California Courts of Appeal
DANG v. MARUICHI AMERICAN CORP.
“Plaintiff and appellant Khanh Dang sued his former employer, defendant and respondent Maruichi American Corporation (Maruichi), for wrongful termination in violation of public policy, claiming that Maruichi discharged him for engaging in concerted activity relating to unionizing efforts. The trial court granted summary judgment in Maruichi’s favor. The court found it lacked jurisdiction because Dang’s claim was preempted by the National Labor Relations Act (NLRA; 29 U.S.C. § 151 et seq.) under San Diego Unions v. Garmon (1959) 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (Garmon).
On appeal, Dang argues that, as a supervisor, he is not covered under the NLRA, and that the NLRA does not reach his claim. Based on the evidence presented on the motion for summary judgment, we find there is no basis to conclude Dang’s claim is arguably subject to the NLRA. Accordingly, we reverse.”
The decision reasoned, “Supervisors are explicitly excluded from the definition of “employee” under the NLRA and therefore are not entitled to the protections afforded by section 7. (29 U.S.C. 152(3); Operating Engineers v. Jones (1983) 460 U.S. 669, 671, fn. 1, 103 S.Ct. 1453, 75 L.Ed.2d 368.) Nevertheless, discharge of a supervisor may constitute an unfair labor practice under section 8, subdivision (a)(1), and therefore be subject to the NLRA, “if it infringes on the [section] 7 rights of the employer’s nonsupervisory employees.” (Davis, supra, 476 U.S. 380, 385, fn. 4, 106 S.Ct. 1904.)”
“ … Maruichi’s stated reason for terminating Dang’s employment—that he mistreated employees, spurring them to consider unionizing—was not arguably likely to impact its employees’ ability to engage in activity protected by section 7. … Thus, based on the evidence presented, there was no reasonable basis to find that Dang’s discharge was arguably prohibited by the NLRA, and the trial court erred by finding preemption. (Davis, supra, 476 U.S. 380, 394, 106 S.Ct. 1904 [“no dispute” that if the plaintiff was a supervisor he was legally fired “and there is no pre-emption”]; Balog v. LRJV, Inc. (1988) 204 Cal.App.3d 1295, 1302, 250 Cal.Rptr. 766 [“The Parker–Robb board specifically differentiated between the unlawful (and thus preempted) discharge of supervisors who refuse to commit unfair labor practices and the lawful (and therefore not preempted) discharge of supervisors for their participation in union or concerted activities.”].)”
Gould & Associates, Michael A. Gould, Aarin A. Zeif, Tustin, for Plaintiff and Appellant.
Cummins & White, Larry M. Arnold, Erick J. Becker, Newport Beach, Scott R. Carpenter for Defendant and Respondent.
Second District, Division 2, 9/1/2016 decision by Boren, Ashmann-Gerst and Chavez concurring; ___ Cal.Rptr.3d ___, 2016 WL 5272661.
HOTT v. COLLEGE OF THE SEQUOIAS COMMUNITY COLLEGE DISTRICT
“Plaintiff Lisa Hott (Hott) is a former College of the Sequoias Community College District (COS) administrator whose position was eliminated due to budget cuts. Pursuant to Education Code section 87458,1 COS offered Hott, who did not have any prior faculty experience, a position as a first-year probationary faculty member, which she accepted. COS determined Hott’s faculty salary under the terms of the collective bargaining agreement between COS and its faculty members, and gave her credit for five years’ occupational experience, which was the maximum credit she could receive. Hott subsequently filed a complaint for declaratory relief against COS, alleging that COS placed her in the wrong “step” on the faculty academic salary schedule because it should have given her full credit for her 15 years of administrative experience. The trial court agreed with Hott, finding that pursuant to a handbook for administrative employees, she was entitled to year-for-year credit for her total years of employment at COS.
On appeal from the resulting judgment, COS contends the trial court erred: (1) in hearing and determining Hott’s claim because it falls within the exclusive jurisdiction of the Public Employment Relations Board (PERB); and (2) the trial court erred in finding that Hott was entitled to a salary greater than that provided for in the collective bargaining agreement. We agree with COS’s second contention and reverse the judgment.”
Stubb & Leone, Louis A. Leone, Claudia Leed, Walnut Creek, and Christopher Vincent for Defendant and Appellant.
Herr Pederson & Berglund, Leonard C. Herr, Kris B. Pedersen, Visalia, and Rhea Ikemiya for Plaintiff and Respondent.
Fifth District 9/6/2016 decision by Gomes, Hill and Kane concurring; ___ Cal.Rptr.3d ___, 3 Cal.App.5th 84, 2016 WL 4611056, 16 Cal. Daily Op. Serv. 9911, 2016 Daily Journal D.A.R. 9306.
PENILLA v. WESTMONT CORP.
Appellant Westmont Corporation doing business as Wildwood Mobile Home Country Club (“Westmont”) owns land located in Hacienda Heights, Los Angeles County. David Penilla and 60 other named plaintiffs are primarily low-income mobilehome owners who rent the land. After plaintiffs filed a first amended complaint (“FAC”) against Westmont and its employees or agents (collectively “appellants”) alleging contract, tort and statutory causes of action, appellants filed a motion to compel respondents Penilla and 45 other named plaintiffs to arbitrate those claims. The trial court denied the motion to compel, finding the arbitration provision contained in the rental agreements unconscionable and thus unenforceable. We conclude the arbitration provision was procedurally unconscionable, as it failed to disclose prohibitively expensive arbitration fees and was neither provided in a Spanish-language copy nor explained to respondents who did not understand written English. We further conclude the arbitration provision was substantively unconscionable as it imposed arbitral fees that were unaffordable or would have substantially deterred respondents from asserting their claims. The provision’s unreasonably shortened limitations periods for many of the asserted causes of action and its limitation on the remedies available in arbitration for statutory claims further support a finding of substantive unconscionability. Accordingly, we affirm.
Citron & Citron, Santa Monica, Thomas H. Citron, Joel F. Citron and Katherine A. Tatikian, for Defendants and Appellants.
Haney & Young, Steven H. Haney and Gregory L. Young, for Plaintiffs and Respondents.
Second District, Division 4, 9/9/2016 decision by Manella, Epstein and Willhite concurring; Cal.Rptr.3d —-, 3 Cal.App.5th 205, 2016 WL 4709888, 2016 Daily Journal D.A.R. 9442.
PEREZ v. U–HAUL CO. OF CALIFORNIA
“Plaintiffs Sergio Perez and Erick Veliz Ramos filed a representative action under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, §§ 2698 et seq.), alleging that U–Haul Company of California (U–Haul) violated several provisions of the Labor Code, including overtime and meal break requirements. U–Haul filed a motion to compel plaintiffs to individually arbitrate whether they qualified as “aggrieved employee[s],” and therefore had standing to pursue a PAGA claim. (See Labor Code, § 2699, subd. (a).) U–Haul asserted that all other issues regarding the PAGA claim should be stayed pending resolution of the arbitration. The trial court denied the motion, concluding that California law prohibits an employer from compelling an employee to split the litigation of a PAGA claim between multiple forums. We affirm.”
The decision reasoned, “In support of its assertion that plaintiffs agreed to arbitrate whether they had standing to bring a PAGA claim, U–Haul relies on a broadly-worded clause stating that the parties would arbitrate “any and all claims and disputes … in any way related to [plaintiffs’] employment.” U–Haul contends that because plaintiffs’ standing to bring a PAGA claim involves issues related to their employment, the arbitration provision necessarily applies. The agreement, however, contains an additional clause stating that the parties would not seek arbitration (or litigation) of any “claims as a representative … or in a private attorney general capacity.” U–Haul acknowledges that this language demonstrates neither party agreed (nor could be compelled) to arbitrate representative claims. Iskanian, in turn, held that every PAGA action, including one brought on behalf of a single employee, is a representative claim. (Iskanian, supra, 59 Cal.4th at p. 387, 173 Cal.Rptr.3d 289, 327 P.3d 129 [“every PAGA action, whether seeking penalties for Labor Code violations as to only one aggrieved employee—the plaintiff bringing the action—or as to other employees as well, is a representative action on behalf of the state”] [emphasis in original].) Given that the parties did not agree to arbitrate representative claims, and that a PAGA action is by definition a form of representative claim, we conclude that PAGA claims are categorically excluded from the arbitration agreement. Moreover, the agreement contains no language suggesting that despite this exclusion of representative claims, the parties did agree to arbitrate whether the complaining party had standing to initiate a representative claim in court. We fail to see how an agreement that excludes representative claims can nonetheless be reasonably interpreted to require plaintiffs to arbitrate their standing to bring a representative claim.”
The decision further determined that even if the arbitration agreement had included a provision that the arbitrator would determine whether the PAGA representatives had standing, it would be illegal under Williams v. Superior Court (2015) 237 Cal.App.4th 642, 188 Cal.Rptr.3d 83 and Iskanian, and thus unenforceable.
Gregg A. Farley, Los Angeles, and Law Offices of Gregg A. Farley; Sahag Majarian, Tarzana, and Law Offices of Sahag Majarian, for Plaintiff and Respondent Sergio Lennin Perez.
Larry W. Lee, Nicolas Rosenthal and Diversity Law Group; Sherry Jung, Los Angeles, and Law Offices of Sherry Jung, for Plaintiff and Respondent Erick Veliz.
Alston & Bird, James R. Evans, Jr. and Ryan T. McCoy, Los Angeles, for Defendant and Appellant.
Second District, Division 7, 9/16/2016 decision by Zelon, Segal and Garnett concurring; ___ Cal.Rptr.3d ___, 2016 WL 4938809.
Ninth Circuit
HERRERA v. COMMAND SECURITY CORP.
“This case arises from a dispute between a union and an employer who wished to remove the union as its employees’ designated representative. The employer is Command Security Corporation d/b/a Aviation Safeguards (“Aviation Safeguards”). The union is the United Service Workers West of the Service Employees International Union (“the Union”). The Union sued Aviation Safeguards for violations of the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151–165. Aviation Safeguards moved for summary judgment, and the Union filed a cross-motion for summary judgment. The District Court granted Aviation Safeguards’s motion for summary judgment and denied the Union’s cross-motion for summary judgment.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the grant of summary judgment in favor of Aviation Safeguards.
We hold that equitable tolling principles apply to the Union’s unlawful interference and coercion claim under the RLA, 45 U.S.C. § 152, [the] Third and Fourth [claims]. We remand and direct the District Court to grant summary judgment in favor of the Union on its claim for unlawful interference and coercion under the RLA, 45 U.S.C. § 152, [the] Third and Fourth [claims].
We also hold that the District Court erred in finding that it lacked subject matter jurisdiction over the Union’s status quo claim under the RLA, 45 U.S.C. §§ 152, [the] Seventh [claim]; 155; and 156. We remand this claim for the limited purpose of determining whether this claim is timely and, if the claim is timely, we direct the District Court to grant summary judgment in favor of the Union on its status quo claim under RLA §§ 152, [the] Seventh [claim]; 155; and 156.
We remand and direct the District Court to grant summary judgment in favor of the Union on its failure to mediate claim under the RLA, 45 U.S.C. § 152, [the] First [claim].”
David P. Dean (argued) and Darin M. Dalmat, James & Hoffman P.C., Washington, D.C.; Antonio Ruiz, Weinberg Roger & Rosenfeld PC, Alameda, California; for Plaintiffs–Appellants.
Mark S. Spring (argued), Carothers Disante & Freudenberger LLP, Sacramento, California; Alfredo Ortega and Steven M. Schneider, Mitchell Silberberg & Knupp LLP, Los Angeles, California; for Defendant–Appellee.
Ninth Cir. 9/14/16 decision by Pregerson, Paez and Nguyen concurring; ___ F.3d ___, 2016 WL 4887726, 207 L.R.R.M. (BNA) 3225.
KERR v. JEWELL
“Leslie Kerr, a former employee of the United States Fish and Wildlife Service (FWS), contended she was discriminated and retaliated against in violation of Title VII and retaliated against in violation of the Whistleblower Protection Act (WPA). Kerr presented her claims to FWS’s Equal Employment Opportunity (EEO) office, which denied her Title VII claims on the merits and dismissed her WPA claim for lack of jurisdiction. Rather than appealing the EEO office’s decision to the Merit Systems Protection Board (MSPB), which had jurisdiction to review the WPA claim on the merits, Kerr filed a civil action in federal district court, asserting both her Title VII claims and her WPA claim. The district court dismissed the WPA claim for lack of jurisdiction based on Kerr’s failure to present the claim to the MSPB. Kerr appeals, and we affirm.
We hold, first, that the statutory scheme governing the Civil Service Reform Act (CSRA) and the WPA did not authorize Kerr to file her WPA claim in district court without first presenting it to the MSPB. Kerr has what is known as a “mixed case,” because she challenges a serious personnel action—her removal—on account of discrimination. In a mixed case, a decision of an agency’s EEO office is subject to review in the district court, without an intervening stop at the MSPB. See 5 U.S.C. § 7702(a)(2). Kerr was free to take her Title VII claims directly from FWS’s EEO office to district court, bypassing the MSPB. Nothing in § 7702(a)(2), however, authorizes an employee to present an entirely unreviewed WPA claim in district court without first presenting it to the MSPB.
Second, although a federal district court can exercise federal question jurisdiction under 28 U.S.C. § 1331, that general grant of jurisdiction does not apply where it is fairly discernible that Congress intended a statutory review scheme to provide the exclusive avenue to judicial review. See Elgin v. Dep’t of Treasury, ––– U.S. ––––, 132 S.Ct. 2126, 2132–33, 183 L.Ed.2d 1 (2012). In Elgin, the Supreme Court applied this principle to the CSRA, holding that, “[g]iven the painstaking detail with which the CSRA sets out the method for covered employees to obtain review of adverse employment actions, it is fairly discernible that Congress intended to deny such employees an additional avenue of review in district court.” Id. at 2134. The WPA is part of the CSRA, and nothing in the WPA alters the conclusion the Court reached in Elgin. The statutory scheme places exclusive original jurisdiction in the MSPB. Accordingly, the scheme precluded the district court from exercising original jurisdiction over Kerr’s WPA claim.”
Stephani Ayers (argued) and Thad M. Guyer, T.M. Guyer & Friends, P.C., Medford, Oregon, for Plaintiff–Appellant.
Charles W. Scarborough (argued), Stephanie R. Marcus, and Marleigh D. Dover; Karen L. Loeffler, United States Attorney; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, Department of Justice, Washington, D.C.; for Defendant–Appellee.
Ninth Cir. 9/6/16 decision by Fisher, Paez and Hurwitz concurring; ___ F.3d ___, 2016 WL 4608149, 16 Cal. Daily Op. Serv. 9817.
MOHAMED v. UBER TECHNOLOGIES, INC.
“Plaintiff-Appellees Abdul Mohamed and Ronald Gillette, former Uber drivers, filed an action in district court alleging on behalf of themselves and a proposed class of other drivers that Defendants Uber Technologies, Inc., Rasier, LLC, and Hirease, LLC, violated the Fair Credit Reporting Act (FCRA) and various state statutes. Gillette has also brought a representative claim against Uber under California’s Private Attorneys General Act of 2004 (PAGA) alleging that he was misclassified as an independent contractor rather than an employee. The district court denied Uber’s motion to compel arbitration of the claims. Mohamed v. Uber Technologies, 109 F.Supp.3d 1185 (N.D. Cal. 2015). Uber argues on appeal (1) that the district court erroneously considered whether the arbitration provisions were enforceable when that question was clearly delegated to an arbitrator, and (2) that even if the district court properly considered arbitrability, it erred in concluding that the arbitration provisions were invalid and in declining to compel arbitration.
We conclude that the district court erred at the first step and improperly assumed the authority to decide whether the arbitration agreements were enforceable. The question of arbitrability as to all but Gillette’s PAGA claims was delegated to the arbitrator. Under the terms of the agreement Gillette signed, the PAGA waiver should be severed from the arbitration agreement and Gillette’s PAGA claims may proceed in court on a representative basis. All of Plaintiffs’ remaining arguments, including both Mohamed’s challenge to the PAGA waiver in the agreement he signed and the challenge by both Plaintiffs to the validity of the arbitration agreement itself, are subject to resolution via arbitration.”
Theodore Boutrous, Jr. (argued) and Theane D. Evangelis, Gibson, Dunn & Crutcher LLP, Los Angeles, California; Joshua S. Lipshutz and Kevin J. Ring-Dowell, Gibson, Dunn & Crutcher LLP, San Francisco, California; Rod M. Fliegel, Littler Mendelson P.C., San Francisco, California; Andrew M. Spurchise, Littler Mendelson P.C., New York, New York; for Defendants-Appellants Uber Technologies, Inc. and Rasier, LLC.
Pamela Devata (argued) and Nicholas R. Clements, Seyfarth Shaw LLP, San Francisco, California; Timothy L. Hix, Seyfarth Shaw LLP, Los Angeles, California; for Defendant-Appellant Hirease, LLC.
Laura Ho (argued), Andrew P. Lee, and William JhaveriWeeks, Goldstein Borgen Dardarian & Ho, Oakland, California; Robert Ahdoot, Tina Wolfson, and Theodore Maya, Ahdoot & Wolfson, PC, West Hollywood, California; Meredith Desautels and Dana Isaac Quinn, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, San Francisco, California; Monique Olivier, Duckworth Peters Lebowitz Olivier LLP, San Francisco, California; for Plaintiffs-Appellees.
Ninth Cir. 8/7/16 decision by Clifton, Tallman and Ikuta concurring; ___ F.3d ___, 2016 WL 4651409, 16 Cal. Daily Op. Serv. 9892, 2016 Daily Journal D.A.R. 9314.
OREGON RESTAURANT AND LODGING ASSN. v. PEREZ
“Judges Pregerson and Owens have voted to deny the petition for panel rehearing. Judge Owens has voted to deny the petition for rehearing en banc, and Judge Pregerson has so recommended. Judge N.R. Smith has voted to grant the petition for panel rehearing and petition for rehearing en banc.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehearing en banc are DENIED.
The order filed on April 1, 2016 denying rehearing in Cesarz v. Wynn Las Vegas is hereby amended to reflect this subsequent en banc activity, including the dissent from denial of rehearing.”
John S. Koppel (argued) and Michael Jay Singer, Attorneys, United States Department of Justice, Civil Division, Washington, D.C.; Stuart F. Delery, Assistant Attorney General, Office of the Attorney General, Washington, D.C.; S. Amanda Marshall, United States Attorney, United States Attorneys’ Office, Oregon, for Defendants–Appellants Thomas Perez, et al.
Joshua D. Buck (argued), Thierman Buck, Reno, Nevada; Leon Greenberg and Dana Sniegocki, Leon Greenberg Professional Corporation, Las Vegas, Nevada, for Plaintiffs–Appellants Joseph Cesarz and Quy Ngoc Tang.
Paul DeCamp (argued), Jackson Lewis P.C., Reston, Virginia; Nicholas M. Beerman, Peter H. Nohle, and William Robert Donovan, Jr., Jackson Lewis P.C., Seattle, Washington; Scott Oberg Oborn, Jackson Lewis P.C., Portland, Oregon, for Plaintiffs–Appellees Oregon Restaurant and Lodging Association, et al.
Eugene Scalia (argued) and Alexander Cox, Gibson Dunn & Crutcher LLP, Washington, D.C.; Gregory J. Kamer and Brian J. Cohen, Kamer Zucker Abbott, Las Vegas, Nevada, for Defendants–Appellees Wynn Las Vegas, LLC, et al.
Ninth Cir. 9/6/16 Order by Pregerson, Owens, and Smith, O’Scannlain dissenting; ___ F.3d ___, 2016 WL 4608148 (Mem), 16 Cal. Daily Op. Serv. 9829.
PAULUK v. SAVAGE
“This appeal stems from the death of Daniel Pauluk, an employee of the Clark County Health District (“CCHD”) in Nevada. Pauluk’s widow and daughters sued the CCHD and two of its employees, Edward Wojcik and Glenn Savage, alleging that their exposure of Pauluk to a workplace environment infested with toxic mold caused his death, in violation of the Due Process Clause of the Fourteenth Amendment. The district court denied summary judgment to Wojcik and Savage (collectively, “individual Defendants”). They bring an interlocutory appeal, contending that they are entitled to qualified immunity.
This case lies at the intersection of two lines of authority—on the one hand, the state-created danger doctrine under which constitutional due process claims may be brought; on the other, the Supreme Court’s decision in Collins v. City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), declining to find a general due process right to a safe workplace. We hold that Collins does not bar Plaintiffs’ due process claim. Plaintiffs have stated a claim under the state-created danger doctrine, notwithstanding the fact that the danger at issue is a physical condition in the workplace. However, we reverse the district court’s denial of summary judgment as to Wojcik and Savage, on the ground that the due process right asserted by Plaintiffs was not clearly established at the time of the violation.”
Peter M. Angulo (argued) and Walter R. Cannon, Olson, Cannon, Gormley, Angulo & Stoberski, Las Vegas, Nevada, for Defendants–Appellants.
John J. Tofano (argued), Las Vegas, Nevada, for Plaintiffs–Appellees.
Ninth Cir. 8/8/16 decision by Fletcher, Murguia concurring in part and dissenting in part, Noonan dissenting; ___ F.3d ___, 2016 WL 4698287