Author: WorkCompAcademy

Melissa Mandell-Brown filed a complaint against her employer Novo Nordisk, Inc. asserting 16 causes of action, including statutory claims for discrimination, sexual harassment, and retaliation under FEHA and the Labor Code and common law claims for breach of contract, wrongful termination, and intentional infliction of emotional distress.

On May 18, 2022, defendants filed their motion for summary judgment or, in the alternative, summary adjudication and argued that none of plaintiff’s causes of action survived summary judgment. The supporting separate statement included 161 undisputed facts. Defendants also submitted an attorney declaration authenticating 25 discovery exhibits and six witness declarations authenticating another 51 exhibits and containing detailed explanations of the non-discriminatory and non-retaliatory reasons for the elimination of plaintiff’s job position. The notice of motion set the hearing date for August 3, 2022, with a trial date then pending for October 4, 2022.

Two days before the hearing on the motion, on August 1, 2022, plaintiff, who had not filed an opposition to the motion, applied ex parte to continue the hearing. The trial court granted the application, setting the hearing for September 16, 2022, and continuing the trial date to November 8, 2022.

On September 14, 2022, plaintiff, who still had not filed her opposition, again applied ex parte to continue the hearing, and the trial court granted the application, setting the continued date for October 14, 2022, and continuing the trial until December 6, 2022. At the October 14, 2022, continued hearing on the motion, plaintiff did not file an opposition or separate statement, request a third continuance, or appear at the hearing. The trial court denied the third continuance. And it also issued a minute order granting defendants’ motion for summary judgment based upon no opposition, “plaintiff is conceding that the motion should be granted.”

The Court of Appeal affirmed the judgment for defendant in the published case of Mandell-Brown v. Novo Nordisk Inc. et al. – B326147 (March 2025)

The requirements for opposing a motion for summary judgment or adjudication are set forth in CCP section 437c, subdivision (b)(3), which provides that: “The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”

Separate statements are “required, not discretionary, on the part of each party, and the statutory language makes the failure to comply with this requirement sufficient grounds to grant the motion.” (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902.)

Further, the trial court here granted plaintiff two continuances to file her opposition, which required two continuances of the trial date. Notwithstanding the additional time the court afforded her to file opposition papers, plaintiff failed to submit points and authorities addressing defendants’ evidence as it related to the elements of her claims, any declarations presenting disputed factual issues, or a separate statement to assist the court in parsing which of the 161 facts asserted and supported by defendants’ evidence she disputed.

“Under these circumstances, we conclude the trial court did not abuse its discretion in granting the motion pursuant to section 437c, subdivision (b)(3).”

Health insurer claim denial rates have been a significant concern in recent years. In 2024, Experian Health reported that 38% of healthcare providers experienced claim denials for at least one in ten claims, with some organizations seeing denial rates of more than 15%. The denial rates for insurers of qualified health plans (QHPs) sold on HealthCare.govwere also notable, with 19% of in-network claims and 37% of out-of-network claims being denied, resulting in an average denial rate of 20% for all claims.

The variation in denial rates among insurers is substantial. For instance, UnitedHealthcare denied nearly one-third of claims, making it the company with the highest denial rate among those offering plans on Affordable Care Act exchanges. Common reasons for claim denials include missing or inaccurate data, lack of prior authorization, and excluded services.

Despite the high denial rates, consumers rarely appeal denied claims. In fact, fewer than 1% of denied claims were appealed, and insurers upheld 56% of those appeals. These statistics highlight the ongoing challenges faced by healthcare providers and patients in dealing with claim denials.

The government has taken several steps to address the issue of health insurer claim denial rates. Here are some key actions:

– – Transparency Requirements: The Affordable Care Act (ACA) mandates that insurers report transparency data for all non-grandfathered health plans sold on and off the Marketplace, including fully-insured and self-insured employer group health plans. This data is available to federal and state insurance regulators and the public.
– – Data Analysis and Reporting: The Centers for Medicare and Medicaid Services (CMS) analyze and release data on claims denials and appeals for non-group qualified health plans (QHPs) offered on HealthCare.gov.This data helps identify patterns and areas for improvement.
– – Policy Recommendations: The ERISA Advisory Council (EAC), a body appointed by the Secretary of Labor, has made 12 policy recommendations to improve the claims denial and appeals process. These recommendations aim to address dubious denial processes and make the appeals process less difficult for consumers.
– – Consumer Protection: The government continues to monitor and enforce regulations to protect consumers from unfair claim denials. This includes ensuring that insurers comply with transparency requirements and addressing any violations.

And now in California Assembly Bill 682, proposed new legislation authored and introduced by Assemblymember Liz Ortega of Hayward, would mandate public reporting on the denials of insurance claims for California’s patients.

The new bill seeks to mandate collection and public reporting of health insurance claims denial information for each health plan regulated by the California Department of Managed Health Care (DMHC) and the California Department of Insurance (CDI).

The information collected and reported would include the number of claims denied, the costs of denied claims, whether or not artificial intelligence was used in the decision, and — significantly — reasoning for denying claims, such as a lack of prior authorization or an out-of-network provider.

California Nurses Association (CNA) and its more than 100,000 members across California today shared their support for Assembly Bill 682 in its press release.

Pedro Susano Herrera Marquez (Herrera) was injured on December 31, 2019, while operating a power press while working for Research Metal Industries, Inc. (RMI). The injury occurred when a power press ram used for stamping metal parts unexpectedly stroked downward while Herrera’s hand was beneath it. Herrera received workers’ compensation benefits for this injury.

According to a California Occupational Safety and Health Administration (Cal-OSHA) summary prepared after the accident occurred, “At the completion of [the press] stamping a piece of metal, the ram of the punch press returned to the up position. As [Herrera] went to remove the piece of stamped metal from the punch press’s tooling the punch press ram began its next cycle and came down onto [Herrera]’s left hand.” “The malfunctioning of [the press’s] air control valve did not allow the punch press[’]s ram to lock in position after its upright stroke.”

In December 2020, Herrera sued RMI as well as Doe defendants. Herrera asserted a single cause of action against RMI for negligence pursuant to Labor Code section 4558 alleging that RMI failed to repair, maintain, or retrofit the power press and “removed the point of operation guard from the subject power press, rendering the safeguarding mechanism dysfunctional or unavailable for use.”

Federal Press manufactured the subject press, a Federal Press No. 10, in or about 1967. RMI purchased the press at auction in or about 2010. A Federal Press catalog obtained by Herrera after the accident depicted the company’s model No. 10 as having a two-button operator control mounted directly on the machine. At the time of Herrera’s injury, the subject press did not have such an original mounted two-button control. Rather, the press was equipped with a two-button control on a movable pedestal. Generally, two-button controls keep the operator’s hands out of the area where the ram strikes the item being shaped.

RMI had a third party install the two-handed control system. The two-button control was mounted on a movable pedestal that could be “moved out” “about three feet” away from the press.

RMI moved for summary judgment which the trial court granted. It found that because RMI submitted evidence that a functional two-button control was in use at the time of Herrera’s injury, RMI shifted the burden to Herrera to demonstrate a triable issue. Herrera attempted to do so by arguing that the two-button control did not comply with the manufacturer’s design or state and federal regulations and that the solenoid air valve did not comply with point of operation guarding requirements.

The Court of Appeal affirmed (although for a different reason than that relied upon by the trial court) in the unpublished case of Herrera Marquez v. Research Metal Industries -B329641 (February 2025).

Labor Code section 4558 provides that an injured employee may sue his employer in tort when the injury “is proximately caused by the employer’s knowing removal of, or knowing failure to install, a point of operation guard on a power press.” This narrow exception limits tort liability to cases where “the manufacturer designed, installed, required, or otherwise provided by specification for the attachment of the guards and conveyed knowledge of the same to the employer.”

RMI argued Herrera could not adduce evidence that “the manufacturer designed, installed, required, or otherwise provided by specification for the attachment of [the] guards and conveyed knowledge of [the] same to [RMI]” as required under subdivision (c) of section 4558. Herrera argued RMI had failed to shift the burden to him to demonstrate a triable issue. “The parties (like the trial court did) focus on whether RMI’s independent installation of a two-button control means RMI failed to install or removed a point of operation guard.”

However, under section 4558, “the culpable conduct is the employer’s ignoring of the manufacturer’s safety directive.” (Aguilera v. Henry Soss & Co. (1996) 42 Cal.App.4th 1724, 1730; see Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1134 [“From the plain language of section 4558, it is clear that an exception . . . only arises for a power press injury where the employer has been expressly informed by the manufacturer that a point of operation guard is required”].)

“Here, the summary judgment record shows that when RMI purchased the subject press at auction approximately 45 years after Federal Press had manufactured it, the press did not include a two-button hand control. Nor did RMI receive a Federal Press manual or other documentation at the time of purchase.

Thus, RMI made a prima facie showing that Federal Press did not convey any information to RMI concerning a point of operation guard. This shifted the burden to Herrera to demonstrate a triable issue of fact as to what Federal Press conveyed to RMI. He failed to do so.

Accordingly, Herrera failed to carry his burden to demonstrate a triable issue that Federal Press ‘designed, installed, required, or otherwise provided by specification for the attachment of the guards and conveyed knowledge of the same to [RMI].’ (§ 4558, subd. (c).) As this is dispositive, we need not consider Herrera”

The Labor Commissioner’s Office (LCO), which operates under the Department of Industrial Relations (DIR), has taken enforcement action totaling more than $1.1 million against Buena Park restaurant Food Source LLC for wage theft violations and failure to comply with paid sick leave requirements.

The total includes $532,561 in citations, issued to compensate 73 affected workers for multiple wage theft violations. These violations include unpaid wages, failure to pay overtime, unpaid contract wages, liquidated damages, and incomplete wage statements.

Additionally, the LCO filed a lawsuit for $575,803, seeking unpaid wages, damages, and penalties for the employer’s failure to comply with paid sick leave laws. The lawsuit also addresses violations such as denying workers access to paid sick leave, failing to document sick leave availability on pay stubs, leaving workers uninformed about their legal rights, and not providing supplemental paid sick leave during the COVID-19 pandemic.

In total, these violations impacted at least 90 workers at the restaurant.

Background on Paid Sick Leave

Under California’s Healthy Workplace, Healthy Families Act of 2014, employees who work at least 30 days in a year are entitled to paid sick leave, accruing one hour for every 30 hours worked. Employees can begin using their sick leave after 90 days of employment, with employers allowed to limit usage to 40 hours (five days) per year. Paid sick leave can be used for personal or family health care needs, including preventive care. Accrued balances may carry over, up to a cap of 80 hours (ten days). Certain employees, such as those covered by collective bargaining agreements, may be exempt. Refer to our FAQs regarding sick leave for additional information.

About the Labor Commissioner’s Office

DIR’s Division of Labor Standards Enforcement (California Labor Commissioner’s Office) combats wage theft and unfair competition by investigating allegations of illegal and unfair business practices. More information about wage theft is available at www.wagetheftisacrime.com.

The Labor Commissioner’s Office is urging current and former employees of Food Source LLC to come forward to support ongoing legal actions and to ensure they receive compensation. Workers who believe they were denied paid sick leave or other wages are encouraged to contact the confidential Paid Sick Leave Hotline at 855-526-7775. Employees can also reach out to the Labor Commissioner’s Office for questions or assistance with filing a wage claim at 833-LCO-INFO (833-526-4636) between the hours of 8:00 a.m. to 5:00 p.m. Monday through Friday.

The LCO in 2020 launched an interdisciplinary outreach campaign, “Reaching Every Californian.” The campaign amplifies basic protections and builds pathways to affected populations, so workers and employers understand legal protections and obligations, as well as the Labor Commissioner’s enforcement procedures.

California Labor Commissioner Lilia García-Brower said “Employees should not be forced to choose between their health and earning a livelihood. My office is committed to ensuring workers are properly paid for their labor and receive all the benefits they earn and rightfully deserve.”

Brian Ranger was a maintenance worker for the Alamitos Bay Yacht Club. As part of his duties, he painted, cleaned, maintained, and repaired the Club’s fleet of vessels. He also was tasked with hoisting the Club’s vessels in and out of navigable waters and mooring them.

On August 28, 2018, Ranger was assigned to lower a vessel into navigable waters using “a hoist, boom and hook, and thereafter to moor the vessel in navigable waters.” Once the vessel had been lowered into the water, Ranger boarded to unlock the vessel from the boom and moor it to the dock. Ranger alleges that he was required to board “directly onto an uneven, slippery and sloped surface at the bow of the vessel without adequate means of maintaining balance and stability,” causing him to slip and fall, “proximately causing him to sustain serious injuries and damages.”

Ranger applied for state workers’ compensation and then sued the Club in superior court. Ranger’s second amended complaint asserted two claims under general maritime law, which is “a species of judge-made federal common law.”

The first cause of action asserted that the Club negligently failed to provide Ranger with adequate training, policies and procedures for safe docking and boarding, and safe access to the vessel. The second cause of action asserted that the Club caused the vessel to be “unseaworthy, dangerous, unsafe and hazardous to employees . . . who were required to board said vessel.”

The trial court sustained the Club’s demurrer without leave to amend on the ground Ranger had failed to allege facts to implicate federal admiralty jurisdiction. In 2023 The Court of Appeal affirmed in the published case of Ranger v. Alamitos Bay Yacht Club (2023) 95 Cal.App.5th 240, 242.

The California Supreme Court reversed in its 2025 opinion in Ranger v. Alamitos Bay Yacht Club -S282264 (February 2025)

The Club argues that Ranger is barred from asserting these federal common law claims because he does not qualify as a statutory “employee” within the meaning of the Longshore and Harbor Workers’ Compensation Act (LHWCA; 33 U.S.C. § 901 et seq.). The LHWCA, as amended in 1984, excludes from the federal workers’ compensation scheme individuals who (like Ranger) are employed by “a club” and “are subject to coverage under a State workers’ compensation law.” (33 U.S.C. § 902(3)(B).)

The Court of Appeal agreed with the Club and affirmed the order sustaining the Club’s demurrer to Ranger’s complaint without leave to amend. The California Supreme Court reversed, and concluded the Court of Appeal erred.

The 1984 amendments to the LHWCA specify which workers’ compensation scheme – federal or state – applies, but they did not themselves purport to abrogate available general maritime remedies for those outside the LHWCA’s scope. Nor, under the supremacy clause of the federal Constitution, may the exclusive-remedy provision in California’s workers’ compensation scheme be applied to deprive a plaintiff of a substantive federal maritime right.

The exclusive-remedy provision in California’s workers’ compensation law would conflict with the established maritime claim for negligence, a tort that maritime law has recognized. Numerous federal courts have held that state workers’ compensation exclusive-remedy provisions cannot preclude a worker’s general maritime claims for relief.

Scholarly commentary, too, supports the conclusion that general maritime law trumps state workers’ compensation exclusivity provisions. (See Sturley et al., Recent Developments in Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh Circuits (Summer 2024) 48 Tul. Mar. L.J. 329, 336-337.”

“Whether Ranger’s general maritime claims might be barred under other provisions of the LHWCA – and whether Ranger’s claims properly invoked admiralty jurisdiction in the first place – are issues the Court of Appeal has not yet addressed.”