California Courts of Appeal
AGRICULTURAL LAB. RELATIONS BD. v. SUP. CT.
“Under the Alatorre–Zenovich–Dunlap–Berman Agricultural Labor Relations Act (Lab. Code, § 1140; the Act), the Agricultural Labor Relations Board (§ 1141 et seq.; the board) adjudicates administrative complaints of unfair labor practices committed by agricultural employers, labor organizations, and their agents. (§§ 1153–1155.7, 1160–1160.3.) The board’s general counsel (general counsel) serves as the prosecutor in those administrative proceedings, with “final authority, on behalf of the board, with respect to the investigation of charges and issuance of complaints [for unfair labor practices], and with respect to the prosecution of such complaints before the board.” (§ 1149.) In one area, however, the Act conveys a prosecutorial power with respect to unfair labor practices upon the board, rather than upon general counsel; namely, the power to seek injunctive relief in a superior court. (§ 1160.4.)
For some period of time before March 2015, the board had delegated plenary authority to seek injunctive relief under section 1160.4 to general counsel. In March 2015, the board decided to change that delegation by requiring general counsel to obtain case-specific approval from the board for every request for injunctive relief.
In May 2015, general counsel asked the board to approve a proceeding for injunctive relief against Gerawan Farming, Inc. (Gerawan). The board gave its conditional approval to that proceeding. When Gerawan asked the board to disclose the communications between the board and general counsel regarding the matter under the California Public Records Act, the board refused, claiming privilege. Gerawan brought a writ proceeding in Sacramento County Superior Court seeking to force the board to disclose the requested communications, and the court ordered disclosure. The board brought the present writ proceeding in this court to challenge the superior court’s ruling.
For the reasons set forth hereafter, we conclude the superior court erred in ordering disclosure of the communications between the board and general counsel relating to the decision to seek injunctive relief against Gerawan because those communications are protected by the attorney-client privilege. As we will explain, even if due process concerns with respect to the pending administrative proceeding against Gerawan are raised by the communications at issue, those concerns do not preclude the attorney-client privilege from attaching to those communications, and because the communications are privileged, they are exempt from disclosure under the Public Records Act. Accordingly, we will direct that a writ of mandate issue ordering the superior court to vacate its order requiring disclosure of those communications and enter a new order denying Gerawan’s request for disclosure.”
The decision also provides guidance on how to respond to an alternative writ or order to show cause. “If the court issues an alternative writ or order to show cause, the respondent or any real party in interest, separately or jointly, may serve and file a return by demurrer, verified answer, or both.” (Cal. Rules of Court, rule 8.487(b)(1); see also Code Civ. Proc., § 1089 [when the court issues an alternative writ, “the party on whom the writ … has been served may make a return by demurrer, verified answer or both”].) … The submission of “a return with a verified answer or demurrer is not a technicality, but is an integral and critical step in the procedure for determining the merit of a petition for extraordinary relief.” (Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1085, 151 Cal.Rptr.3d 526.) One possible consequence of filing a return that contains neither a demurrer nor a verified answer is that the return will be stricken and not considered in determining the merits of the mandate petition. (See Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1287, 2 Cal.Rptr.3d 484.).”
Paul M. Starkey, Sacramento, and Todd M. Ratshin for Petitioner.
None for Respondent.
Irell & Manella, Los Angeles, and David A. Schwarz; Barsamian & Mood, Fresno, and Ronald H. Barsamian; Michael P. Mallery for Real Party in Interest.
Third District, 10/25/16 decision by Robie, Nicholson and Hoch concurring; ___ Cal.Rptr.3d ___, 2016 WL 6236427.
NGUYEN v. APPLIED MEDICAL RESOURCES CORP.
“Plaintiff Da Loc Nguyen appeals from the trial court’s order granting the motion of his former employer, defendant Applied Medical Resources Corporation, to compel arbitration based on an arbitration clause contained in his employment application. The court ordered plaintiff to submit his individual claims to arbitration and struck all class and representative claims except for the representative Private Attorney General Act (PAGA)1 cause of action.
Plaintiff contends the order is immediately appealable based on the death knell doctrine, which makes an order terminating class allegations but allowing individual claims to continue immediately appealable. He argues Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 189 Cal.Rptr.3d 134 (Munoz), which held that the death knell doctrine is inapplicable where a PAGA cause of action remains, was wrongly decided and should not be followed. We disagree but nevertheless treat the appeal as a petition for writ of mandate.
As to the merits of the appeal, plaintiff asserts the court erred in finding the arbitration clause was not unconscionable, severing the cost provision, and dismissing the class claims with prejudice. We reject all but the last argument. Based on the recent case of Sandquist v. Lebo Automotive Inc. (2016) 1 Cal.5th 233, 205 Cal.Rptr.3d 359, 376 P.3d 506 (Sandquist), on which we have received supplemental briefing from the parties, the trial court erred in dismissing the class claims because whether the arbitration provision contemplated class arbitration was a question for the arbitrator to decide.
We shall issue a preemptory writ of mandate commanding the trial court to vacate that portion of its order dismissing the class claims to allow the arbitrator to decide whether the arbitration clause permits arbitration on a class-wide basis. In all other respects, the peremptory writ challenging the order compelling arbitration is denied. We grant plaintiff’s request for judicial notice of the American Arbitration Association’s (AAA) Employment Arbitration Rules and Mediation Procedures, amended and effective June 1, 2009, Employment Arbitration Rules and Mediation Procedures, amended and effective November 1, 2009, and Supplemental Rules for Class Arbitrations.”
Quintilone & Associates and Richard E. Quintilone II, Lake Forest; Law Offices of John D. Trieu and John D. Trieu, Anaheim Hills, for Plaintiff and Appellant.
Jones Day, Steven M. Zadravecz, Irvine, and Edward S. Chang for Defendant and Respondent.
Fourth District, Division 3, 10/4/16 decision by Moore, Bedsworth and Fybel concurring.
SOTO v. MOTEL 6 OPERATING, L.P.
“Lidia Soto sued her former employer, Motel 6 Operating, L.P. (Motel), alleging Motel violated Labor Code section 226, subdivision (a) by failing to include the monetary amount of accrued vacation pay in its employees’ wage statements. Soto filed the action in her individual capacity and on behalf of all aggrieved workers under the Private Attorney General Act of 2004 (PAGA). (§ 2698 et seq.).
The court sustained Motel’s demurrer without leave to amend. We affirm. Section 226(a) does not require employers to include the monetary value of accrued paid vacation time in employee wage statements unless and until a payment is due at the termination of the employment relationship.”
Gaines & Gaines, Stephen H. Krumm, Encino, and Daniel F. Gaines, Calabasas, for Plaintiff and Appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, Spencer C. Skeen, San Diego, Jennifer L. Santa Maria, and Sarah A. Williams, San Diego, for Defendant and Respondent.
Fourth District, Division 1, 10/20/16 decision by Haller, Huffman and Nares concurring; ___ Cal.Rptr.3d ___; 2016 WL 6123927.
WALKER v. APPLE, INC.
“Stacey Walker and Tyler Walker (together, the Walkers), the plaintiffs in this putative class action against their former employer, Apple, Inc. (Apple), appeal the trial court’s order disqualifying their counsel, Hogue & Belong (the Firm). The trial court found automatic disqualification was required on the basis the Firm had a conflict of interest arising from its concurrent representation of the putative class in this case and the certified class in another wage-and-hour class action pending against Apple (Felczer v. Apple, Inc. (Super. Ct. San Diego County No. 37-2011-00102573-CU-OE-CTL) (Felczer)). Specifically, based on the parties’ litigation strategies and evidence Apple submitted in support of its disqualification motion, the trial court concluded that to advance the interests of its clients in this case, the Firm would need to cross-examine a client in the Felczer class (the Walkers’ store manager) in a manner adverse to that client.
On appeal, the Walkers contend the trial court erred by concluding (1) the store manager, as an unnamed member of the Felczer class, is a Firm client; (2) the Walkers’ and the store manager’s interests conflict; and (3) disqualification was automatic in the class action context. On the record before us—where a class has been certified in Felczer, and undisputed evidence establishes the store manager’s identity and her likely significant role in this case—we conclude the trial court did not err in finding the Firm represents the store manager and that a disqualifying conflict exists between her interests and the Walkers’ interests. Therefore, we affirm.”
Law Offices of Martin N. Buchanan and Martin N. Buchanan for Plaintiffs and Appellants.
Carothers Disante & Freudenberger, Timothy M. Freudenberger, Kent J. Sprinkle, Steven A. Micheli and Teresa W. Ghali for Defendant and Respondent.
Fourth District, Division 1, 9/28/16 decision by Haller, Nares and O’Rourke concurring, ordered published 12/28/16.
Ninth Circuit
ROLLINS v. COMMUNITY HOSPITAL of SAN BERNARDINO
“Plaintiff–Appellant Starla Rollins appeals the district court’s grant of summary judgment to Defendant SEIU–UHW, Rollins’s former union, on Rollins’s § 301 claim under the Labor Management Relations Act. We agree with Rollins that summary judgment was improperly granted, reverse the district court’s order, and remand for further proceedings consistent with this decision.”
The decisions reasoned, “While Rollins has demonstrated a violation of a “contract[ ] between an employer and a labor organization representing employees,” 29 U.S.C. § 185(a), her § 301 claim against the Union can prevail only if she also shows a “breach of the union’s duty of fair representation.” DelCostello, 462 U.S. at 164; see Bliesner, 464 F.3d at 913–14. “A union breaches its duty of fair representation when its ‘conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.’ ” Beck v. United Food &Commercial Workers Union, Local 99, 506 F.3d 874, 879 (9th Cir. 2007) (quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)). Rollins contends that the Union’s handling of her Seniority Agreement grievance was “arbitrary” because it failed to investigate adequately. “A union acts ‘arbitrarily’ when it simply ignores a meritorious grievance or handles it in a perfunctory manner.” Peterson v. Kennedy, 771 F.2d 1244, 1253–54 (9th Cir. 1985) (citing Vaca, 386 U.S. at 191). In order to avoid breaching the duty of fair representation, a Union must “conduct a ‘minimal investigation’ of a grievance that is brought to its attention.” Id. at 1254 (citing Tenorio v. NLRB, 680 F.2d 598, 601 (9th Cir. 1982)).
Rollins has submitted enough evidence that the Union processed her grievance “in a perfunctory manner” to allow her to survive the Union’s motion for summary judgment. Peterson, 771 F.2d at 1254. Considering the evidence in the light most favorable to Rollins, we reach this conclusion for three reasons.”
“First, the Union never seriously considered Rollins’s rights under the Seniority Agreement. … Second, the Union improperly lumped Rollins with other, non-similarly situated employees. … Third, the Union provided factually contested reasons for rejecting Rollins’s grievance. Although we will “not question whether the [Union’s] reasoning” for rejecting a grievance “was faulty or not,” Peters v. Burlington N. R. Co., 931 F.2d 534, 540 (9th Cir. 1990), when a grievance is “important and meritorious” a union must provide a “more substantial [ ] reason” for abandoning it. Gregg, 699 F.2d at 1016 (noting that the “merits of the grievance” are “relevant to the sufficiency of the union’s representation”); see also Peters, 931 F.2d at 540 (noting that, when evaluating whether a union acted arbitrarily, a court must “evaluate the strength of the employee’s grievance”). As explained above, Rollins has shown a breach of the Seniority Agreement and the CBA by the Hospital, thereby demonstrating that she had an important and meritorious grievance. The Union therefore needed to provide a “more substantial” reason for failing to pursue her claim.”
Douglas N. Silverstein (argued) and Michael Gregory Jacob, Kesluk Silverstein & Jacob P.C., Los Angeles, CA; Janet Gusdorff, Gusdorff Law P.C., Westlake Village, CA; for Plaintiff–Appellant.
Monica Guizar (argued), Jacob J. White, and Bruce A. Harland, Weinberg Roger & Rosenfeld, Los Angeles, CA, for Defendant–Appellee.
9th Cir. 10/26/16 decision by Fletcher, Gould concurring, and concurrence by Lemelle; ___ F.3d ___, 2016 WL 6246876.
ZIOBER v. BLB RESOURCES, INC.
“The plaintiff, Kevin Ziober, signed an agreement with his employer requiring the arbitration of legal disputes. Ziober later sued the employer, claiming that he was fired from his job after providing notice of his deployment to Afghanistan in the United States Navy Reserve. The lawsuit alleged violations of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which establishes employment rights for returning servicemembers. This case presents the question of whether USERRA prohibits the compelled arbitration of claims arising under its provisions. We join the other circuits to have considered the question and conclude that USERRA contains no such prohibition. We therefore affirm the district court’s order compelling arbitration and dismissing Ziober’s complaint.”
Justice Watford’s concurrence expressed doubts that the court was reaching the right decision. “A strong argument can be made that the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) contains a “contrary congressional command” overriding the Federal Arbitration Act’s pro-arbitration mandate. CompuCredit Corp. v. Greenwood, ––– U.S. ––––, 132 S.Ct. 665, 669, 181 L.Ed.2d 586 (2012). USERRA contains a provision that renders unenforceable any contract or agreement that “reduces, limits, or eliminates in any manner any right … provided by this chapter.” 38 U.S.C. § 4302(b). Kevin Ziober’s contract with his employer requires him to submit USERRA claims to final and binding arbitration. That contract certainly “limits”—and for all practical purposes “eliminates”—his right to litigate those claims in court.”
Peter Romer–Friedman (argued) and R. Joseph Barton, Cohen Milstein Sellers & Toll PLLC, Washington, D.C.; Kathryn S. Piscitelli, Orlando, FL; Thomas G. Jarrard, Law Office of Thomas Jarrard, PLLC, Spokane, WA; for Plaintiff–Appellant.
Lonnie D. Giamela (argued), Jimmie E. Johnson, and Nathan V. Okelberry, Fisher & Phillips LLP, Los Angeles, CA, for Defendant–Appellee.
9th Cir. 10/14/16 decision by Murguia, Bolton concurring, and concurrence by Watford; ___ F.3d ___, 2016 WL 5956733.