

Order modifying decision and ordering publication:  https://scholar.google.com/scholar_case?case=15411659641456725581&q=BARTONI+v.+AMERICAN+MEDICAL+RESPONSE+WEST&hl=en&as_sdt=4,5

Original decision:  https://scholar.google.com/scholar_case?q=BARTONI+v.+AMERICAN+MEDICAL+RESPONSE+WEST&hl=en&as_sdt=4,5&case=11422997381168581614&scilh=0

Full Decision

GARCIA v. PEXCO, LLC

“Narciso Garcia appeals from an order granting defendant Pexco, LLC’s (Pexco) motion to compel arbitration. Garcia opposed the motion on the ground Pexco was not a party to the arbitration agreement. We find Garcia is equitably estopped from denying Pexco’s right to arbitrate and the agency exception applies. We affirm the order of the trial court compelling arbitration between Pexco and Garcia.”

The decision found, “Temporary staffing company Real Time Staffing Services, LLC doing business as Select Staffing (Real Time) hired Garcia in 2011 as an hourly employee. Real Time then assigned Garcia to work for Pexco. As part of the hiring process with Real Time, Garcia filled out an employment application which included an arbitration agreement between Garcia and Real Time. Pexco is not a signatory to the arbitration agreement.”

The decision reasoned, “Courts recognize exceptions to the general rule which allow non-signatories to compel arbitration of a dispute arising out of the scope of the agreement. (Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1513, 105 Cal.Rptr.3d 585.) One of the exceptions is equitable estoppel. (Ibid.) Under this exception, “a non-signatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claim when the causes of action against the nonsignatory are ‘intimately founded in and intertwined with’ the underlying contract obligations.” (Boucher, supra, 127 Cal.App.4th at p. 271, 25 Cal.Rptr.3d 440.) The doctrine applies where the claims are “ ‘ “based on the same facts and are inherently inseparable’ ” from the arbitrable claims against signatory defendants.” (Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1713, 1 Cal.Rptr.3d 328.)”

Further, “Like Boucher and unlike DMS Services, all of Garcia’s claims are intimately founded in and intertwined with his employment relationship with Real Time, which is governed by the employment agreement compelling arbitration. Garcia cannot avoid his obligation to arbitrate his causes of action arising out of his employment relationship by framing his claims as merely statutory. On these facts, it is inequitable for the arbitration about Garcia’s assignment with Pexco to proceed with Real Time, while preventing Pexco from participating. This is because Garcia’s claims against Pexco are rooted in his employment relationship with Real Time, and the governing arbitration agreement expressly includes statutory wage and hour claims. Garcia does not distinguish between Real Time and Pexco in any way. All of Garcia’s claims are based on the same facts alleged against Real Time. Garcia cannot attempt to link Pexco to Real Time to hold it liable for alleged wage and hour claims, while at the same time arguing the arbitration provision only applies to Real Time and not Pexco. Garcia agreed to arbitrate his wage and hour claims against his employer, and Garcia alleges Pexco and Real Time were his joint employers. Because the arbitration agreement controls Garcia’s employment, he is equitably estopped from refusing to arbitrate his claims with Pexco.”

Moreover, “The agency exception is another exception to the general rule that only a party to an arbitration agreement may enforce it. (Thomas v. Westlake (2012) 204 Cal.App.4th 605, 613, 139 Cal.Rptr.3d 114 (Thomas).) The exception applies, and a defendant may enforce the arbitration agreement, “when a plaintiff alleges a defendant acted as an agent of a party to an arbitration agreement….” (Id. at p. 614, 139 Cal.Rptr.3d 114.) Here, the operative complaint alleged Real Time and Pexco were acting as agents of one another and every cause of action alleged identical claims against “All Defendants” without any distinction.”

Rastegar Law Group, Farzad Rastegar, Torrance, Douglas W. Perlman, Joshua N. Lange for Plaintiff and Appellant. Klatte, Budensiek & Young-Agriesti, Ernest W. Klatte, III, Newport Beach, and Yeun C. Yim for Defendant and Respondent.
Fourth District, Division 3, 4/24/2017 decision by Ikola, Aronson and Thompson concurring , ordered published on 5/16/17; ___ Cal.Rptr.3d ___, 2017 WL 2123937, 17 Cal. Daily Op. Serv. 4511.

Publication Order:
https://scholar.google.com/scholar_case?q=GARCIA+v.+PEXCO,+LLC&hl=en&as_sdt=4,5&case=11014195466183908330&scilh=0

Decision:
https://scholar.google.com/scholar_case?q=GARCIA+v.+PEXCO,+LLC&hl=en&as_sdt=4,5&case=12874799384542635172&scilh=0

Full Decision

EEOC v. McLANE CO.

“This case returns to us on remand from the United States Supreme Court. In our earlier decision, we held that the district court erred by denying enforcement of an administrative subpoena issued by the Equal Employment Opportunity Commission (EEOC) to McLane Company. EEOC v. McLane Co., 804 F.3d 1051 (9th Cir. 2015), vacated, ––– U.S. ––––, 137 S.Ct. 1159, –––L.Ed.2d –––– (2017). The EEOC issued the subpoena as part of its investigation into a charge filed by Damiana Ochoa, a former employee of a McLane subsidiary. Ochoa alleged that McLane discriminated against her on the basis of sex when it fired her after she failed to pass a physical capability strength test. As relevant here, the subpoena requests “pedigree information” (name, Social Security number, last known address, and telephone number) for employees or prospective employees who took the test. In accordance with prevailing circuit precedent at the time, we reviewed de novo the district court’s ruling that the pedigree information was not relevant to the EEOC’s investigation. Id. at 1056. The Supreme Court vacated our judgment after concluding that a district court’s decision whether to enforce an EEOC subpoena should be reviewed for abuse of discretion. McLane Co. v. EEOC, ––– U.S. ––––, 137 S.Ct. 1159, 1164, ––– L.Ed.2d –––– (2017). The Court remanded the case so that we could re-evaluate the district court’s ruling under the proper standard of review. Id. at 1170. Having done so, we conclude that the district court abused its discretion by denying enforcement of the subpoena.”

James Tucker (argued), Attorney, P. David Lopez, General Counsel, Lorraine C. Davis, Acting Associate General Counsel, Daniel T. Vail, Acting Assistant General Counsel, U.S. Equal Employment Opportunity Commission, Washington, D.C., for Plaintiff-Appellant. Ronald E. Manthey (argued) and Ellen L. Perlioni, Morgan, Lewis & Bockius LLP, Dallas, Texas; Joshua R. Woodard and Ashley T. Kasarjian, Snell & Wilmer L.L.P., Phoenix, Arizona, for Defendant-Appellee.
Ninth Circuit 5/24/17 decision by Watford, Wallace and Smith concurring; ___ F.3d ___, 2017 WL 2261015, 130 Fair Empl.Prac.Cas. (BNA) 176.

Full Decision

ORZECHOWSKI v. THE BOEING COMPANY NON-UNION LONG-TERM DISABILITY PLAN, PLAN NUMBER 625

“Talana Orzechowski challenges Aetna Life Insurance Company’s (Aetna) decision to terminate her long-term disability benefits under a plan created by her employer, The Boeing Company (Boeing). Under the Employee Retirement Income Security Act of 1974 (ERISA), we may review a denial of benefits. Where a plan grants discretion to an administrator to determine benefits, we ordinarily review for abuse of discretion. By statute, however, California has voided such provisions conferring discretionary authority to ERISA plan administrators such as Aetna. Cal. Ins. Code § 10110.6(a). The district court held that California’s statute did not apply to Boeing’s plan and upheld Aetna’s denial of benefits to Orzechowski. We disagree and hold that § 10110.6(a) applies here. We reverse the district court’s judgment and remand the case to the district court to review Aetna’s decision de novo.”

Russell George Petti (argued), Law Offices of Russell G. Petti, La Canada, California; Glenn R. Kantor and Peter S. Sessions, Kantor & Kantor LLP, Northridge, California; for Plaintiff-Appellant. Ronald Keith Alberts, Matthew G. Kleiner, Jessica Wolff, Michelle L. Steinhardt, and Adelle Greenfield, Gordon & Rees LLP, Los Angeles, California, for Defendants-Appellees.
Ninth Circuit 5/11/17 decision by Bybee, Kozinski and Walter concurring; 856 F.3d 686, 17 Cal. Daily Op. Serv. 4382.

Full Decision