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McIntyre’s Civil Alert. Organized Succinct Summaries.

CALIFORNIA SUPREME COURT
Arbitration (Employment)
Baltazar v. Forever 21, Inc. (2016) _ Cal.4th _ , 2016 WL 1176599: The California Supreme Court affirmed the Court of Appeal’s ruling reversing the trial court’s order denying a motion to compel arbitration on the basis that the arbitration agreement was both procedurally and substantively unconscionable. The arbitration agreement was procedurally unconscionable because it was written on a preprinted form and offered on a take-it-or-leaveit basis, making it a contract of adhesion. But the ability of the parties to seek preliminary injunctive relief in the superior court, as is authorized by California Code of Civil Procedure section 1281.8(b), did not render the arbitration agreement substantively unconscionable. (March 28, 2016.)

Employment
Baltazar v. Forever 21, Inc. (2016) _ Cal.4th _ , 2016 WL 1176599: See summary above under Arbitration.
Kilby v. CVS Pharmacy, Inc. (2016) _ Cal.4th _ , 2016 WL 1296101: The California Supreme Court answered questions certified by the Ninth Circuit Court of Appeals regarding California wage order requirements that an employer provide suitable seating for employees under certain circumstances. The wage orders at issue state that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” (California Code of Regulations, title 8, sections 11040, subdivision 14(A) (Wage Order No. 4-2001), 11070, subdivision 14(A) (Wage Order No. 7-2001).) The California Supreme Court answers were as follows: (1) The “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for. (2) Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the work, not an individual employee’s characteristics. (3) The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability. (April 4, 2016.)

CALIFORNIA COURTS OF APPEAL
Arbitration (Attorney Fees, Employment)
Ling v. P.F. Chang’s China Bistro, Inc. (2016) _ Cal.App.4th _ , 2016 WL 1169307: The Court of Appeal affirmed the trial court’s order correcting and remanding an arbitrator’s attorney’s fees award under the California Arbitration Act (Code of Civil Procedure section 1280 et seq.), The arbitrator exceeded his power by awarding statutory attorney’s fees to a defendant employer for work performed in defeating an employee’s inextricably intertwined claims, contrary to public policy embedded in Labor Code section 1194’s one-way fee shifting provision. The trial court’s remedy—correcting the award and remanding to the arbitrator to determine plaintiff’s reasonable attorney fees and costs as the prevailing party—was proper. However, the Court of Appeal vacated the trial court’s award of attorney fees to plaintiff for her petition to vacate the arbitrator’s first award because that fee award was not authorized by either a statute or the arbitration agreement. (C.A. 6th, March 25, 2016.)

Civil Procedure (Anti-SLAPP, Collateral Estoppel, Demurrer, Motion to Strike)
Baughn v. Department of Forestry and Fire Protection (2016) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s order denying an anti-SLAPP motion to strike because defendant California Department of Forestry and Fire Protection failed to demonstrate that plaintiffs’ action arose from conduct taken by defendant in furtherance of its right of speech in connection with a public issue or an issue of public interest. (C.A. 3rd, March 11, 2016.)
Staniforth v. The Judges’ Retirement System (Chiang) (2016) _ Cal.App.4th _ , 2016 WL 1224501: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend because the statute of limitations had expired. The action involved a subgroup of 10 retired jurists alleged by petition to have been underpaid, the last underpayment occurred in early 1987, and every potential member or beneficiary allegedly underpaid the benefits by JRS was deceased by January 1, 2005. The action, pleading a common count for “money owed” to the heirs of those deceased jurists, was not filed until 2012. The Court of Appeal found it was unnecessary to definitively divine the theory of liability to identify the applicable statute of limitations because it was satisfied that, under any and all of the possible theories underlying petitioners’ common counts, all claims by the heirs based on underpaid pension payments accrued at least seven years (if not decades) before the present action was filed, and the longest of the possible statute of limitations periods on the claims would have expired well before petitioners commenced the present action. (C.A. 4th, filed March 14, 2016, published March 29, 2016.)

Construction
City of El Centro v. Lanier (State Building and Construction Trades Council of California, AFL-CIO) (2016) _ Cal.App.4th _ , 2016 WL 1221948: The Court of Appeal affirmed the trial court’s order denying a writ petition seeking to prevent enforcement of Labor Code section 1782, which prohibits a charter city from receiving or using state funding or financial assistance for a public construction project if the city has a charter provision or ordinance that authorizes a contractor to not comply with the state prevailing wage laws. The Court of Appeal affirmed the trial court’s judgment upholding the constitutionality of section 1782 against a “home rule” challenge under Article XI, section 5(a) and Article XIII, section 24(b) of the California Constitution that was brought by several charter cities. (C.A. 4th, March 29, 2016.)

Employment and Labor
Castro-Ramirez v. Dependable Highway Express, Inc. (2016) _ Cal. App.4th _ , 2016 WL 1298637: The Court of Appeal reversed the trial court’s summary judgment for defendant in an action alleging disability discrimination, failure to prevent discrimination, and retaliation under the Fair Employment and Housing Act (FEHA) (Government Code, § 12900 et seq.), as well as wrongful termination in violation of public policy. The Court of Appeal found that a California employer may be liable under FEHA for failing to accommodate a nondisabled employee’s request to modify his work schedule to permit him to care for a disabled family member. (C.A. 2nd, April 4, 2016.) City of El Centro v. Lanier (State Building and Construction Trades Council of California, AFL-CIO) (2016) _ Cal.App.4th _ , 2016 WL 1221948: See summary above under Construction. Davis v. Farmers Insurance Exchange (2016) _ Cal.App.4th _ , 2016 WL 1182718: The Court of Appeal affirmed in part and reversed in part decisions by the trial court in a case alleging wrongful termination in violation of public policy and failure to pay wages. The Court of Appeal affirmed the trial court giving to the jury CACI instructions amended to reflect the holding in Harris v. City of Santa Monica (2013) 56 Cal.4th 203. The Court of Appeal affirmed the trial court’s denial of plaintiff’s post-trial request for declaratory and/or injunctive relief after the jury awarded plaintiff no damages for wrongful termination. While the jury found that plaintiff’s age was a substantial motivating factor in his termination, it concluded that defendant would have made the same termination decision for legitimate reasons. However, the Court of Appeal reversed the trial court’s directed verdict for defendant on the wage claim, finding that plaintiff had presented sufficient evidence to allow the wage claim to go to the jury. (C.A. 2nd, March 28, 2016.)

Evidence
Kirchmeyer v. Phillips (2016) _ Cal.App.4th _ , 2016 WL 1183324: The Court of Appeal affirmed the trial court’s denial of a petition by the Executive Director (Director) of the Medical Board of California to compel production of a patient’s medical records from a psychiatrist under an investigatory subpoena duces tecum. The psychiatrist was being investigated regarding an alleged improper sexual relationship with the patient. Both the psychiatrist and the patient objected to production of the records. The Court of Appeal ruled that the medical records sought by the subpoena were protected by the psychotherapist patient privilege in Evidence Code section 1014. Because the psychotherapist patient privilege is grounded in the patient’s constitutional right of privacy, the Director had to show a compelling interest justifying production of the medical records, and failed to do so. The Director also failed to establish any exception to the privilege. (C.A. 4th, March 28, 2016.)

Real Property (CEQA)
Union of Medical Marijuana Patients, Inc. v. City of Upland (2016) _ Cal.App.4th _ , 2016 WL 1169302: The Court of Appeal affirmed the trial court’s denial of a writ petition seeking to set aside, under the California Environmental Quality Act (CEQA) (Public Resources Code, section 21000 et seq.), an ordinance prohibiting mobile medical marijuana dispensaries in the City of Upland. The Court of Appeal concluded that the ordinance was not a project under CEQA. (C.A. 4th, March 25, 2016.)

Torts (Elder Abuse, Government Immunity)
Fenimore v. Regents of the University of California (2016) _ Cal.App.4th _ , 2016 WL 1191530: The Court of Appeal affirmed in part and reversed in part the rulings of the trial court on a demurrer and motion to strike in a case alleging elder abuse, negligence, negligent hiring and supervision, and wrongful death. The issues on appeal only related to elder abuse. The Court of Appeal reversed the order sustaining the demurrer to the elder abuse cause of action. Allegations that the defendant knew of staffing regulations, violated them by being understaffed, and had a significant pattern of doing so could allow a jury to find that the defendant was reckless. The order granting a motion to strike the claim of general damages was reversed to the extent it held that general damages are not recoverable for elder abuse. (C.A. 2nd, filed March 9, 2016, published March 28, 2016.)

Monty A. Mcintyre

Monty A. McIntyre follows his passions for the law and serving others by serving as a mediator, arbitrator and motion referee to help individuals, businesses and lawyers obtain rapid, reasonable resolution of disputes. He is also the Publisher of McIntyre’s California Civil Law Update and can be reached at 619-990-4312 or monty.mcintyre@gmail.com.

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About the Author: Monty A. McIntyre follows his passions for the law and serving others by serving as a mediator, arbitrator and motion referee to help individuals, businesses and lawyers obtain rapid, reasonable resolution of disputes. He is also the Publisher of McIntyre’s California Civil Law Update and can be reached at 619-990-4312 or monty.mcintyre@gmail.com.

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