416 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com Conclusion Whether or not you consider California a leader in “progressive” labor and employment laws likely will depend on whether you are a plaintiffs’ attorney or an employer. Something that any objective observer must acknowledge, however, is that California employment law often is peculiar. 1 See Pen. Code §§ 631, 637.2. 2 Pen. Code § 631(d); but see Pen. Code §§ 633.5, 633.6(a) (permitting use of recordings of confidential communications in criminal proceedings as evidence of various crimes including extortion, bribery, and any felony involving violence against the person making the recording); People v. Guzman, 11 Cal. App. 5th 184, 186 (2017) (holding Pen. Code § 632(d)’s exclusionary language nullified by Article I, Section 28 of the California Constitution in criminal proceedings); People v. Ratekin, 212 Cal. App. 3d 1165, 1169 (1989) (holding Pen. Code § 631(c)’s exclusionary language nullified by Article I, Section 28 of the California Constitution in criminal proceedings). The tapes generally are inadmissible in evidence. 3 Smith v. Loanme, Inc., 11 Cal. 5th 183 (2021). 4 Code Civ. Proc. § 527.8. See USS-Posco Indus. v. Edwards, 111 Cal. App. 4th 436 (2003) (affirming three-year injunction against former employee who made generalized threats of workplace violence while still employed; employer may obtain injunction on behalf of employee who is logical target of threats, even if not specifically identified by the harasser). 5 Robinzine v. Vicory, 143 Cal. App. 4th 1416 (2006) (employer’s petition under the Workplace Violence Safety Act, Code of Civil Procedure § 527.8, cannot, as a matter of law, support a claim for malicious prosecution; thus employee’s malicious prosecution suit must fail and employee is vulnerable to an anti-SLAPP motion). 6 Pen. Code §§ 18150, 18170, 18190. 7 Code Civ. Proc. § 425.16. 8 Wilson v. Cable News Network, Inc., 7 Cal. 5th 871 (2019). 9 Symmonds v. Mahoney, 31 Cal. App. 5th 1096, 1106 (2019). 10 Laker v. Bd. of Trustees, 32 Cal. App. 5th 745 (2019). 11 Verceles v. Los Angeles Unified Sch. Dist., 63 Cal. App. 5th 776 (2021). 12 Code Civ. Proc. § 3294. 13 Barton v. Alexander Hamilton Life Ins. Co. of Am., 110 Cal. App. 4th 1640 (2003). 14 Kelly v. Haag, 145 Cal. App. 4th 910 (2006) (substantial evidence did not support $75,000 punitive damages award against defendants in fraud action where plaintiff did not present evidence of defendant’s net worth or ability to pay; plaintiff on remand is not entitled to a retrial on punitive damages, because plaintiff had full and fair opportunity to establish defendant’s financial condition but failed to do so). 15 See Code Civ. Proc. § 3295. 16 Brewer v. Premier Golf Props., 168 Cal. App. 4th 1243 (2008) (plaintiff may not recover punitive damages for Labor Code violations regarding meal and rest breaks, pay stubs, or minimum wage, because (1) the express statutory remedies are exclusive absent evidence that they are inadequate and (2) the statutory provisions on these subjects arise from a contractual employment relationship, thereby precluding punitive recoveries). 17 Colucci v. T-Mobile USA, Inc., 48 Cal. App. 5th 442 (2020). 18 Code Civ. Proc. § 335.1. 19 Chamber of Commerce v. Whiting, 563 U.S. 582 (2011) (federal immigration law did not preempt the Legal Arizona Workers Act, which required that all Arizona employers use E-Verify to confirm that the workers they employ are legally authorized workers). 20 Lab. Code § 2812 (“Except as required by federal law, or as a condition of receiving federal funds, neither the state nor a city, county, city and county, or special district shall require an employer to use an electronic employment verification system, including under the following circumstances: (a) As a condition of receiving a government contract. (b) As a condition of applying for or maintaining a business license. (c) As a penalty for violating licensing or other similar laws.”). 21 Lab. Code § 2814. 22 Lab. Code § 1019.1. 23 Garcia v. Pexco, LLC, 11 Cal. App. 5th 782, 787 (2017). 24 Id. at 788. 25 Id. For an example of a third-party beneficiary successfully invoking an arbitration agreement, see Selby v. Deutsche Bank Trust Co. Ams., No. 12-01562, 2013 WL 1315841 (S.D. Cal. Mar. 28, 2013). The arbitration clause at issue—a credit card agreement—permitted “any involved third party” to elect “binding arbitration.” Accordingly, successor servicers to the signatory bank could compel arbitration of plaintiff’s claim, even though they did not sign the arbitration agreement.
RkJQdWJsaXNoZXIy OTkwMTQ4