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Anti-SLAPP Statute Partially Protects School District from FEHA Claim

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Tina Royer was a tenured English professor with the the Los Rios Community College District. For the previous thirteen years, she had worked at the Folsom Lake College campus, and during most of the relevant time period, she was the chair of the English department. Josh Fernandez was an English professor at Folsom Lake College. As department chair, Royer was Fernandez’s supervisor.

Royer is Caucasian, Christian, married to a Christian minister, and active in her church, and her Christian background and conservative views are known to her colleagues at Folsom Lake College. Fernandez is Hispanic and is allegedly affiliated with Antifa.

In the fall of 2018, Fernandez was up for tenure, and Royer was one of three members of his tenure review committee. During the tenure review process, all three committee members expressed concerns about Fernandez’s conduct on campus. All three members of the tenure review committee initially determined Fernandez did not meet the guidelines for granting tenure.

Fernandez, however, had threatened to sue the District for attempting to curtail his activities on campus, and purportedly in response to his threat, Dean Snowden ultimately changed his mind about granting tenure. Royer claimed Dean Snowden and Folsom Lake College President Whitney Yamamura successfully pressured her to vote in favor of granting Fernandez tenure.

Although Royer voted in favor of granting tenure, her evaluation included some “less than satisfactory” marks, and Fernandez received a copy of the evaluation. Shortly thereafter, a colleague told Royer that Fernandez was telling other department members he “hated” her “because he received a ‘less than satisfactory’ evaluation” from her.

Around March 2019, Royer complained to the District about Fernandez’s conduct and the effect it was having on her physical and mental health, and she asked that his classroom be moved so it was not next to hers. The District declined to move Fernandez’s classroom, and offered to move her classroom instead, but she did not think she should have to move when she had done nothing wrong. She asked to work remotely in order to avoid interactions with Fernandez on campus. The District agreed

Controversies escalated, and ultimately Royer sued her employer for six separate violations of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA) and for invasion of privacy.

She claims a coworker subjected her to harassment because of her race and religion, and the District discriminated against her because of her race and religion, retaliated against her for complaining about harassment, failed to prevent harassment, and failed to reasonably accommodate her disability. She also claims that, after she filed a claim pursuant to the Government Claims Act (Gov. Code, § 810 et seq.), the District invaded her privacy by publishing the claim on its Web site without redacting her home address and confidential information about her disability.

The District responded to the lawsuit by filing a special motion to strike pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP statute). The District’s motion was directed at the entirety of the causes of action for harassment and invasion of privacy, and portions of the causes of action for discrimination, retaliation, and failure to prevent harassment.

The trial court granted the motion as to the discrimination cause of action and denied it as to the other causes of action. The District appealed, and the Court of Appeal reversed in part and affirmed in part, and remanded the case in the unpublished case of Royer v. Los Rios Community College District -C096484 (March 2024).

The District challenges the trial court’s finding that the invasion of privacy claim does not arise out of protected activity under the anti-SLAPP statutes.However when the board met to consider and act on Royer’s claim submitted pursuant to the Government Claims Act, that meeting was an official proceeding authorized by law within the meaning of the anti-SLAPP statute.

Royer argues she “is not suing [the District] for publishing her tort claim,” but instead is suing “because [it] published her tort claim in full without redacting her confidential information.” The trial court appears to have agreed, because it found, “the gravamen of [Royer’s] claim is not the publication of the Tort Claim itself, but the inclusion of her private medical and identifying information unnecessarily.” However the trial court thus should have proceeded to the second step and determined whether Royer met her burden of establishing a probability of prevailing.

The order denying the anti-SLAPP motion was reversed as to Royer’s first cause of action for harassment because she did not establish a probability of prevailing on that cause of action. The order denying the anti-SLAPP motion as to Royer’s seventh cause of action for invasion of privacy is also reversed because the trial court erred in finding it did not arise out of protected activity, and we remand this case to the trial court to determine whether Royer established a probability of prevailing on the invasion of privacy cause of action.

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ASSP Publishes First Standard on Heat Stress in Construction

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Since 1911, the American Society of Safety Professionals has helped occupational safety and health professionals protect people, property and the environment. The nonprofit society is based in Chicago’s suburbs. Its global membership of over 35,000 professionals develops safety and health management systems that prevent injuries, illnesses and fatalities.

ASSP has published the first national voluntary consensus standard addressing heat stress for workers in construction and demolition operations. Hundreds of thousands of workers frequently face outdoor hazards such as high heat and humidity.

“This new industry consensus standard is an important development because there is no federal regulation focused on heat stress,” said ASSP President Jim Thornton, CSP, CIH, FASSP, FAIHA. “Employers need expert guidance on how to manage heat-related risks. They must have the tools and resources to identify and help prevent work hazards before an incident occurs.”

ANSI/ASSP A10.50-2024, Heat Stress Management in Construction and Demolition Operations, offers guidance on protecting workers; explains how to acclimate workers to high heat conditions; and provides requirements for training employees and supervisors. The standard contains checklists and flowcharts designed to help companies develop clear and effective heat stress management programs that bridge the regulatory gap.

“There are tens of thousands of heat-related illnesses each year linked to construction and demolition sites, and workers have died from exposures to excessive heat,” said John Johnson, CSP, chair of the ANSI/ASSP A10 standards committee. “This new standard outlines industry best practices and proven solutions to protect workers who commonly do strenuous jobs in challenging conditions.”

The A10.50 standard identifies engineering and administrative controls a company can implement to ensure that workers get proper rest, water breaks and shade while still meeting business needs. Recommendations such as medical monitoring and using a buddy system can reduce risks and help prevent heat-related illnesses in many work environments.

While the scope of the standard focuses on construction and demolitions, the guidance can be adapted to protect workers performing other outdoor jobs such as tree trimming, farming, road maintenance and pipeline painting.

The impacts of heat stress can range from mild symptoms such as heat rash and heat cramps to severe conditions including heat exhaustion and heat stroke, which can be fatal. According to the U.S. Bureau of Labor Statistics, more than 400 work-related deaths have been caused by environmental heat exposure since 2011. The standard includes a detailed emergency response plan if a worker has a severe reaction to excessive heat.

The A10.50 subcommittee that wrote the standard consisted of 30 safety and health experts from businesses, trade unions, consulting firms, universities and government agencies. The inclusive process took three years.

Voluntary consensus standards provide the latest expert guidance and fill gaps where federal standards don’t exist. Companies rely on them to drive improvement, injury prevention and sustainability. With government regulations being slow to change and often out of date, federal compliance is not sufficient to protect workers.

ASSP leads the development of voluntary consensus standards for the workplace. In its last fiscal year, ASSP created, reaffirmed or revised 15 standards, technical reports and guidance documents, engaging 1,400 safety experts who represented 500 organizations. The Society also distributed more than 14,000 copies of standards.

The organization encourages companies to join ASSP in spreading awareness of heat-related hazards on National Heat Awareness Day on May 31 and during Extreme Heat Awareness Month in July.

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Doctor Sentenced to 3 Years for Illegally Issuing Telehealth Prescriptions

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A former Antelope Valley physician was sentenced to 37 months in federal prison for illegally dispensing prescriptions for often-abused controlled substances – including opioid-based medications – during telemedicine sessions with “patients” from across the United States.

Raphael Tomas Malikian, 39, who resides in Llano and Palmdale, was sentenced also ordered to pay a fine of $20,000.

Malikian pleaded guilty in October 2023 to one count of aiding and abetting the acquisition of a controlled substance by fraud and one count of distribution of oxycodone.

The Medical Board of California suspended Malikian’s medical license in November 2021. His license expired in November 2022.

From at least December 2019 to August 2021, Malikian was a licensed physician in California and, in this role, was authorized by the Drug Enforcement Administration (DEA) to prescribe medication. Malikian also owned and operated Happy Family Medicine, a medical clinic that was advertised as being in a co-working space in the Hollywood, but primarily offered telehealth services via telephone or text message communications.

Malikian issued prescriptions for controlled substances to customers without first obtaining the person’s full medical history, conducting a physical examination, requiring medical testing, or utilizing diagnostic tools. Malikian did not verify his customers’ identities before prescribing controlled substances, and he allowed customers to obtain prescriptions in the names of others.

He also worked with two co-conspirators, who provided Malikian with false names, addresses, dates of birth, and Malikian issued controlled substance prescriptions accordingly, which the co-conspirators then filled and re-sold on the black market.

Many of Malikian’s fraudulent controlled substance prescriptions contained notes on the prescriptions or accompanying documentation that falsely urged pharmacies not to verify such prescriptions because medications were urgently needed and the failure to dispense could be life threatening because of the COVID-19 pandemic.

Malikian issued hundreds of false prescriptions for liquid promethazine with codeine during this period – including to people he knew were fictitious patients and which totaled more than 82 liters – and directed them to be sent to various pharmacies across the nation for co-conspirators to obtain.

From April to July of 2020, Malikian prescribed to a buyer 702 pills of 10 milligrams oxycodone and 240 milliliters of promethazine with codeine. The customer, in fact, was an undercover law enforcement officer. Malikian issued each prescription to this buyer without conducting proper medical evaluations or verifying the buyer’s identity and was performed outside the scope of professional practice and without a legitimate medical purpose.

In addition, from May to July of 2020, Malikian prescribed to a customer – who also was an undercover law enforcement officer – 234 pills of the painkiller Norco, which contained a total of 2,340 milligrams of the opioid hydrocodone, and 180 pills of alprazolam, an anxiety medication sold under the brand name Xanax. Once again, Malikian issued each prescription to this buyer without conducting proper medical evaluations or verifying the buyer’s identity and was performed outside the scope of professional practice and without a legitimate medical purpose.

The DEA investigated this matter. The California Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse provided substantial assistance.. Assistant United States Attorney Brittney M. Harris of the International Narcotics, Money Laundering, and Racketeering Section prosecuted this case.

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CWCI Releases Study on CT Litigated Claims

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A new California Workers’ Compensation Institute (CWCI) study shows that almost half of all litigated claims in the LA Basin are cumulative trauma (CT) claims that involve physical or mental injuries that arise over time from repetitive stress, motion, or exposures, rather than from a specific event or accident.

The CWCI study, based on a sample of 1.4 million California work injury claims with 2010 to 2022 carrier notice dates, examines the growth of CT claims as a share of litigated claims in the California workers’ compensation system and explores the claim characteristics most associated with CT claims.  

The study found that statewide, CT claims increased from 29.4% to 37.5% of all litigated claims over the 13-year study period.  Regional results showed that over that same period, CT claims’ share of all litigated claims was fairly stable in Northern California and the Central Valley, but increased in 2022, while in Southern California CT claims’ share of the litigated claims increased steadily throughout the period.

The sharpest increase was in the Inland Empire/Orange County, where CT claims jumped from 30.2% of the litigated claims in 2010 to 40.6% in 2022, slightly more than the increase in Los Angeles County, where CT claims went from 38.6% to 48.7% of the litigated claims, and San Diego where CT claims increased from 25.0% of the litigated claims to 33.4%.  

A regression analysis, which controls for the influence of other variables, showed that the differences between the regions were only partially explained by differences in other underlying claim characteristics.  

Other key findings include:

– – Other than regional factors, differences in tenure had the strongest impact on differential CT rates. Employees with less than a year of tenure at the time of injury had a much lower CT rate (26.0%) than more tenured workers, as CT rates increased incrementally as tenure increased, climbing as high as 49.0% among workers with more than 10 years on the job.
– – A review of the CT rates across nine major industry sectors showed that CT claims were most prevalent in the manufacturing sector, where they accounted for nearly half (48.8%) of the litigated claims, which was almost twice the proportion noted in the construction sector. The food service sector had the second highest CT rate, with 46.9% of the claims in this sector involving CT injuries, while the agriculture sector had the lowest CT rate (24.2%). Regression results showed that while the type of industry influences CT rates, for most sectors other factors such as region and job tenure play a comparable role.
– – Workers under the age of 30 had a somewhat lower CT rate (28.3%) than workers who are over 30, whose CT rates ranged from 35.1% to 38.8%, though more than a third of all CT claims in the study involved injured workers who were under 40. Regression analysis showed that age is not a strong predictor of CT rates compared to other factors.
– – CT rates were considerably higher for workers at the lower end of the wage scale, with CT rates of 40.0% for workers making less than $300 per week and 42.1% for those earning $300 to $599 per week. In contrast, workers making more than $900 per week all had similar CT rates, with CT claims representing between 30.0% and 31.7% of their litigated claims. As with age, regression analysis showed that the employee’s average weekly wage is not a strong predictor of CT rates compared to other factors.

CWCI’s analysis of CT claims has been published in a Research Note, Cumulative Trauma and Litigated Claims in the California Workers’ Compensation System.  The report is available to the public here, and is available to CWCI members and research subscribers who log in to the Research section of the website.

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Couple Sentenced for $125M Compounded Pharmaceutical Fraud

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In February 2021, a strategically coordinated, six-week nationwide federal law enforcement action announced it has resulted in criminal charges against 138 defendants, including 42 doctors, nurses, and other licensed medical professionals, in 31 federal districts across the United States for their alleged participation in various health care fraud schemes that resulted in approximately $1.4 billion in alleged losses.

Two of these 138 defendants were prosecuted in the U.S. District Court for the Southern District of California. Charles Ronald Green Jr. and his wife, Melinda Elizabeth Green, were sentenced to 27 months each for fraudulently billing government healthcare programs more than $125 million for medically unnecessary treatments.

According to court filings, the Greens engaged in a scheme to defraud two major federal health care programs: TRICARE, the medical benefits program for military servicemembers and their families, and Medicare, the program that provides benefits to elderly or disabled Americans.

Chief U.S. District Judge Dana M. Sabraw also ordered $4.5 million in restitution to TRICARE and $69,915,909.69 to Medicare.

Between May 12, 2014, and June 29, 2015, the Greens conspired to submit false and fraudulent claims to TRICARE for expensive and medically unnecessary pain creams, scar creams and multi-vitamins, which were billed through various pharmacies. During this period, the Greens owned or were officers of several companies they used in furtherance of their scheme. The pharmacies paid these companies millions of dollars in illegal kickbacks and other remuneration in exchange for the referral of the false and fraudulent prescriptions for compounded medications to TRICARE beneficiaries.

In turn, the Greens and others paid a portion of their profits as kickbacks to so-called “marketing” organizations in exchange for more prescriptions for compounded medications. TRICARE and other payers often reimbursed compounding pharmacies thousands of dollars for a 30-day supply of a compounded pain or scar cream for one beneficiary. In just one example, on May 8, 2015, a false and fraudulent claim was submitted to TRICARE in the amount of $14,178 for Baclofen Powder.

In furtherance of the compounding fraud scheme, the Greens and others developed compounded medication formulations for the primary purpose of inflating the amount of money TRICARE would reimburse, and to correspondingly increase the amount of kickbacks and remuneration that affiliated marketers would receive.

The Greens’ knowing participation in the compounding fraud scheme resulted in the submission of false and fraudulent claims by one pharmacy in the approximate amount of $8,107,816, of which TRICARE paid at least $6,776,222.

Between June 1, 2018, and April 2019, the Greens also conspired to defraud Medicare by submitting false and fraudulent claims for expensive durable medical equipment, or “DME,” similarly induced through a system of illegal kickbacks.  The Greens and others executed the DME fraud scheme by purchasing “completed doctors’ orders” from various “marketers” for Medicare beneficiaries, which included a prescription signed by a doctor certifying the beneficiary received an exam that met Medicare’s requirements and that the DME was medically necessary.

In an attempt to disguise the DME fraud scheme from detection, the Greens and their co-conspirators entered into sham “marketing” and other contracts that concealed the pay-per-order arrangement. For example, on March 14, 2019, Charles Ronald Green prepared and submitted an invoice from the Greens’ company, NHS Pharma, concealing that NHS Pharma was being paid a per-brace kickback for selling completed doctors’ orders, but claimed instead to be charging for a $35,000 “TV Campaign,” a quantity of 716 website “Landing Pages,” and $6,928.71 for processing hours.

In addition to purchasing doctors’ orders in furtherance of making false and fraudulent claims on behalf of DME companies they owned or controlled, in some instances the Greens brokered the doctors’ orders by re-selling them at a markup to other DME companies.

The Court set a hearing for May 24, 2024, to resolve additional claims for restitution.

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Surveys Show California Business Climate Remains at All Time Low

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CEO Magazine has published it’s annual Best & Worst States survey of CEOs this year. Broadly speaking, the trends dictating how states are performing as economic actors these days extend beyond CEO opinion to include foreign companies’ increasing embrace of the U.S. market; reshoring and a renaissance in domestic manufacturing; the leveraging of state coffers flush from recent federal largess through tax cuts and other means; the rising value of experienced labor along with the expansion of automation; and the pandemic-era migration from city cores to exurbs and beyond.

Texas again places No. 1 this year, as it has annually in the survey since its inception. Florida ranked No. 2 again, extending its own string but also putting unprecedented pressure on Texas for the top spot. Tennessee once again is ranked No. 3 in state business climate by CEOs. North Carolina, at No. 4, and No. 5 Arizona flipped spots this year. No. 6 Indiana is a mainstay as well.

Just as CEOs have solidified opinions about the welcoming top states, their assessment of the worst has ossified: No. 47 New Jersey, No. 48 Illinois, No. 49 New York and No. 50 California remain the same as in the 2022 survey.

Tech layoffs amounted to an estimated 333,000 just since last year, according to a new study by Boston Consulting Group. California workers certainly have suffered the most.

But in between, there are some significant advances in this year’s ranking, especially the rise of Georgia and South Carolina, each up four spots to No. 7 and No. 8 in the Chief Executive list. They’ve joined Florida in the broad advance of the Southeast, especially as a new manufacturing hub.

In another related study of small business sentiment, the Freedom Economy Index surveyed a universe of over 80,000 small business owners throughout the United States, fielding the questionnaire from February 6 to 9, 2024, with 840 respondents. The survey has a margin of error of +/-3.0% at the 95% confidence level.

The survey compared the individual results for California and Florida, and also Red States and Blue States nationwide. The stark contrasts leave little doubt where small businesses thrive.

Only 13% of small businesses in California are happy with their location, which is nearly 40% lower than the national average, according to the February survey of 80,000 small business owners nationwide, a joint project of PublicSquare and RedBalloon.

Nationwide, half of respondents say they are happy with their current location and don’t plan on moving. In California, 13% say they are happy in their location, and 67% are either planning a move (10%), considering a move (30%) or they are feeling trapped, wanting to move but can’t afford it (27%).

Respondents were asked to identify which factors make them want to relocate, with the ability to choose multiple items, 64.5% of employers list high tax rates, and 59.4% blame anti-business government policies. Again, looking just at California, the Golden State is struggling, as 86.4% say high taxes are driving them away, and 84.9% say the anti-business government is also to blame.

But the weather is nice”

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The EEOC Announces Filing Deadline for 2023 EEO-1 Component 1 Data

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The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria, to submit demographic workforce data to the EEOC.

As announced this week,the 2023 EEO-1 Component 1 data collection will open on Tuesday, April 30, 2024. The deadline to file the 2023 EEO-1 Component 1 report is Tuesday, June 4, 2024.

The EEOC’s EEO-1 Component 1 online Filer Support Message Center (i.e., filer help desk) will also be available on Tuesday, April 30, 2024, to assist filers with any questions they may have regarding the 2023 collection.

All updates about the 2023 EEO-1 Component 1 data collection, including the 2023 EEO-1 Component 1 Instruction Booklet and the 2023 EEO-1 Component 1 Data File Upload Specifications, will be posted to www.eeocdata.org/eeo1 as they become available.

The EEOC anticipates posting the 2023 EEO-1 Component 1 Instruction Booklet and the 2023 Data File Upload Specifications by Tuesday, March 19, 2024.

Traditionally, EEO-1 reports require employers to pick a payroll end date between October 1, 2023, and December 31, 2023, as your “workforce snapshot period.” This which will become the basis of reporting all employees as of that date. New for this reporting cycle, the EEOC has said that you will need to file an EEO-1 report if you reached 100 or more employees during any point of the fourth quarter of 2023.

The EEO job categories are:

(1.1) Executive/Senior-level officials and managers
(1.2) First/Mid-level officials and managers
(2) Professionals
(3) Technicians
(4) Sales workers
(5) Administrative support workers
(6) Craft workers
(7) Operatives
(8) Laborers and helpers
(9) Service workers

Employees must be given an opportunity to self-identify their sex and race/ethnicity, and be provided a statement about the voluntary nature of the inquiry.

The race/ethnicity categories are unchanged:

– – Hispanic or Latino: A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race.
– – White (Not Hispanic or Latino):A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.
– – Black or African American (Not Hispanic or Latino):A person having origins in any of the black racial groups of Africa.
– – Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino):A person having origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific Islands.
– – Asian (Not Hispanic or Latino):A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent, including for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.
– – American Indian or Alaska Native (Not Hispanic or Latino):A person having origins in any of the original peoples of North and South America (including Central America) and who maintains tribal affiliation or community attachment.
– – Two or More Races (Not Hispanic or Latino): All persons who identify with more than one of the above five races.

The EEO-1 reporting system has slowed down significantly as the deadline approached, which makes filing more challenging. Employers might want to allow yourself sufficient time before the deadline so you aren’t scrambling at the last minute with technical challenges. Typically, the EEOC does not provide for extensions. It would be beneficial to file well before the June 4, 2024 deadline.

The EEOC has recently made significant updates to the EEO-1 Report. The changes include revised nomenclature for report types, guidelines for remote employees, and the inclusion of non-binary employees. The report now also requires the use of Unique Entity IDs (UEI) for federal contractors instead of DUNS numbers. Employers need to stay updated with these changes and ensure their reporting is in line with the latest guidelines.

Employers are encouraged to actively stay informed about EEO-1 reporting updates and reach out to legal counsel for guidance and support in ensuring your compliance with the 2024 requirements.

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Medical Board COVID Misinformation “Gag Law” Battles End in California

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The California Medical Board supervises the medical profession in California by issuing licenses, reviewing the quality of medical practice carried out by physicians and surgeons, approving medical- evaluation programs, and administering the continuing- medical-education program. As part of this responsibility, the Medical Board has a duty to “take action against any licensee who is charged with unprofessional conduct,” which includes gross negligence, repeated negligent acts, incompetence, dishonesty, and corruption.

California’s Business and Professions Code identifies a wide array of activities that the California legislature has determined constitute unprofessional conduct and can lead to professional discipline.

Frustrated by what it saw as an “amplification of misinformation and disinformation related to the COVID-19 pandemic” by licensed medical providers who hold a high degree of public trust, the California Medical Association sponsored a bill aimed at ensuring medical professionals were “held accountable for the information they spread.”

In the Fall of 2022, after some revisions narrowing its scope, the legislature passed, and Governor Newsom signed into law, AB 2098. As codified, the law provided, in relevant part: (a) It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.

In his signing statement, Newsom acknowledged that he was “concerned about the chilling effect” of legislating doctor-patient conversations. Nontheless he signed the law because it was “narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care.”

The Liberty Justice Center filed McDonald v. Lawson  in the U.S. District Court for the Central District of California, in October 2022 to challenge AB2098.

The district court denied a preliminary injunction, holding that AB 2098 was neither an unconstitutional restraint on speech nor impermissibly vague. Drs. McDonald and Barke timely appealed.

In Couris v. Lawson, No. 22-55069, Michael Couris, M.D. and Michael Fitzgibbons, M.D. separately sued various California officials and also sought an injunction, but the district court stayed their case pending the 9th Circuit Court of Appeals decision in McDonald. Drs. Couris and Fitzgibbons timely appealed, and the Court of Appeals consolidated the two appeals.

In September 2023, the California Legislature passed Senate Bill 815, enacted as 2023 Cal. Stat., ch. 294 (SB 815), which repealed AB 2098. Governor Newsom signed SB 815 on September 30, 2023, and it took effect on January 1, 2024.

The 9th Circuit Court of Appeals requested supplemental briefing from the parties on the impact of SB 815 on this consolidated appeal. Relevant here, a “repeal, amendment, or expiration of legislation” gives rise to “a presumption that the action is moot, unless there is a reasonable expectation that the legislative body is likely to enact the same or substantially similar legislation in the future.” Bd. of Trs. of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1197 (9th Cir. 2019) (en banc).

While a private party’s voluntary cessation of challenged conduct “ordinarily does not suffice to moot a case” because the defendant may be “free to return to his old ways” and resume the conduct, see Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 174, 189 (2000) (citation omitted), the voluntary cessation of challenged conduct by government officials ‘must be treated with more solicitude.

Plaintiffs argue that this appeal is not moot because they face the possibility of being disciplined for violations that occurred while AB 2098 was in effect. If true, this could defeat a finding of mootness.

As part of California’s response addressing the impact of SB 815, the Executive Director of the Medical Board stated under penalty of perjury that, due to the legislative repeal, the Medical Board’s “employees and agents, including investigators . . . have been instructed not to enforce [AB 2098]” through the repeal effective date and that after AB 2098 is no longer in effect, “the Medical Board will have no legal authority to enforce [AB 2098].”

The Executive Director’s sworn statement was made in the context of litigation, and, consequently, the Medical Board may be judicially estopped from assuming a contradictory position on enforcement or pursuing legal action against Plaintiffs at a later date.

Thus the 9th Circuit Court of Appeals vacated the judgments and remanded both cases with instructions to dismiss the cases as moot in the published case of McDonald et. al. v. Lawson et. al. -22-56220 (February, 2024)

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DWC Launches Free Online Education Modules

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The Division of Workers’ Compensation (DWC) now offers free online educational courses for the workers’ compensation community, including medical providers, claims administrators, case managers, attorneys and HR managers. The training modules consistent of educational tools on the use of the Medical Treatment Utilization Schedule (MTUS), tips for Qualified Medical Evaluators (QMEs), and Medical Legal Report Writing.

All three courses qualify for free education credit for Continuing Medical Education (CME) and QME.

Additionally, the training modules for QME and MTUS also qualify for continuing educational credit for MCLE (California State Bar), SHRM (Society for HR Management), CRCC (Commission on Rehabilitation Counselor), CDMS (Certified Disability Management Specialist), IEA (Insurance Education Association), and CCMC (Commission for Case Manager Certification).

These courses taken together can earn up to 5.5 hours of educational credits.

The Medical Treatment Utilization Scheduled (MTUS) course covers the required use of the MTUS in the California Workers’ Compensation system. The course explains how to access and use the MTUS for the care of injured workers, and how to apply the MTUS to report writing. The course also describes the structure, scope, and application of the MTUS Drug-Formulary.

The Qualified Medical Evaluator module discusses requirements of the QME process and goes into depth regarding apportionment and bias in reporting. This course describes how to prepare for a QME evaluation, how to identify key components of a medical-legal report, and discusses the requirements of substantial medical evidence.

The Medical Legal Report Writing course offers a comprehensive outline of the essential components of a medical-legal report, identifies key concepts and terminology and includes the option to create a medical-legal report using a fillable outline.

Please visit the DWC website to learn more about these valuable training options.

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Late Payment Ends Employee Arbitration – Justice Wiley Dissents

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On November 25, 2020, Dana Hohenshelt filed a complaint against his former employer Golden State Foods Corp.. She alleged four causes of action: retaliation under the California Fair Employment and Housing Act (FEHA); failure to prevent retaliation under FEHA; violation of Labor Code section 226, subdivision (c), failure to timely provide copies of wage statements; and violation of Labor Code section 1198.5, subdivision (b), failure to timely provide copies of personnel records.

Golden State moved to compel arbitration according to the parties’ arbitration agreement. On April 1, 2021, the trial court granted the motion and stayed court proceedings pending binding arbitration.

On August 3, 2021, arbitration commenced via Judicial Arbitration and Mediation Services (JAMS). An arbitrator was appointed on August 16, 2021. Per the arbitrator’s fee schedule, “All fees are due and payable in advance of services rendered.” On July 29, 2022 JAMS sent an invoice to Golden State for $32,300. On August 29, 2022, JAMS sent another invoice for $11,760. Both invoices were due to be paid within 30 days of their respective due dates; both invoices provide that payment is “due upon receipt.”

On September 30, 2022, JAMS sent a letter stating: “Pursuant to our fee and cancellation policy, all fees must be paid in full by October 28, 2022, or your [arbitration] hearing may be subject to cancellation.”

Later that same day, on September 30, 2022, Hohenshelt notified JAMS and the court that because Golden State did not pay within 30 days of the due date, he was “unilaterally elect[ing]” to withdraw his claims from arbitration and to proceed in court pursuant to Code of Civil Procedure section 1281.98, subdivision (b)(1).

On October 5, 2022, Golden State confirmed via email to Hohenshelt that “all outstanding fees have been paid in full.” On October 6, 2022, Hohenshelt filed a motion to lift the litigation stay pending arbitration.

On February 2, 2023, the court denied the motion. It deemed Golden State’s payment timely based on the September 30, 2022 letter providing a new due date of October 28, 2022 for payment. The court held that “the arbitrator seemingly set a new due date of October 28, 2022.”

The Court of Appeal granted Hohenshelt’s petition for writ of mandate and directed the trial court to vacate its order denying the motion to lift the stay of litigation and to enter an order lifting the stay in the published case of Hohenshelt v. Superior Court -B327524 (February 2024).

“The trial court’s ruling was inconsistent with statutory mandate as well as recent appellate opinions. First, the trial court’s ruling ignored the clear language of Code of Civil Procedure.section 1281.98, subdivision (a)(2), which expressly provides that “[a]ny extension of time for the due date shall be agreed upon by all parties.” Here, there is no evidence that Hohenshelt agreed to any extension.

Secondly, the Second District Court of Appeal dealt with this exact same situation in Cvejic v. Skyview Capital, LLC (2023) 92 Cal.App.5th 1073. As did their colleagues in Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621.

“The same logic applies in the case before us. Golden State’s arbitration fees were due to be paid within 30 days of the two invoices.” Payment was not paid on time. “Section 1281.98 entitled Hohenshelt to withdraw from the arbitration. Section 1281.98 does not allow for any extension of time for the due date absent an agreement ‘by all parties.’ “

Golden State argues for the first time via its supplemental brief that section 1281.98 is preempted by the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) and that the Court of Appeal should uphold the trial court’s order to allow the parties to return to arbitration.

“The question of whether section 1281.98, as well as sections 1281.97 and 1281.99, are preempted by the FAA was addressed and answered in Gallo and followed thereafter by other courts. (See Suarez v. Superior Court (2024) 99 Cal.App.5th 32, 41-42; Espinoza v. Superior Court (2022) 83 Cal.App.5th 761, 783-784; De Leon v. Juanita’s Foods (2022) 85 Cal.App.5th 740, 753-754.)”

However, on this last point, Justice John Shepard Wiley Jr. wrote a dissenting opinion which began by noting “What preempts this statute is the decision to make arbitration the hostage of delay.”

“Delaying contract performance in bad faith is an odious tactic. Employers pursuing this tactic may deserve sanction. But sanctions like damages, a statutory fine of a motivating magnitude, and attorney fees would amply deter delay. Why abolish the arbitration itself?”

“One answer is that California state law disagrees, strongly and persistently, with federal law about whether arbitration is desirable.”

“By again putting arbitration on the chopping block, this statute invites a seventh reprimand from the Supreme Court of the United States.“

“Recall the past six. Over and over again, with determined but unavailing persistence, the Supreme Court of the United States has rebuked California state law that continues to find new ways to disfavor arbitration.”

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