138 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 143 Civ. Proc. Code §§ 1286.2(a)(4), 1286.6(b). 144 Cable Connections v. DirecTV, 44 Cal. 4th at 1340, 89 Cal. Rptr. 3d at 234. 145 Cummings v. Future Nissan, 128 Cal. App. 4th 321 (2005). 146 Little v. Auto Steigler, Inc., 29 Cal. 4th 1064, 1072 (2003). 147 Alvarez v. Altamed Health Servs. Corp., 60 Cal. App. 5th 572 (2021) (also citing lack of clarity as to the procedure to follow in the second arbitration, which itself increases costs of litigating issues). 148 Lab. Code § 925. Section 925, effective 2017, not only invalidates mandatory forum-selection and choice-of-law provisions but creates, in subdivision (c), a right of action for employees subjected to such provisions: (a) An employer shall not require an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would do either of the following: (1) Require the employee to adjudicate outside of California a claim arising in California. (2) Deprive the employee of the substantive protection of California law with respect to a controversy arising in California. (b) Any provision of a contract that violates subdivision (a) is voidable by the employee, and if a provision is rendered void at the request of the employee, the matter shall be adjudicated in California and California law shall govern the dispute. (c) In addition to injunctive relief and any other remedies available, a court may award an employee who is enforcing his or her rights under this section reasonable attorney fees. (d) For purposes of this section, adjudication includes litigation and arbitration. (e) This section shall not apply to a contract with an employee who is in fact individually represented by legal counsel in negotiating the terms of an agreement to designate either the venue or forum in which a controversy arising from the employment contract may be adjudicated or the choice of law to be applied. 149 Midwest Motor Supply Co. v. Superior Ct. (Finch), 56 Cal. App. 5th 702 (2020). 150 Pinela v. Neiman Marcus Grp., Inc., 238 Cal. App. 4th 227, 246-47 (2015). 151 Id. at 247-56. 152 Id. at 257. 153 Verdugo v. Alliantgroup, LP, 237 Cal. App. 4th 141 (2015). 154 Id. at 146. 155 Id. 156 Id. at 144-45. 157 Id. at 144. 158 Id. at 144-45. 159 Id. at 160. 160 Gantt v. Sentry Ins., 1 Cal. 4th 1083, 1094 (1992). The high court has acknowledged that the Legislature, not the judiciary, makes public policy in the employment arena: ‘public policy’ as a concept is notoriously resistant to precise definition, and … courts should venture into this area, if at all, with great care and due deference to the judgment of the legislative branch, ‘lest they mistake their own predilections for public policy which deserves recognition at law.’ … [C]ourts ‘should proceed cautiously’ if called upon to declare public policy absent some prior legislative expression on the subject.” Id. at 1095 (internal quotations and citations omitted). 161 See, e.g., Stevenson v. Superior Ct. (Huntington Mem’l Hosp.), 16 Cal. 4th 880, 889-90 (1997) (public policy must have support in constitutional or statutory provision, inure to public benefit rather than merely individual interest, be articulated at the time of employee’s dismissal, and be fundamental and substantial); Foley v. Interactive Data Corp., 47 Cal. 3d 654, 670 n.12 (1988) (no public policy implicated where plaintiff told management that co-worker was suspected of embezzlement at his prior place of employment, as the parties, consistent with public policy, could have expressly agreed that plaintiff was not to reveal co-worker’s background). 162 Green v. Ralee Eng’g Co., 19 Cal. 4th 66, 79 (1988); Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1256 n.9 (1994). 163 Lagatree v. Luce, Forward, Hamilton & Scripps, 74 Cal. App. 4th 1105, 1116 (1999) (“The rights underlying Lagatree’s claim are easily identified: an individual’s constitutional rights to a jury trial and a judicial forum for the resolution of disputes. The question thus becomes whether those rights can be waived by agreement. As a general rule, they are subject to waiver”).. 164 Chamber of Com. of the United States v. Bonta, 62 F.4th 473 (9th Cir. 2023). 165 Williams v. Sacramento River Cats Baseball Club, LLC, 40 Cal. App. 5th 280, 283 (2019) (“Tameny . . . requires ‘the prior existence of an employment relationship’ between the parties upon which to predicate a tort duty of care … Because defendant did not owe [a job applicant] any duty, plaintiff cannot bring a failure to hire claim against defendant in a common law tort action and must instead proceed under the [FEHA].”). 166 See, e.g., Jersey v. John Muir Med. Ctr., 97 Cal. App. 4th 814, 825-27 (2002) (employee sued abusive client; case did not implicate any anti-retaliation provision such as exists in employment discrimination statutes); Becket v. Welton Becket & Assocs., 39 Cal. App. 3d 815, 822 (1974) (no clearly identified constitutional or statutory provision supports public policy favoring free access to courts without fear of retaliation). 167 Carter v. Escondido Union High Sch. Dist., 148 Cal. App. 4th 922, 926 (2007). 168 Dutra v. Mercy Med. Ctr. Mt. Shasta, 209 Cal. App. 4th 750, 756 (2012).
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