Cases Pending Before the California Supreme Court

• Citation: Vol. 33 No. 4
• Publication year: 2019
• Author: By Phyllis W. Cheng

Cases Pending Before the California Supreme Court

By Phyllis W. Cheng

Phyllis W. Cheng is a mediator at ADR Services, Inc., 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."

Arbitration

OTO, L.L.C. v. Kho, 14 Cal. App. 5th 691 (2017), review granted, 225 Cal. Rptr. 3d 796 (2017); S244630/A147564

Petition for review after reversal of order denying petition to compel arbitration. (1) Was the arbitration remedy at issue in this case sufficiently "affordable and accessible" within the meaning of Sonic-Calabasas A, Inc. v. Moreno, 57 Cal. 4th 1109 (2013) to require the company's employees to forego the right to an administrative Berman hearing on wage claims? (2) Did the employer waive its right to bypass the Berman hearing by waiting until the morning of that hearing, serving a demand for arbitration, and refusing to participate in the hearing? Fully briefed.

Discrimination / Harassment / Retaliation

Wilson v. Cable News Network, Inc., 6 Cal. App. 5th 822 (2016), review granted, 214 Cal. Rptr. 3d 290 (2017); S239686/B264944

Petition for review after reversal of order granting special motion to strike. In deciding whether an employee's claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of a special motion to strike (Civil Procedure Code § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive? Submitted/ opinion due.

Bonni v. St. Joseph Health Sys., 13 Cal. App. 5th 851 (2017), review granted, 224 Cal. Rptr. 3d 684 (2017); S244148/G052367

Petition for review after reversal granting anti-SLAPP motion. Further action in this matter deferred pending consideration and disposition of a related issue in Wilson v. Cable News Network, Inc. S239686 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to Cal. Rules of Court, rule 8.520, is deferred pending further order of the court. Holding for lead case.

Public Works

Busker v. Wabtec Corp., 903 F.3d 881 (9th Cir. 2018); S251135/9th Cir. No. 17-55165

Request under Cal. Rules of Court, rule 8.548, that the supreme court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. Does work installing electrical equipment on locomotives and rail cars (i.e., the "on-board work" for Metrolink's [Positive Train Control (PTC)] project) fall within the definition of "public works" under Labor Code § 1720(a)(1), either (1) as constituting "construction" or "installation" under the statute, or (2) as being integral to other work performed for the PTC project on the wayside (i.e., the "field installation work")? Reply brief due.

Mendoza v. Fonseca McElroy Grinding Co., 913 F.3d 911 (9th Cir. 2019); S253574/9th Cir. No. 17-15221

Request under Cal. Rules of Court, rule 8.548, that the supreme court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. Is operating engineers' offsite "mobilization work"—including the transportation to and from a public works site of roadwork grinding equipment—performed "in the execution of [a] contract for public work," (Labor Code § 1772), such that it entitles workers to "not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed" pursuant to Labor Code § 1771? Review granted/brief due.

Retirement / Pensions

Alameda Cnty. Deputy Sheriff's Ass'n v. Alameda Cnty. Employees' Retirement Ass'n, 227 Cal. Rptr. 3d 787 (2018), review granted, 230 Cal. Rptr. 3d 681 (2018); S247095/A141913 Petition for review after affirmance in part and reversal in part of judgment. Did statutory amendments to the County Employees' Retirement Law (Government Code §§ 31450 et seq.) made by the Public Employees' Pension Reform Act of 2013 (Government Code §§ 7522 et seq.) reduce the scope of the pre-existing definition of pensionable compensation and thereby impair employees' vested rights protected by the contracts clauses of the state and federal Constitutions? Fully briefed.

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Hipsher v. Los Angeles Cnty. Employees, 24 Cal. App. 5th 740 (2018), review granted, 237 Cal. Rptr. 3d 791 (2018 ); S250244/B276486 & B276486M

Petition for review after affirmance and modification of grant of peremptory writ of mandate. Further action deferred pending consideration and disposition of a related issue in Alameda Cnty. Deputy Sheriffs' Ass'n v. Alameda Cnty. Employees' Retirement Ass'n, S247095 (see Cal. Rules of Court, rule 8.512(d) (2)), or pending further order of the court. Holding for lead case.

Marin Ass'n of Public Employees v. Marin Cnty....