144 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 311 Flores v. AutoZone West, 161 Cal. App. 4th 373, 380-81 (2008) (the question of “whether the employee’s physical eruption, stemming from his interaction with a customer, is a predictable risk of retail employment” presented a question of fact and precluded summary judgment). 312 See, e.g., Morales-Simental v. Genentech, Inc., 16 Cal. App. 5th 445, 456 (2017) (affirming summary judgment for company sued for death caused by employee while driving to work, because employee was simply going to work and was not performing “special errand” for his employer and an “employee’s decision to take work home or to drive to work at an unusual time does not bring the trip within the scope of employment”). 313 Moradi v. Marsh USA, Inc., 219 Cal. App. 4th 886, 890 (2013). See also Purton v. Marriott Int’l, Inc., 218 Cal. App. 4th 499, 509-10 (2013) (reversing summary judgment for Marriott on wrongful-death claim by estate of doctor who was killed by a Marriott bartender who had tended bar at a non-mandatory holiday party and was driving intoxicated; even though the accident occurred after the bartender had returned home, before returning to the road to give a lift to another intoxicated co-worker, Marriot could still be responsible: “a trier of fact could conclude that the party and the drinking of alcoholic beverages benefitted Marriott by improving employee morale and furthering employer-employee relations … and … that [the bartender] was acting within the scope of his employment while ingesting alcoholic beverages at the party”). 314 Moradi, 219 Cal. App. 4th at 891. Another 2013 appellate decision went the other way, affirming summary judgment for an employer whose employee, driving a company vehicle, hit another vehicle. In that case the Court of Appeal held that the employee’s trip was “entirely personal” in that it involved a 140-mile detour from his normal commute, and in that it was not taken for the benefit of the company. The risk of this accident was thus not even broadly incident to the company’s enterprise. Halliburton Energy Servs., Inc. v. Dep’t of Transp., 220 Cal. App. 4th 87 (2013); but see Moreno v. Visser Ranch, Inc., 30 Cal. App. 5th 568, 583-84 (2018) (distinguishing Halliburton because the driver was on personal business when the accident occurred, but noting that this did not establish as a matter of law that he was engaged in "purely” personal business). 315 Newland v. Cnty. of Los Angeles, 24 Cal. App. 5th 676, 689-91 (2018). 316 Id. at 692-93. 317 Talley v. County of Fresno, 51 Cal. App. 5th 1060 (2020).. 318 See Commodore Homes, Inc. v. Superior Ct., 32 Cal. 3d 211, 220-21 (1982) (tort-like remedies are available under FEHA); Cal. Gov’t Code § 12965(b)(6) (attorney fees and expert witness costs awardable to prevailing party). 319 Stamps v. Superior Ct., 136 Cal. App. 4th 1441 (2006) (Ralph Civil Rights Act of 1976 and Tom Bane Civil Rights Act, codified in Civil Code sections 51.7 and 52.1, provide separate claims for employee suffering employer’s discriminatory violence and intimidation; while the Unruh Act does not apply to employment discrimination, neither section here is part of the Unruh Act, and both statutes authorize a private right of action in employment cases—section 51.7 making wrongdoer liable for “actual damages suffered by any person denied that right” and section 52.1 providing that person whose rights have been interfered with “may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages”). 320 Jimenez v. U.S. Cont’l Mktg., Inc., 41 Cal. App. 5th 189 (2019). 321 St. Myers v. Dignity Health, 44 Cal. App. 5th 301 (2019). 322 Medina v. Equilon Enters., LLC, 68 Cal. App. 5th 868 (2021). 323 Lab. Code § 1194 (employee suing for statutory minimum wage entitled to attorney fees); Earley v. Superior Ct. (Washington Mut. Bank), 79 Cal. App. 4th 1420, 1429-30 (2000) (written notice to class members deciding whether to opt out is not to advise that they could be liable for defendant’s attorney fees if the defendant prevails; the policy stated in section 1194 overrides the general language of section 218.5; court harmonizes the two sections to hold that a prevailing defendant can obtain attorney fees in wage claims generally but not in claims for minimum wage or overtime premium pay). Section 218.5 does not apply “to any cause of action for which attorney fees are recoverable under Section 1194.” Lab. Code § 218.5(b). 324 Lab. Code § 218.5(a) (“[I]f the prevailing party in the court action is not an employee, attorney fees and costs shall be awarded pursuant to this section only if the court finds that the employee brought the court action in bad faith.”). Although “bad faith” is not defined, it is likely that an employer must show that the employee’s claim was brought with knowledge that it was baseless. 325 Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1099 (2007). The result of this pro-employee holding was that the statute of limitations for claims seeking meal and rest pay was three years instead of just one. 326 Kirby v. Immoos Fire Prot., 53 Cal. 4th 1244, 1255, 1257 (2012) (“[The] question here is whether a Section 226.7 claim, which concerns an employer’s alleged failure to provide statutorily mandated meal and rest periods, constitutes an ‘action brought for the nonpayment of wages’ within the meaning of Section 218.5. We conclude it does not.”; “[A] section 226.7 claim is not an action brought for nonpayment of wages; it is an action brought for nonprovision of meal or rest breaks.”). The Supreme Court in Kirby distinguished its prior decision holding that the pay owed for meal-break violations is a “wage.” Id. at 1257 (discussing Murphy v. Kenneth Cole Prods., 40 Cal. 4th 1094 (2007) (“To say that a section 226.7 remedy is a wage, however, is not to say that the legal violation triggering the remedy is nonpayment of wages. As explained above, the legal violation is nonprovision of meal or rest breaks, and the object that follows the phrase ‘action brought for’ in section 218.5 is the alleged legal violation, not the desired remedy.”). 327 SB 462, 2013 bill amending Lab. Code § 218.5. 328 Lab. Code § 218.5(a) (described above). The Court of Appeal has held that this statute is procedural and applies to pending litigation, thus depriving employers of attorney fees for cases they won that were filed before section 218.5 was amended. USS-Posco Indus. v. Case, 244 Cal. App. 4th 197, 215-22 (2016). 329 Lab. Code § 1194(a). 330 Aleman v. AirTouch Cellular, 209 Cal. App. 4th 556, 579-84 (2012) (a split-shift claim seeks the minimum wage and is thus subject to section 1194 provision permitting only employee to recover attorney fees; a reporting-time claim seeks unpaid wages at the regular rate and thus is subject to section 218.5).
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