JJ's SUMMARY OF RECENT

EMPLOYMENT DECISIONS - October 2024



Wentworth v. UC Regents

(First Dist., Div. Four 9/30/24)

Wentworth, formerly a professor at the University of California, Berkeley, appealed from trial court orders granting defendant Regents of the University of California summary adjudication of three causes of action under the Fair Employment and Housing Act and Information Practices Act (Civ. Code, § 1798 et seq.) (IPA), denying Wentworth’s motion to compel responses to certain discovery requests, and denying Wentworth’s request for a retrial of one cause of action for which the jury left the verdict form blank. In a separate consolidated appeal, Wentworth attacked a postjudgment order denying his requests for attorney’s fees and costs. The court of appeal determined that Wentworth failed to demonstrate any prejudicial error as to his claims for failure to engage in the interactive process or provide reasonable accommodations, so it affirmed the summary adjudication order as to those claims. The court also find no error in the trial court’s orders denying Wentworth’s motion to compel responses to discovery requests and motion for retrial. It did, however, reverse the trial court order granting summary adjudication of the invasion of privacy cause of action, because Wentworth’s evidence raised a triable issue of material fact about whether Regents violated the IPA by leaking to the media a letter about student complaints against him and disclosing information about his disability accommodation at a faculty and student meeting. Because of its reversal of summary adjudication of the invasion of privacy cause of action, the court of appeal also reversed the rulings on the request for attorney’s fees and costs and remanded for further proceedings.

Doe v. Second Street Corp.

(Second Dist., Div. Three 9/30/24)

In 2022, Congress amended the Federal Arbitration Act by passing the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). In general terms, the EFAA renders arbitration agreements unenforceable at the plaintiff’s election in sexual assault and sexual harassment cases that arise or accrue on or after March 3, 2022, the EFAA’s effective date. Jane Doe brought claims against her employer, Second Street Corporation dba The Huntley Hotel, and two of its supervisors, alleging a pattern of sexual harassment and discrimination occurring both before and after the EFAA’s effective date, as well as a variety of wage-and-hour violations. Defendants moved to compel arbitration, citing an arbitration provision in the hotel’s employee handbook. The trial court denied the motion to compel, concluding that the EFAA rendered the arbitration provision unenforceable as to all of plaintiff’s claims. The trial court also granted plaintiff leave to file a first amended complaint adding additional claims, including a claim for constructive wrongful termination. The court of appeal affirmed the trial court’s order in its entirety, concluding that the trial court properly found that under the EFAA’s plain language, (1) plaintiff’s sexual harassment claims alleging continuing violations both before and after the EFAA’s effective date were exempt from mandatory arbitration, and (2) plaintiff’s other causes of action were also exempt from mandatory arbitration under the EFAA because they were part of the same “case.” The court further concluded that the trial court did not abuse its discretion by permitting plaintiff to file a first amended complaint.

Osborne v. Pleasanton Automotive Co.

(First Dist., Div. Two 10/3124)

Osborne sued Pleasanton Automotive Company, LOP Automotive Company LP, HAG Automotive Investments LP (collectively, HAG), and its Executive General Manager and Market Area Vice President, Bob Slap. The suit asserted eight causes of action for discrimination, retaliation, harassment, failure to prevent harassment and retaliation and wage and hour violations arising from alleged workplace misconduct by Slap during four years when Osborne was working as Slap’s executive assistant. Two-plus years into the litigation, Slap filed a cross-complaint against Osborne, alleging statements in a letter she submitted to HAG’s human resources director three months before she filed suit constituted libel, slander, intentional infliction of emotional distress, intentional interference with contractual relations and negligence. In response, Osborne filed an anti-SLAPP motion contending Slap’s claims against her arose out of protected activity she undertook in anticipation of litigation. She further asserted Slap could not show he would likely prevail on the merits because, among other reasons, her statements were absolutely privileged by Civil Code section 47, subdivision (2). The trial court granted Osbourne's motion, concluding her statements were protected activity under the anti-SLAPP statute, and rejecting Slap’s arguments that they were extortionate and illegal as a matter of law. The trial court further held Slap could not establish minimal merit in his claims, as required to withstand an anti-SLAPP challenge, because Osborne’s statements were both absolutely and conditionally privileged under Civil Code section 47, and Slap failed to overcome the conditional privilege with a showing of malice. The court of appeal affirmed.

Liu v. Miniso Depot CA, Inc.

(Second Dist., Div. One 10/7/24)

As discussed above in the Doe v. Second Street Corp. summary, Congress amended the Federal Arbitration Act by passing the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). In general terms, the EFAA renders arbitration agreements unenforceable at the plaintiff’s election in sexual assault and sexual harassment cases.  In this case, the court of appeal was asked to decide an issue addressed in Doe, i.e. does the EFAA exempt from arbitration all causes of action in a complaint that asserts both sexual harassment and non-sexual harassment claims? Citing their alignment with the decision in Doe, the court concluded that the plain language of the EFAA exempts a plaintiff’s entire case from arbitration where the plaintiff asserts at least one sexual harassment claim subject to the act. Because at least at least one of the claims in this case was subject to the EFAA, it determined that the trial court had not erred in refusing to compel plaintiff to arbitrate any of her claims.

Bath v. State of California

(First Dist., Div. Two 10/23/24)

Plaintiffs were employees of the State of California who provided dental care to inmates in the state prison system; their employment was governed by an MOU. Plaintiffs sued the state and related defendants seeking compensation for time they spent on “pre- and post-shift safety and security activities,” such as going through security and picking up and returning alarm devices.

Defendants filed a demurrer, which the trial court sustained without leave to amend, on the ground these activities were not compensable under the Portal-to-Portal Act of the Fair Labor Standards Act. Plaintiff's appealed, contending they had alleged viable wage claims, and the trial court improperly decided a disputed question of fact in ruling on the demurrer. Defendants responded that the trial court did not err, and, in any event, the judgment could be affirmed on alternative grounds they raised in their demurrer. More specifically, they argued the MOU governing the terms and conditions of plaintiffs’ employment precluded their claims; plaintiffs’ statutory claims failed because the statutes at issue did not apply to government employers; the claims were all subject to dismissal because plaintiffs failed to exhaust their contractual remedies (grievance and arbitration procedures in the MOU); and the claims were all barred by the applicable statute of limitations.

The court of appeal concluded defendants’ demurrer was well taken as to plaintiffs’ statutory claims, but that plaintiffs had stated a claim for breach of contract. It further concluded that defendants’ affirmative defense of failure to exhaust contractual remedies could not be resolved in a demurrer and plaintiffs’ contract claim was not time barred. Accordingly, it affirmed in part and reversed in part.