Cases Pending Before the California Supreme Court

by

Cases Pending Before the California Supreme Court

By Phyllis W. Cheng

Phyllis W. Cheng is a private mediator in Los Angeles (www.Mediate.Work), and is on the mediation panels for the California Court of Appeal, Second Appellate District, and U.S. District Court, Central District of California. She prepares the Labor & Employment Case Law Alert, a free electronic alert service on new cases for Section members. To subscribe online at http://www.calbar.ca.gov, log onto "My State Bar Profile" and follow the instructions under "Change My E-mail Addresses and List Subscriptions."

AGRICULTURAL LABOR RELATIONS ACT

Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., 236 Cal. App. 4th 1024 (2015), review granted, 191 Cal. Rptr. 3d 497 (2015); S227243/F068526/F068676

Petitions for review after reversal of Agricultural Labor Relations Board decision and denial of petition for peremptory writ of mandate. (1) Does the statutory "Mandatory Mediation and Conciliation" process (Cal. Labor Code sections 1164-1164.13) violate the equal protection clauses of the state and federal Constitutions? (2) Do the "Mandatory Mediation and Conciliation" statutes effect an unconstitutional delegation of legislative power? (3) May an employer oppose a certified union’s request for referral to the "Mandatory Mediation and Conciliation" process by asserting that the union has "abandoned" the bargaining unit? Fully briefed.

Tri-Fanucchi Farms v. Agricultural Labor Relations Bd., 236 Cal. App. 4th 1079 (2015), review granted, 191 Cal. Rptr. 3d 497 (2015); S227270/F069419

Petition for review after affirmance in part and reversal in part of a decision of the Agricultural Labor Relations Board. (1) May an employer assert as a defense to a request for collective bargaining under the Agricultural Labor Relations Act (Cal. Labor Code sections 1140-1166.3) that the certified union has "abandoned" the bargaining unit? (2) Did the Board err in granting "make whole" relief (Cal. Labor Code section 1160.3) as a remedy for the employer’s refusal to bargain with the union? Fully briefed.

ARBITRATION/PREEMPTION

McGill v. Citibank, N.A., 232 Cal. App. 4th 753 (2014), review granted, 185 Cal. Rptr. 3d 430 (2015); S224086/G049838

Petition for review after reversal of order denying petition to compel arbitration. Does the Federal Arbitration Act (9 U.S.C. sections 1-16), as interpreted in AT&T Mobility LLC v. Concepcion, 563 U.S. 321 (2011), preempt the California rule, see Broughton v. Cigna Healthplans, 21 Cal. 4th 1066 (1999); Cruz v. PacifiCare Health Sys., Inc., 30 Cal. 4th 303 (2003), that statutory claims for public injunctive relief are not subject to compulsory private arbitration? Fully briefed.

Universal Protection Serv. v. Superior Court, 234 Cal. App. 4th 1128 (2015), review granted, 188 Cal. Rptr. 3d 371 (2015); S225450/D066919

Petition for review after affirmance of an order granting a petition to compel arbitration in a civil action. Briefing deferred pending decision in Sandquist v. Lebo Automotive (decided July 28, 2016; S220812, 2016 Cal. LEXIS 6246). Holding for lead case.

CONSUMER CREDIT REPORTING AGENCIES ACT

Connor v. First Student, Inc., 239 Cal. App. 4th 526 (2015), review granted, 195 Cal. Rptr. 3d 1 (2015); S229428/B256075

Petition for review after reversal of judgment. Is the Investigative Consumer Reporting Agencies Act (Cal. Civil Code sections 1786-1786.60) unconstitutionally vague as applied to background checks conducted on a company’s employees, because persons and entities subject to both that Act and the Consumer Credit Reporting Agencies Act (Cal. Civ. Code sections 1785.1-1785.36) cannot determine which statute applies? Fully briefed.

DISCIPLINARY ACTION

Dhillon v. John Muir Health, unpublished opinion, review granted, 2015 Cal. LEXIS 1946 (2015); S224472/A143195

Petition for review after dismissal of appeal from an order on a petition for writ of administrative mandate. Is a trial court order granting in part and denying in part a physician’s petition for writ of administrative mandate regarding a hospital’s disciplinary action and remanding the matter to the hospital for further administrative proceedings an appealable order? Fully briefed.

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PRIVATE ATTORNEYS GENERAL ACT

Williams v. Superior Court, 236 Cal. App. 4th 1151, review granted, 191 Cal. Rptr. 3d 497 (2015); S227228/B259967

Petition for review after denial of a petition for a peremptory writ of mandate. (1) Is the plaintiff in a representative action under the Private Attorneys General Act of 2004 (Cal. Labor Code sections 2698-2699.5) entitled to discovery of the names and contact information of other "aggrieved employees" at the beginning of the proceeding, or is the plaintiff first required to show good cause in order to have access to such information? (2) In ruling on such a request for employee contact information, should the trial court first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or is a protectable privacy interest assumed? See Hill v. National Collegiate Athletic Ass’n, 7 Cal. 4th 1 (1994); Pioneer Elec. (USA), Inc. v. Superior Court, 40 Cal. 4th 360 (2007). Fully briefed.

PUBLIC WORKS/PREVAILING WAGE

Roy Allen Slurry Seal, Inc. v. American Asphalt South, Inc., 234 Cal. App. 4th 748 (2015), review granted, 188 Cal. Rptr. 3d 371 (2015); S225398/B255558

Petition for review after reversal of judgment. (1) In the context of competitive bidding on a public works contract, may the second lowest bidder state a claim for intentional interference with prospective economic advantage against the winning bidder based on an allegation that the winning bidder did not fully comply with California’s prevailing wage law after the contract was awarded? (2) To state a cause of action for intentional interference with prospective economic advantage, must the plaintiff allege that it had a preexisting economic relationship with a third party with probable future benefit that preceded or existed separately from defendant’s interference, or is it sufficient for the plaintiff to allege that its economic expectancy arose at the time the public agency awarded the contract to the low bidder? Fully briefed.

RETIREMENT

Flethez v. San Bernardino Cnty. Employees Retirement Ass’n, 236 Cal. App. 4th 65 (2015), review granted, 189 Cal. Rptr. 3d 823 (2015); S226779/D066959

Petition for review after reversal of judgment in action for writ of administrative mandate. If a retroactive award of service-connected disability retirement benefits is made in an administrative mandate proceeding, is prejudgment interest under Cal. Civil Procedure Code section 3287 calculated from the day after the employee’s last day of regular compensation, or the day on which the employee submitted the claim for the benefits? Fully briefed.

TRADE SECRETS

Parrish v. Latham & Watkins, 238 Cal. App. 4th 81 (2015), review granted, 193 Cal. Rptr. 3d 538 (2015); S228277/B244841B

Petition for review after affirmance of an order granting a special motion to strike. (1) Does the denial of former employees’ motion for summary judgment in an action for misappropriation of trade secrets conclusively establish that their former employer had probable cause to bring the action, and thus preclude the employees’ subsequent action for malicious prosecution, even if the trial court in the prior action later found that it had been brought in bad faith? (2) Is the former employees’ malicious prosecution action against the employer’s former attorneys barred by the one-year statute of limitations in Cal. Civil Procedure Code section 304.6? Fully briefed.

WAGE AND HOUR

Alvarado v. Dart Container Corp. of California, 243 Cal. App. 4th 1200 (2016), review granted, 201 Cal. Rptr. 3d 884 (2016); S232607/E061645

Petition for review after affirmance of judgment. What is the proper method for calculating the rate of overtime pay when an employee receives both an hourly wage and a flat sum bonus? Opening brief due.

Augustus v. ABM Security Servs., Inc., 233 Cal. App. 4th 1065 (2014), review granted, 186 Cal. Rptr. 3d 359 (2015); S224853/B243788

Petition for review after reversal of judgment. (1) Do Labor Code section 226.7 and Industrial Welfare Commission Wage Order No. 4-2001 require that employees be relieved of all duties during rest breaks? (2) Are security guards who remain on call during rest breaks performing work during that time under the analysis of Mendiola v. CPS Security Solutions, Inc., 60 Cal. 4th 833 (2015)? Fully briefed.

Dynamex Operations West, Inc. v. Superior Court, 230 Cal. App. 4th 718 (2014), review granted, 182 Cal. Rptr. 3d 644 (2015); S222732/B249546

Petition for review after grant in part and denial in part a petition for peremptory writ of mandate. In a wage and hour class action involving claims that the plaintiffs were misclassified as independent contractors, may a class be certified based on the Industrial Welfare Commission definition of "employee," as construed in Martinez v. Combs, 49 Cal. 4th 35 (2010), or should the common law test for distinguishing between employees and independent contractors discussed in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989) control? Fully briefed.

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Gerard v. Orange Coast Mem’l Med. Ctr., 234 Cal. App. 4th 285, review granted, 187 Cal. Rptr. 3d 668 (2015); S225205/G048039

Petition for review after reversal of judgment. (1) Is the health care industry meal period waiver provision in section 11(D) of Industrial Welfare Commission Wage Order No. 5-2001 invalid under Cal. Labor Code section 512(a)? (2) Should the decision of the court of appeal partially invalidating the Wage Order be applied retroactively? Fully briefed.

Mendoza v. Nordstrom, 778 F. 3d 834 (9th Cir. 2015); S224611/9th Cir. 12-57130

Request under California Rules of Court, rule 8.548, that the California Supreme Court decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. (1) California Labor Code section 551 provides that "[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven." Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven-day period? (2) California Labor Code section 556 exempts employers from providing such a day of rest "when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof." (Emphasis added.) Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week? (3) California Labor Code section 552 provides that an employer may not "cause his employees to work more than six days in seven." What does it mean for an employer to "cause" an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else? Fully briefed.

WORKPLACE SAFETY

Solus Industrial Innovations, LLC v. Superior Court, 229 Cal. App. 4th 1291 (2014), review granted, 182 Cal. Rptr. 3d 152 (2015); S222314/G047661

Petition for review after grant of a petition for writ of peremptory mandate. Does federal law preempt a district attorney’s attempt to recover civil penalties under California’s unfair competition law, based on an employer’s violation of workplace safety standards that resulted in the deaths of two employees? Fully briefed.

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