MOU Between County and Deputy Sheriffs' Association Gave County Unrestricted Authority to Reassign Deputies

The Fifth Appellate District held that an arbitrator's decision in favor of two county employees contradicted the express terms of the memorandum of understanding (MOU) between the county and the employees' association.

Two sheriff's deputies, through their employee organization, filed a grievance challenging their involuntary reassignment from their specialty assignments to patrol assignments.  They asserted the reassignments violated both the MOU between the County of Fresno and the Fresno Deputy Sheriff's Association, and an established past practice that deputies would not be involuntarily reassigned in the absence of disciplinary issues, documented performance issues, layoffs, or pending disability retirement.  The administrative hearing of the grievance resulted in a decision in favor of the deputies.

The trial court granted the county's petition for writ of mandate to reverse the decision, finding the arbitrator's findings were not supported by substantial evidence.

The court of appeal affirmed, holding that the arbitrator abused his discretion in issuing a decision in favor of the deputies.  First, the management rights accorded the county under the MOU expressly granted the county the right to assign and reassign deputies, without limiting the reassignment right to cases of discipline, poor performance, or similar circumstances.  Consequently, the sheriff's department did not violate the MOU by reassigning the deputies involuntarily, even in the absence of disciplinary issues, documented performance issues, layoffs, or pending disability retirement.

Further, given the clear and unambiguous language of the MOU, there was no need to consider past practice. The parties were bound by their written agreement, regardless of whether or not the county had exercised its rights under the agreement previously.

County of Fresno v. Fresno Deputy Sheriff's Association

Triable Issues of Fact Preclude Summary Adjudication of Plaintiffs' Claim of Entitlement to Wages and Expenses for Commute Time

The Sixth Appellate District reversed a grant of summary adjudication and remanded. The court held that there were triable issues of fact as to whether plaintiffs' commute time was compensable as hours worked and whether their commute expenses were compensable as necessary business expenses that should be borne by their employer.

Konica Minolta Business Solutions U.S.A. provides business printing, copying, and scanning products and services. Service technicians employed by Konica maintain and repair copiers and other devices at the customer's site. Konica supplies the technicians with tools and parts, which the technicians transport in their personal vehicles to the customer work sites. The technicians generally travel directly from their homes to the work sites, and return directly home at the end of the day. Technicians Michael Oliver and Norris Cagonot filed a putative class action against Konica, seeking (1) unpaid wages for time spent by technicians commuting to and from home, and (2) reimbursement for mileage incurred during the morning and evening commutes.

The trial court granted Konica's motion for summary adjudication on both issues, finding that plaintiffs' commute time was not compensable as "hours worked" and that plaintiffs were not entitled to reimbursement for commute mileage.

The court of appeal reversed, holding that there were triable issues of fact as to both of plaintiffs' claims. First, if carrying tools and parts in a technician's personal vehicle during the commute was optional, then the technician was not subject to Konica's control during that time. Further, even if a service technician was required---either strictly speaking or as a practical matter---to carry tools and parts during the commute, the technician would not be subject to Konica's control during the commute if he or she was able to use that time effectively for the technician's own purposes. On the other hand, if a technician was required during the commute to carry a volume of tools and parts that did not allow his or her to use the commute time effectively for the technician's own purposes, then the technician would be deemed subject to Konica's control during that time for purposes of determining hours worked and entitlement to wages. The same  factors would decide whether the technicians were entitled to reimbursement for commute mileage. The court remanded with directions to deny Konica's motion for summary adjudication.

Oliver v. Konica Minolta Business Solutions U.S.A., Inc., June 2, 2020

Pet Rat not a Consumer Product

The Fourth Appellate District held that a live pet animal sold in its unaltered state is not a product subject to the design defect consumer expectations theory of strict products liability.

The grandmother of 10-year old Aidan bought him a pet rat. Unbeknownst to them, the rat was infected with streptobacillus moniliformis, a bacteria often carried by pet rates, including those bred for sale as pets. The bacteria was transmitted to Aidan, who developed rat bite fever. He died two weeks after bringing the rat home. Aidan's father, Andrew Pankey, sued Petco, where the rat was purchased, alleging negligence and strict products liability. The case was tried to a jury, which returned a verdict in favor of Petco on all claims, finding that Petco had adequately warned customers of the risk that the rats it sold might carry germs.
Penkey appealed, arguing the trial court erred in refusing to instruct the jury on the consumer expectations test.

The court of appeal affirmed, holding that Aidan's rat was not a "product" for purposes of the consumer expectations test. An animal sold in a diseased condition can be deemed a defective product. The streptobacillus moniliformis bacteria, however, although it is carried by rats and can cause disease in humans, does not cause disease in rats. An animal carrying the bacteria will have no symptoms of illness---it will have glossy fur, bright eyes, and look alert. It can thus not be deemed defective due to disease. Further, pet rats living in their natural state are not "designed." Thus, a pet rat living in its natural state is neither diseased nor designed. To hold a seller responsible under a theory of design defect would make the seller an absolute insurer of the rat's health, biological condition, and even behavior, even though those things are affected by factors beyond the scope of the seller's control. Because a pet rat is not a product for purposes of design defect liability, the consumer expectations test did not apply. Justice Dato dissented, finding no principled basis to distinguish pet rats from millions of other items of personal property placed into the stream of commerce by retailers like Petco. They are products, subject to being deemed "defective" if any of the accepted tests for establishing a product defect can be satisfied, including the consumer expectations test.

Pankey v. Petco, June 24, 2020

No Attorney Fees on Claims for Failure to Provide Rest Breaks and Meal Periods

The Second Appellate District reversed a judgment  and remanded. The court held that the Labor Code does not entitle a prevailing plaintiff to attorney fees on claims for failure to provide rest breaks or meal periods.

Raquel Betancourt sued former employers OS Restaurant Services, LLC and Bloomin' Brands, Inc. for retaliation, wrongful termination, and failure to provide rest breaks or meal periods. Betancourt also sought penalties, costs and attorney fees under Labor Code §226 for failing to include rest break premiums on her itemized wage statements, and waiting time penalties under §§201 through 203 for failure to pay all wages upon termination, "including…unpaid premium wages in lieu of rest periods." The prayer for relief specifically requested attorney fees under §§218.5 and 226. The parties settled, with defendants agreeing to pay Betancourt $15,375 in full settlement of all wage-related claims.

The trial court awarded Betancourt $280,794 in attorney fees under Labor Code §218.5.
The court of appeal reversed the award of fees, holding that Betancourt's claims for failure to provide rest breaks or meal periods were not claims "brought for the nonpayment of wages" within the meaning of §218.5. Section 218.5 mandates an attorney fee award "in any action brought for the nonpayment of wages," if requested at the initiation of the action. An action for failure to provide meal or rest breaks is not an action for nonpayment of wages. The remedy for failure to provide meal or rest breaks is an additional hour of pay---often described in the case law as "premium wages"---but that does not turn a lawsuit for violation of meal or rest breaks into a lawsuit for nonpayment of wages. Further, because actions for failure to provide meal or rest periods do not entitle employees to pursue derivative penalties under §203 for waiting time or under §226 for wage statement violations, Betancourt was also not entitled to recover attorney fees based on those claims.

Betancourt v. O. S. Restaurant Services; May 22, 2020

City Councilmember's Conduct Demonstrated Bias Warranting Recusal

The Third Appellate District affirmed a trial court order. The court held that a councilmember's advocacy against one of the parties to a pending hearing before the city council denied that party a fair hearing.

Petrovich Development Company, LLC applied for a conditional use permit to construct and operate a gas station in the shopping center zone of a 72-acre Sacramento mixed use residential development called Curtis Center Village. The city planning commission approved the application, over the opposition of Eric Johnson, president of a local neighborhood association. Johnson and others appealed the decision to the city council, arguing that emissions from the gas station would be detrimental to public health.

Councilmember Jay Schenirer, who represented the Curtis Park neighborhood, met with Johnson to give him a list of "talking points" he should address in communications with the other councilmembers prior to hearing on his appeal. Johnson sent identically worded emails to three councilmembers, paraphrasing the "talking points" provided him by Schenirer. Schenirer sent the same list of "talking points" to the mayor. One of the mayor's advisors sent the mayor an email suggested that Schenirer was "confident that he has the votes (if not a unanimous one) to deny the approval." At the subsequent hearing on Johnson's appeal, Schenirer spoke at length, vigorously opposing the proposed gas station. The city council, including the mayor, voted seven to two to deny the conditional use permit.

Petrovich filed a petition for writ of mandate challenging the vote, arguing that Schenirer had demonstrated an unacceptable probability of actual bias. The trial court granted the petition and ordered the city to rescind its decision and hold a new hearing. The court further directed Schenirer to recuse himself from that hearing.

The court of appeal affirmed, holding that the record supported the trial court's finding that, in the days preceding the hearing, Schenirer ceased acting as a neutral and unbiased decisionmaker. He instead crossed the line into advocacy against the project. There was evidence that Schenirer was counting---if not securing---votes on the city council against the gas station and communicating an "update" on that score to the mayor. E-mailing the talking points to the mayor suggested behind-the-scenes advocacy against the gas station.

There was also evidence that Schenirer was "coaching" Johnson on how to prosecute the appeal. Schenirer thus took affirmative steps to assist opponents of the gas station. His failure to recuse himself denied Petrovich a fair hearing.

Petrovich Development Company, LLC v. City of Sacramento (Johnson); Third DCA, May 12, 2020