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August 10, 2026 – News Podcast

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Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: California Laws Might Not Protect Remote Workers in Other States. 9th Circuit Declines to Compel Arbitration of ERISA Claim. Suspension of SCIF Attorney for Failing Cybersecurity Tests Affirmed. Contract Formed Upon Carriers Acceptance of Policy-Limits Demand. Employer’s Arbitration and Confidentiality Agreements Unconscionable. CWCI Reports Substantial Unexplained Increase in CT Claims. OLC Opinion: ADA’s State “Integration Mandate” Not Required by Law. Top Court Rules Drugmaker Has No Duty to Speed Safer Drug to Market.

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Is Subrogation Available in Injured Federal Worker Malpractice Cases?

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In California, a workers’ compensation insurance carrier has no subrogation or reimbursement rights in a medical malpractice case. Pursuant to California Civil Code section 3333.1 — the Medical Injury Compensation Reform Act (MICRA) carve-out — when an injured worker recovers damages in a medical malpractice lawsuit, the collateral source provider (the workers’ compensation carrier) is explicitly barred from recovering its paid benefits through a lien or subrogation action. Carriers retain normal subrogation rights under California Labor Code sections 3850–3865 for other third-party torts, such as auto accidents, premises liability, or defective products — the bar applies specifically to malpractice claims against the treating physician.

However, does this prohibition on medical malpractice subrogation apply when the injured worker is employed not by a California employer, but by the federal government — for example, the FBI? The facts of a newly published California Court of Appeal decision in Godshall v. Peterson, No. D086572 (Cal. Ct. App., 4th Dist., Div. 1, August 2026), set the stage for that question, though the court’s actual holding turns on an unrelated statute-of-limitations issue and does not address subrogation at all.

In this medical malpractice action, Cecilia Godshall alleges Drew A. Peterson, M.D. and California Orthopaedic Institute Medical Associates, Inc. negligently performed carpal tunnel surgery on her in 2017. Godshall was an office support technician with the Federal Bureau of Investigation (FBI) whose job involved substantial typing duties, and her medical care was authorized by the U.S. Department of Labor through her employment with the FBI. The defendants moved for summary judgment, asserting Godshall’s claims were barred by the one-year statute of limitations under Code of Civil Procedure section 340.5. The trial court granted the motion. The Court of Appeal reversed, holding that triable issues of fact remained as to when Godshall discovered, or should have discovered, both her injury and its negligent cause, since the one-year limitations period does not begin to run until a plaintiff discovers both.

So assuming that, after remand, Godshall successfully litigates her case to a recovery by trial or settlement, may the federal government recover the payments it made for her industrial injury by way of subrogation? A review of the relevant statutes and case law does not rule out subrogation recovery in a malpractice case for a federal employer — and in fact points strongly the other way.

Because Godshall is a federal employee, her carpal tunnel injury would have been covered not by California workers’ compensation but by the Federal Employees’ Compensation Act (FECA), administered by the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). FECA has its own third-party recovery scheme under 5 U.S.C. §§ 8131–8132 — a federal reimbursement mechanism that operates independently of California’s Labor Code §3852 subrogation lien process. When a federal employee’s FECA-covered injury subsequently becomes the subject of a third-party recovery — including a malpractice recovery against the treating physician — OWCP is entitled to reimbursement out of that recovery. This isn’t optional; the statute provides that the beneficiary “shall refund to the United States” the compensation paid.

This is confirmed by the Department’s own third-party liability training materials, which list “the claimant sues a surgeon for malpractice and wins a settlement (OWCP paid for surgery)” as a textbook example of a case that must be referred to the Solicitor’s Office for third-party recovery action. The governing federal regulation, 20 C.F.R. Part 10, Subpart H, goes further still, stating explicitly that “an injury caused by medical malpractice in treating an injury covered by the FECA is also an injury covered under the FECA,” so that any recovery in such a malpractice suit is treated as a “gross recovery” that must be reported to OWCP.

The Supreme Court has already held that state law can’t shrink this right — and the plaintiff was also an FBI agent. In United States v. Lorenzetti, 467 U.S. 167 (1984), an FBI special agent injured in a car accident argued that because Pennsylvania’s no-fault statute limited his tort recovery to non-economic losses like pain and suffering, the federal government’s §8132 reimbursement right — which attaches to compensation for medical expenses and lost wages — did not reach his settlement at all. A unanimous Court disagreed, holding that §8132 entitles the United States to reimbursement “out of any damages award or settlement made in satisfaction of third-party liability,” regardless of how state law characterizes or limits the underlying recovery. The Court’s reasoning rested on Congress’s intent in enacting FECA and on the principle that a state’s own damages taxonomy cannot be used to defeat a federal statutory reimbursement right.

California’s own MICRA architecture already assumes this. Civil Code §3333.1 bars “collateral sources” — including California workers’ compensation carriers — from asserting liens against a malpractice recovery, but California courts have already recognized that government payment programs sit outside that bar. In Brown v. Stewart (1982) 129 Cal.App.3d 331, the Court of Appeal held that Medi-Cal’s statutory lien survived §3333.1 precisely because Medi-Cal is a government-administered program, not an ordinary “collateral source” insurer covered by MICRA’s collateral-source bar.

Medicare’s own reimbursement right survives for a closely related reason: its federal Medicare Secondary Payer statute carries independent preemptive force, much as FEHBA’s express preemption clause does in the line of cases culminating in Coventry Health Care of Missouri, Inc. v. Nevils, 581 U.S. 87 (2017), where a unanimous Supreme Court held that a state anti-subrogation law could not override a federal employee health benefits carrier’s contractual subrogation right because doing so would interfere with “distinctly federal interests” in the uniform administration of a federal employee benefits program. FECA slots into that same category as an independent federal statutory scheme, not a state-law-created lien of the kind §3333.1 was written to reach.

No case squarely holds that “§3333.1 does not apply to a FECA lien.” The closest direct analogues are the Medi-Cal and Medicare carve-outs from §3333.1, and Lorenzetti itself, which involved a different type of state statute — a no-fault damages-limitation law, rather than a MICRA-style anti-subrogation provision. So the conclusion here is a strong doctrinal inference drawn from adjacent, well-settled law, rather than a question any court has decided on facts identical to Godshall’s. If Godshall’s case produces a recovery on remand, it could set up exactly the test case California law has not yet seen: whether the federal government’s FECA reimbursement right survives a state MICRA statute that would categorically bar the same claim by a private California carrier.

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No Loss of Consortium for Spouses of Injured Jones Act Seamen

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Tracy Simerley worked as a seaman on a ferryboat owned by Golden Gate Bridge Highway and Transportation District (District) when he was injured on the job. Tracy and his wife, Lynette Simerley, sued the District in March 2025, alleging Tracy qualified as a “seaman” under the Jones Act (46 U.S.C.A. § 30104). The complaint asserted causes of action for Jones Act negligence, maintenance and found and cure, and unseaworthiness under general maritime law — a strict-liability theory based on the vessel, its gear, crew, or equipment being unsafe or unfit for service. Lynette’s own claim for loss of consortium was pleaded as part of the unseaworthiness cause of action.

The District demurred to Lynette’s loss of consortium claim, arguing it was unavailable under both the Jones Act and general maritime law. Citing Miles v. Apex Marine Corp. (1990) 498 U.S. 19, the District argued the Jones Act does not permit recovery of non-pecuniary damages, and citing The Dutra Group v. Batterton (2019) 588 U.S. 358, it argued loss of consortium claims are unavailable to spouses of injured seamen under general maritime law as well. The Simerleys opposed, arguing general maritime law provided a common law remedy for loss of consortium and that Atlantic Sounding Co. v. Townsend (2009) 557 U.S. 404 made clear the District’s authority did not control. The San Francisco County Superior Court sustained the demurrer without leave to amend, concluding there was no recovery for loss of consortium under the Jones Act and, applying the framework from Batterton, no such remedy for unseaworthiness claims under general maritime law either.

In the published case of Simerley et al. v. Golden Gate Bridge Highway and Transportation District, No. A173588 (Cal. Ct. App., 1st Dist., Div. 1, August 2026) — the Court of Appeal affirmed.

The U.S. Supreme Court has addressed the relationship between general maritime law remedies and federal maritime statutes in a trio of decisions — Miles, Atlantic Sounding, and Batterton — and that Batterton, the most recent, supplies the controlling three-part test: (1) whether the requested relief has traditionally been available for the particular type of claim at issue; (2) whether allowing it would be necessary to maintain uniformity with Congress’s statutory scheme; and (3) whether policy grounds independently compel the relief. The panel rejected Lynette’s argument that Batterton did not control because its reasoning rested primarily on policy grounds and was not “on point,” holding that California courts are bound by the “ratio decidendi” of U.S. Supreme Court decisions on questions of federal law, and that all three Batterton factors, not policy alone, were necessary to that decision’s holding.

On the Jones Act, the panel held the statute’s own text forecloses a loss of consortium claim regardless of Batterton, since the Act permits only “[a] seaman injured in the course of employment” (or, if the seaman dies, his personal representative) to bring a civil action — language that does not authorize a claim by the seaman’s spouse. The panel found this consistent with Batterton’s separate conclusion that the Jones Act, by incorporating the remedial provisions of the Federal Employers’ Liability Act, limits recovery to pecuniary loss, and with the uniform view of federal courts that this pecuniary limitation applies to non-fatal injury claims just as it does to wrongful death claims.

Turning to general maritime law, the panel applied Batterton’s first factor and found the historical record insufficient to establish that loss of consortium was traditionally available for unseaworthiness claims specifically. The Simerleys relied on a federal district court decision, Morgan v. Almars Outboards, Inc. (D.Del. 2018) 316 F.Supp.3d 828, and, through it, on American Export Lines, Inc. v. Alvez (1980) 446 U.S. 274 and Sea-Land Services, Inc. v. Gaudet (1974) 414 U.S. 573. The panel found each of the older cases cited either did not involve an unseaworthiness claim at all, involved a longshoreman rather than a Jones Act seaman (a distinction Miles had already limited Gaudet’s holding to), or came too late to qualify as evidence from the “formative years” of the personal injury unseaworthiness claim, the historical period Batterton requires courts to examine. Because the Simerleys failed to identify a clear historical pattern of loss of consortium recovery specifically for unseaworthiness claims, the panel held that gap was, in the words of Batterton, “practically dispositive.”

The panel likewise found the second and third Batterton factors unfavorable: because the Jones Act itself bars loss of consortium recovery, allowing it under general maritime law for the parallel unseaworthiness claim would undermine rather than promote uniformity between the two causes of action, and the Simerleys offered no independent policy argument favoring the remedy. Having found no historical support, no uniformity-based justification, and no policy grounds favoring recovery, the panel held loss of consortium is unavailable under general maritime law for personal injury unseaworthiness claims brought by a Jones Act seaman’s spouse, affirmed the judgment, and did not reach the Simerleys’ separate argument that the trial court’s reliance on a different case was misplaced, since the appellate court may affirm on any ground supported by the record.

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Local Jurisdictions Must Include Needs of Disabled in Emergency Plans

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The California Attorney General has sent a guidance letter, dated August 10, 2026, to city attorneys, mayors, city managers, county counsel, and county administrative officers statewide, laying out local governments’ legal obligations to include people with disabilities in emergency planning, response, and recovery. The letter, issued by the Civil Rights Enforcement Section of the California Department of Justice, comes as Bonta’s office says it continues to receive complaints that the needs of Californians with disabilities are being overlooked in wildfire, earthquake, and other emergency planning across the state.

The letter’s central legal point is that accommodations for people with disabilities cannot be an afterthought handled case-by-case once a disaster hits. Citing a 2011 federal district court order against the City of Los Angeles and a similar 2013 ruling against New York City, the letter states that ad hoc accommodations requested only at the time of an emergency are “both legally inadequate and practically unrealistic.” Instead, under Title II of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) and Section 504 of the Rehabilitation Act (29 U.S.C. § 794), local governments must affirmatively anticipate the needs of residents with disabilities and build accommodations into emergency plans in advance, covering notification, evacuation, transportation, sheltering, and reintegration into the community. The letter traces this obligation to the Ninth Circuit’s 1996 decision in Crowder v. Kitagawa, which held that a facially neutral state policy can still deny meaningful access under the ADA if it disproportionately burdens people with disabilities.

The letter also flags a liability point some local governments may overlook: public entities remain legally responsible for disability discrimination committed by the private and nonprofit organizations they rely on during emergencies. Under federal regulations, Title II’s obligations attach to third-party contractors providing government services, so a city that contracts with a nonprofit to distribute recovery information can be held liable if that nonprofit’s services, physical location, or communications are not accessible.

Beyond the ADA and Section 504, the letter catalogs a lengthy list of other applicable laws local officials should know: California Government Code section 11135, which bars disability discrimination by recipients of state funding and was amended by regulation in 2024; the California Emergency Services Act (Gov. Code, §§ 8550–8668) and its implementing Standard Emergency Management System regulations; Education Code requirements that school districts include disability adaptations in their Comprehensive School Safety Plans; federal closed-captioning rules that now extend to internet-based streaming, meaning emergency video posted to a public entity’s website may need captions; and a Government Code requirement that 911 dispatch centers have equipment able to serve callers with hearing disabilities.

The bulk of the letter is a detailed, practical planning checklist organized around four phases. On communication, it recommends redundant alert methods beyond cell phone alerts (including door-to-door notification), advance arrangements for sign language interpreters and real-time captioning, and pre-drafted plain-language evacuation instructions free of jargon and acronyms. On evacuation, it calls for identifying accessible transportation resources in advance, planning for residents in high-rise buildings without elevator access during outages, and partnering with organizations like Centers for Independent Living that already know where residents with disabilities are located. On sheltering, the letter recommends assessing the physical accessibility of every pre-designated shelter site, stocking backup power for medical equipment like oxygen concentrators and electric wheelchairs, keeping refrigerated storage for medications, and training shelter staff on service animal rights and assisting with daily living activities. On reintegration, it recommends advance agreements with hotels to hold accessible rooms and coordination with social service providers to maintain continuity of care for displaced residents.

The letter closes by pointing local officials toward a substantial list of existing state and federal resources rather than requiring jurisdictions to build everything from scratch, including the California Governor’s Office of Emergency Services’ state emergency plan and its dedicated Integrated Evacuation Planning Guide for people with access and functional needs, the California Department of Rehabilitation’s disaster preparedness resources, and the U.S. Department of Justice’s ADA emergency planning guidance. The letter urges jurisdictions to involve people with disabilities directly in planning and training exercises, not merely as a “box to check,” and to consider hiring qualified outside experts to help build comprehensive plans. Questions about the letter can be directed to Michael L. Newman, Senior Assistant Attorney General for the Civil Rights Enforcement Section, which includes the department’s Disability Rights Bureau.

This summary is provided for general informational purposes only and does not constitute legal advice. Local governments and officials should consult the full guidance letter and applicable law directly, and may wish to consult legal counsel regarding their jurisdiction’s specific emergency planning obligations.

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Employer’s Narrowly Worded Arbitration Clause Not Enforceable

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Silvia Morales worked for San Diego Gas & Electric Company (SDG&E) for nearly 20 years, hired in September 2005 as a Human Resources Coordinator. When she was hired, Morales signed an offer letter and a formal acceptance, both stating her employment was “at-will” and both containing an arbitration clause covering “[a]ny dispute regarding any aspect of this letter of agreement or any action that allegedly violates any provision of this agreement.” About a week later, as a non-negotiable condition of employment, SDG&E had her sign a separate nine-page Employment, Confidential Information, and Invention Assignment Agreement containing nearly identical language, requiring arbitration of “[a]ny dispute regarding any aspect of this Agreement or any act which allegedly has or would violate any provision of this Agreement.” That later Agreement contained an integration clause stating it was “the entire Agreement and understanding” between the parties “relating to the subject matter herein” and that it “merges all prior discussions.”

In September 2024, SDG&E terminated Morales, citing a loss of confidence in her ability to work productively with leadership. Morales sued in January 2025, alleging disability discrimination, failure to accommodate, failure to engage in the interactive process, and retaliation under California’s Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) and the California Family Rights Act (CFRA; Gov. Code, § 12945.2), and asserting those statutory violations as the basis for a common law claim that she was terminated in violation of public policy under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.

SDG&E moved to compel arbitration, arguing the parties had agreed to arbitrate “all employment-related disputes” arising from Morales’s employment. The San Diego County Superior Court granted the motion. Although it acknowledged the Agreement was a contract of adhesion, the court reasoned that because the Agreement characterized Morales’s employment as “at-will,” any claim invoking a recognized exception to at-will employment — including her statutory and Tameny claims — necessarily concerned “an aspect of” the Agreement and so fell within the arbitration clause. Morales petitioned for a writ of mandate, and the Court of Appeal issued an order to show cause.

In the published case of Morales v. The Superior Court of San Diego County, No. D087448 (August, 2026) — the Court of Appeal granted Morales’s petition, directing the trial court to vacate its order compelling arbitration and enter a new order denying SDG&E’s motion.

The unanimous panel first resolved which document controlled. Because the later-signed Agreement contained an integration clause limited to “the subject matter herein,” the court held it was a partial integration that superseded the earlier offer and acceptance letters specifically as to arbitration, even though it left other employment terms like compensation untouched.

Turning to the Agreement’s arbitration language itself, the panel distinguished it from the broad, frequently enforced arbitration clauses covering any dispute “arising from, related to, or having any relationship or connection whatsoever with” a plaintiff’s employment, of the kind at issue in Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233 and Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, as well as the recently decided Fuentes v. Empire Nissan, Inc. (2026) 19 Cal.5th 93. The Agreement here instead used narrower language, requiring arbitration only of disputes “regarding any aspect of” the Agreement or acts that would “violate” it — wording the court found comparable to other agreements California courts have construed narrowly, limited to disputes over the interpretation or performance of the contract itself rather than every dispute connected to the employment relationship generally.

Applying that narrower scope, the panel held Morales’s FEHA, CFRA, and Tameny claims did not concern “any aspect of” the Agreement and did not allege any “violation” of it. Her claims rested entirely on statutory protections and public policy limitations on at-will employment that exist independently of, and are not created by, the parties’ contract, citing Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66 and Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083. Morales did not dispute that the Agreement classified her as an at-will employee; she instead invoked recognized statutory and public-policy exceptions to that at-will status, claims the court found had “nothing to do with” the Agreement’s own terms. The panel noted SDG&E could easily have drafted broader language tying arbitration to Morales’s employment generally, as the employers in Fuentes and comparable cases had done, but did not do so here.

The panel further held that even if the clause’s scope were considered ambiguous, that ambiguity would not favor SDG&E. While California law generally favors arbitration, courts cannot compel arbitration of disputes the parties did not actually agree to arbitrate, citing Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, and any ambiguity in an employer-drafted adhesion contract must be construed against the drafting employer, citing Sandquist. The court found it particularly unreasonable to expect a newly hired, legally unsophisticated employee, handed a stack of required paperwork, to anticipate that language limited to disputes over an “aspect” of the Agreement would reach statutory discrimination and public-policy wrongful-termination claims entirely independent of the contract. Having concluded the arbitration clause did not apply on its own terms, the panel found it unnecessary to reach Morales’s alternative arguments for unenforceability, granted the petition, and directed entry of a new order denying arbitration, with costs to Morales.

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August 3, 2026 – News Podcast

WorkCompAcademy

Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: No Need to Exhaust Underlying Coverage to Sue Excess Insurers. California Supreme Court Limits Public Employee Pension Spiking. Skilled Nursing Facility Chain Resolves Understaffing Case for $15M. High Gas Prices Drive Comp Mileage Rate to 76¢ on July 1. Jury Convicts Bay Area Home Health Agency CEO in Fraud Case. Santa Clara Company To Pay $180k to Resolve DEA Case. SoCal Attorney Disbarred and Pleads Guilty to Theft of Client Funds. Demise of Opioid Era Now Followed by New Generation of Pain Drugs.

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Counties Not Pension Boards Control Retirement Pay and Classifications

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The Los Angeles County Employees Retirement Association (LACERA), the nation’s largest county pension system with a portfolio exceeding $72 billion and more than 185,000 members, operates under the County Employees Retirement Law of 1937 (CERL; Gov. Code, § 31450 et seq.), which Los Angeles County adopted by ordinance shortly after CERL’s enactment. LACERA has more than 400 employees of its own, whose salaries and benefits make up the large majority of its administrative costs, all paid from the fund’s investment earnings rather than the County’s general fund. Since 1978, LACERA has hired its own fund-management staff under CERL provisions authorizing retirement boards to “appoint” necessary personnel, and after a 1996 legal opinion concluded the County had no authority to override LACERA’s classification and salary decisions, the County did not dispute that position for over two decades, removing LACERA employees from County collective bargaining units in the process.

That practice broke down in 2018, when a new County Counsel opinion disavowed the County’s prior position, concluding LACERA lacked constitutional or statutory authority to dictate classification and compensation decisions binding on the County. Acting on that new view, the County’s Board of Supervisors refused several of LACERA’s 2018 and, again, 2021 requests to create new job classifications or raise salaries for information technology, management, and legal positions, approving some requests only at reduced salary levels or denying them outright based on internal alignment with comparable County classifications.

In October 2021, LACERA sought declaratory relief and a writ of mandate compelling the County to implement its classification and salary decisions. The Los Angeles County Superior Court denied relief, following the Court of Appeal’s earlier decision in Westly v. Board of Administration (2003) 105 Cal.App.4th 1095, which had construed a retirement board’s constitutional “plenary authority” over “administration of the system” narrowly, as reaching only fund management and benefit delivery, not staff classification or compensation. The trial court likewise held that CERL’s requirement that retirement system staff “be included in the salary ordinance” adopted by the county did not impose a ministerial duty on the Board of Supervisors to simply adopt whatever salary LACERA proposed.

The Court of Appeal reversed, declining to follow Westly. It read the state constitution’s grant of “plenary authority” broadly enough to give retirement boards complete control over classification and compensation for their own staff, and read CERL’s salary-ordinance-inclusion language as imposing a mandatory duty on the County to adopt LACERA’s salary decisions. (Los Angeles County Employees Retirement Assn. v. County of Los Angeles (2024) 102 Cal.App.5th 1167.) The California Supreme Court granted review to resolve the resulting conflict with Westly.

In the case of Los Angeles County Employees Retirement Association v. County of Los Angeles, No. S286264 (Cal. Sup. Ct., August 2026) — the California Supreme Court reversed the judgment of the Court of Appeal, restoring the trial court’s judgment denying LACERA’s petition.

Writing for the majority, Justice Corrigan held that Westly’s narrower construction of California Constitution article XVI, section 17 (added by Proposition 162, the 1992 California Pension Protection Act) was correct. Reviewing the constitutional text as a whole, the Court explained that section 17’s grant of “plenary authority” over “administration of the system” is defined and limited by the eight subdivisions that follow it, all of which concern investment management, actuarial services, and the delivery of benefits to members and beneficiaries — not staff compensation. The Court found this reading confirmed by Proposition 162’s ballot materials, which framed the initiative almost entirely around preventing the state from “raiding” or “looting” pension fund assets to balance budgets, with no indication voters intended to shift classification and salary authority away from county governing bodies. The Legislative Analyst’s own impartial summary described the measure as giving retirement boards “complete authority for administration of the system’s assets,” language the Court found materially narrower than the sweeping personnel authority LACERA claimed.

The Court also held its interpretation was necessary to harmonize section 17 with the state constitution’s home rule provisions, which give county governing bodies, including charter counties like Los Angeles, authority to fix the number, compensation, and terms of employment for county employees. Because CERL itself defines retirement system staff as “county employees” whose compensation must be included in the county’s salary ordinance, and because no case had ever held otherwise, the Court found LACERA’s broader reading would work an unacknowledged partial repeal of the home rule provisions, a result courts should avoid absent a clear, irreconcilable conflict. The Court found this conclusion consistent with its own recent decision in Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn. (2020) 9 Cal.5th 1032, which had similarly read a retirement board’s “plenary authority” as bounded by the legislative design Congress set out in CERL rather than as license to depart from it.

Turning to the statutory question, the Court held Government Code section 31522.1 — which authorizes retirement boards to “appoint” needed staff hired from county civil service lists, while directing that such staff “shall be county employees” and “shall be included in the salary ordinance” the county adopts — does not impose a mandatory duty on county boards of supervisors to adopt whatever classification or salary a retirement board recommends. The Court found the statute’s plain text supported only a narrower, undisputed duty: that the county’s salary ordinance must budgetarily include retirement system staff positions at all, not that it must adopt the specific salary figures the retirement board proposes. Because setting compensation for civil service employees has long been treated as a discretionary, legislative act reserved to a county’s governing body, and because nothing in section 31522.1’s text or history clearly displaced that arrangement, the Court declined to read a ministerial duty into the statute’s use of the word “shall.” The Court did not foreclose all judicial recourse, however, noting county salary and classification decisions remain reviewable for abuse of discretion, and a writ of mandate may still issue if a county unreasonably delays or withholds action on a retirement board’s recommendations altogether.

Justice Groban’s dissent, joined by Justices Liu and Evans, argued the majority’s reading disregarded roughly four decades of consistent practice in which the County itself acknowledged LACERA’s authority over its own staff’s classification and compensation, including the County’s own 1996 acquiescence in outside counsel’s opinion to that effect. The majority responded to this history directly, concluding the record did not support characterizing that practice as a uniform, decades-long “shared understanding,” and that even a consistent past practice could not itself override the constitutional and statutory text the Court found controlling.

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CHP Officer’s Dishonesty Dismissal Reduced to One-Year Suspension

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Nathaniel Partridge, a California Highway Patrol (CHP) officer since 2006 assigned to the East Los Angeles office, regularly worked overtime shifts through the Maintenance Zone Enhanced Enforcement Program (MAZEEP), under which Caltrans reimburses the CHP for traffic-enforcement services on highway maintenance projects. Under a standard operating procedure the office adopted in 2012, an officer released early from a MAZEEP detail could still be paid for the full scheduled shift, but only if the officer remained on standby at the station rather than going home. Partridge knew the policy but believed, based on common office practice and a since-retired lieutenant’s own understanding, that going home after early release was tolerated as long as an officer could return if called back.

On September 17, 2017, Partridge’s MAZEEP assignment ended at 10:20 a.m., roughly four hours before its scheduled 2:30 p.m. end time. Partridge returned his patrol vehicle, changed out of uniform, and drove the 35 miles to his home rather than remaining at the station. He was never called back. He nonetheless submitted time records claiming the full 10 hours of scheduled overtime, receiving $288.98 in pay for roughly three hours and 45 minutes he had not worked or remained available for. A 2019 MAZEEP program audit also found that on eight separate occasions in 2017 and 2018, Partridge had failed to record the time he returned his patrol vehicle on a separate vehicle-checkout form, though the CHP’s own investigation did not tie those omissions to any additional false overtime claims. Partridge admitted the September 2017 conduct during the investigation, telling investigators, “I took the chance to go home and would fall on the consequence if I was called back.”

The CHP dismissed Partridge in February 2020 for inexcusable neglect of duty, dishonesty, misuse of state property, violating the state’s incompatible-activities statute, and other failure of good behavior, all grounds for discipline under Government Code section 19572. Partridge appealed to the State Personnel Board (SPB). An administrative law judge (ALJ) found Partridge’s incomplete vehicle forms constituted inexcusable neglect of duty, but credited Partridge’s testimony that he did not intend to deceive the CHP about his September 2017 overtime claim, dismissed the remaining charges, and reduced the penalty to a one-month suspension. The SPB itself rejected the ALJ’s credibility findings on the dishonesty question, concluding Partridge knowingly claimed pay for hours he had not worked and was not entitled to, and sustained all the charged grounds for discipline. Applying the multi-factor test from Skelly v. State Personnel Board for assessing an appropriate penalty, however, the SPB found dismissal disproportionate given the isolated nature of the incident and Partridge’s 16 years of discipline-free service, and imposed a one-year unpaid suspension instead.

The CHP petitioned the Los Angeles County Superior Court for a writ of mandate under Code of Civil Procedure section 1094.5, seeking to vacate the SPB’s penalty and reinstate the dismissal. The trial court denied the petition, finding the SPB had not abused its discretion in concluding that a single, if serious, act of dishonesty did not necessarily establish a propensity for future dishonesty warranting termination. The CHP appealed.

In the published case of California Highway Patrol v. California State Personnel Board, No. B336135 (Cal. Ct. App., 2d Dist., Div. 8, August 2026) — the Court of Appeal affirmed the trial court’s judgment denying the CHP’s petition for writ of mandate. This opinion was originally filed on July 29, 2026 and was not initially certified for publication; on August 5, 2026, the Second Appellate District, Division Eight, ordered it published in the Official Reports with no change in the judgment. It is now citable authority.

Writing for a unanimous panel, Presiding Justice Stratton explained that a court reviewing an administrative agency’s choice of penalty may not substitute its own judgment for the agency’s, and may disturb the penalty only in the exceptional case where reasonable minds could not differ on the appropriate discipline, citing Skelly v. State Personnel Board (1975) 15 Cal.3d 194 and Cate v. State Personnel Board (2012) 204 Cal.App.4th 270. The panel rejected the CHP’s central argument that Partridge’s dishonesty alone mandated dismissal as a matter of law, explaining that while termination is an available and often appropriate penalty for employee dishonesty, no California authority requires it in every case. The court distinguished Kolender v. San Diego County Civil Service Commission (2005) 132 Cal.App.4th 716, which the CHP relied on for the proposition that dishonesty reflects an ongoing character trait rather than an isolated event, on its facts: the officer in Kolender had lied to cover up a fellow deputy’s physical abuse of a jail inmate and maintained that lie until investigators independently uncovered it, conduct the panel found categorically different from Partridge’s single, ultimately admitted overtime claim.

The panel likewise rejected the CHP’s argument that the SPB improperly minimized Partridge’s misconduct by comparing it to other officers dismissed for more extensive, repeated MAZEEP overtime fraud. The court explained the SPB used those comparisons only to illustrate why Partridge’s isolated incident did not itself establish a disposition toward dishonesty, not to suggest that repeat offenders set the baseline for termination. The panel found the SPB’s broader weighing of the Skelly factors — harm to public service, the circumstances of the misconduct, and the likelihood of recurrence — was well within its discretion, noting Partridge’s clean 16-year disciplinary record and positive performance history were legitimate considerations, not, as the CHP argued, an improper attempt to offset dishonesty against unrelated good conduct. The court found no fault in the SPB’s related conclusion that Partridge’s separate failures to log his patrol vehicle’s return time on eight occasions reflected carelessness rather than a deliberate scheme to conceal his early departures, since overtime pay was calculated from a different form entirely and none of the omissions was tied to an actual false claim.

The panel also addressed, and rejected, the CHP’s suggestion that upholding the SPB’s decision would perversely reward officers who limit the scope of their misconduct relative to more egregious violators. The court held this policy argument did not establish an abuse of discretion in the specific penalty selected here, citing County of Siskiyou v. State Personnel Board (2010) 188 Cal.App.4th 1606, which likewise held dismissal is not required in every dishonesty case. The panel acknowledged the trial court’s separate observation that Partridge’s dishonesty finding will follow him for the remainder of his career under Brady v. Maryland (1963) 373 U.S. 83, requiring disclosure to defense counsel in any future case where he is a witness, but agreed that consequence did not by itself compel dismissal rather than a severe suspension. Concluding that reasonable minds could differ — and, indeed, had differed, given the ALJ’s initial one-month recommendation, the SPB’s ultimate one-year suspension, and the CHP’s request for outright dismissal — the panel held this was not the exceptional case warranting judicial override of the agency’s chosen penalty, and affirmed the judgment, awarding costs on appeal to the SPB and Partridge.

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OLC Opinion: ADA’s State “Integration Mandate” Not Required by Law

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The Department of Justice’s Office of Legal Counsel (OLC) has issued a slip opinion concluding that neither Section 504 of the Rehabilitation Act nor Title II of the Americans with Disabilities Act (ADA) requires states to treat patients with severe mental illness or disabilities in the “most integrated setting” appropriate to their needs — and that federal regulations imposing that requirement, in place in some form since 1978, exceed what Congress actually authorized. The opinion, signed by Principal Deputy Assistant Attorney General Lanora C. Pettit, was written for the White House Counsel’s Office in response to a formal request for OLC’s legal views on the so-called “integration mandate.”

OLC opinions are formal legal advice the department’s Office of Legal Counsel gives to the President and executive agencies; they bind Executive Branch practice going forward but are not court rulings and do not themselves change what a federal court would hold. This opinion answers three questions the White House Counsel’s Office posed: whether the Supreme Court’s 1999 decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, already settled that the statutes impose an integration mandate; if not, whether Congress could constitutionally impose one; and whether Congress in fact did so. OLC answers the first and third questions no, and concludes that because there is no statutory mandate to interpret, it does not need to resolve the constitutional question directly — though it says the serious constitutional doubts such a mandate would raise reinforce its reading of the statutory text.

The opinion’s reading of Olmstead is narrower than how the decision is understood by most federal courts. Olmstead itself was fractured: a five-justice majority held that “unjustified institutional isolation of persons with disabilities is a form of discrimination” under Title II, but only a four-justice plurality, led by Justice Ginsburg, went on to say that community-based treatment becomes mandatory once a state’s own treatment professionals find it appropriate, the patient does not object, and it can reasonably be accommodated given the state’s resources. Because that three-factor test never commanded a majority, OLC applies the Supreme Court’s “narrowest grounds” rule from Marks v. United States to conclude Olmstead’s binding holding is limited to the bare proposition that unjustified institutionalization can be discriminatory — without settling what counts as adequate justification for treating a patient in an institution. OLC acknowledges this view cuts against how most federal circuit courts have treated Olmstead’s plurality language as binding, but says that disagreement is the kind of “contested legal question” the political branches and courts are meant to work out over time.

Turning to the statutory text, the opinion argues “discrimination” in Section 504 and Title II, understood by its ordinary meaning when each law was passed, means treating similarly situated people differently without adequate justification — not an affirmative duty to provide services in a particular setting. It points to Title III of the ADA, which explicitly requires public accommodations to operate in “the most integrated setting appropriate,” and argues Title II’s omission of that same language was intentional. Under OLC’s reading, a state does not discriminate by treating a patient with mental illness in an institution so long as it has any non-arbitrary reason for doing so — including resource and space constraints, safety concerns, or the patient’s own medical needs — and disability discrimination occurs only when disability itself, rather than the needs disability creates, is the sole basis for the treatment setting chosen.

The opinion separately walks through why reading an integration mandate into the statutes would raise serious constitutional problems under three possible sources of congressional power: Section 5 of the Fourteenth Amendment, which the opinion says would require a legislative record showing a pattern of irrational state discrimination that a universal integration mandate does not appear to have; the Interstate Commerce Clause, which the opinion argues does not reach a purely in-state choice about where to treat a patient; and the Spending Clause, under which conditions on federal funds must be stated unambiguously, which OLC says neither statute does with respect to treatment setting. Because of these doubts, OLC applies the constitutional avoidance canon to reinforce its narrower statutory reading.

The opinion’s bottom line is that the Department of Health and Human Services’ regulation at 45 C.F.R. § 84.76(b) and the Department of Justice’s regulation at 28 C.F.R. § 35.130(d) — the regulations that first created the “most integrated setting” requirement and that the Olmstead Court leaned on in reaching its own holding — exceed the authority Congress gave those agencies, since Section 504 authorizes only regulations “necessary to carry out” the antidiscrimination provision and a general integration requirement is not necessary to eliminate discrimination as OLC defines it. The opinion recommends the regulations be rescinded, along with related sub-regulatory guidance the Department of Justice has issued interpreting Olmstead broadly, on the ground that such guidance never had the force of law in the first place. The opinion also notes that DOJ’s Civil Rights Division has for two decades used the integration mandate and Olmstead to secure consent decrees and settlement agreements committing roughly a dozen states to specific deinstitutionalization benchmarks — agreements this opinion does not purport to unwind, but whose legal foundation it calls into question going forward.

The opinion is explicit about its own limits: it addresses only patients with severe mental illness or developmental disabilities of the kind at issue in Olmstead, expressly reserving how its reasoning would apply to physical disabilities, and it states it is not questioning the general constitutionality of Section 504 or Title II outside the integration-mandate context. It also acknowledges, more than once, that its interpretation departs from the near-uniform practice of federal appellate courts and from HHS and DOJ’s own consistent position since the late 1970s, framing that departure as the product of an independent legal analysis conducted under current Supreme Court methodology (including 2024’s Loper Bright Enterprises v. Raimondo, which ended judicial deference to agency interpretations of ambiguous statutes) rather than as a rejection of Olmstead itself.

This summary is provided for general informational purposes only and does not constitute legal advice. An OLC opinion states the Executive Branch’s own legal position; it does not overrule Olmstead v. L.C. or the federal appellate decisions applying it, and any change to existing regulations, consent decrees, or DOJ enforcement practice would require separate agency or judicial action. Readers should consult the full opinion for its complete legal reasoning and qualifications.

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Top Court Rules Drugmaker Has No Duty to Speed Safer Drug to Market

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Gilead Sciences, Inc. developed tenofovir disoproxil fumarate (TDF), an HIV antiretroviral medication marketed as Viread and used in numerous combination HIV therapies, obtaining FDA approval in October 2001. While TDF was still in trials, Gilead began investigating a related compound, tenofovir alafenamide fumarate (TAF), as a possible backup. A brief 2001 phase I/II trial — 30 subjects over two weeks — suggested TAF could match TDF’s antiviral effect at a much lower dose, potentially with less kidney, bone, and tooth toxicity. In 2004, Gilead announced it was discontinuing TAF development, stating TAF’s profile did not appear meaningfully different from TDF’s. Plaintiffs, a large group of TDF users who allege they developed renal, bone, or tooth injuries from the drug, contend Gilead’s stated reason was pretextual and that Gilead actually shelved TAF to protect TDF sales and later timed TAF’s eventual release to extend patent-driven profits across both drugs. Gilead disputes that it knew TAF was safer at the time and says it resumed TAF development in 2010 to address bone and kidney concerns in an aging HIV population, ultimately winning FDA approval for TAF in November 2015. Plaintiffs do not contend TDF itself is defective, and they acknowledge some patients still prefer TDF to TAF; their theory is that Gilead’s delay in developing and commercializing TAF was itself negligent and caused their injuries.

By the time Gilead moved for summary judgment, only negligence and fraudulent concealment claims remained. The San Francisco County Superior Court denied summary judgment on both. Gilead petitioned for a writ of mandate, and the Court of Appeal granted the petition as to the fraudulent concealment claim but left the negligence claim intact, holding in a published 2024 decision that a drug manufacturer’s duty of reasonable care can, in some circumstances, extend beyond the duty to avoid marketing a defective product — specifically, that a manufacturer who has invented a drug it knows to be safer and at least equally effective than one it is currently selling may owe a duty of reasonable care regarding when to commercialize it. (Gilead Tenofovir Cases (2024) 98 Cal.App.5th 911.) The Court of Appeal further held the foreseeability and public-policy factors from Rowland v. Christian did not support an exception to that duty on the record before it.

In the case of Gilead Tenofovir Cases, No. S283862 (Cal. Sup. Ct., August 2026) — the California Supreme Court reversed the judgment of the Court of Appeal and remanded with directions to grant summary judgment for Gilead on all remaining causes of action. Chief Justice Guerrero and Justice Kruger (joined by Justices Corrigan and Desautels) each filed separate concurring opinions; Justice Evans filed a dissent

Writing for the majority, Justice Groban expressed “significant doubt” that California law recognizes a manufacturer’s negligence duty independent of a product defect at all, noting decades of precedent tying a manufacturer’s duty under Civil Code section 1714 to the duty to design, manufacture, and market products free from defects, citing Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465. But the majority found it unnecessary to resolve that threshold question. Even assuming a broader duty could exist, the Court held that the foreseeability and public-policy factors from Rowland v. Christian (1968) 69 Cal.2d 108 compel an exception to it here, applied “categorically” rather than to Gilead’s specific case, consistent with Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993.

On foreseeability, the majority held a manufacturer generally cannot reliably know, based only on early-phase clinical data, that an alternative drug is in fact safer than and as effective as an existing one; the Food, Drug, and Cosmetic Act itself generally requires two adequate, well-controlled studies (typically phase III trials) before FDA approval, and only about 25 to 30 percent of drugs that reach phase III succeed. Because that comparative knowledge is essentially unattainable during the early development stages at issue here, the Court held harm to existing-drug users was not reasonably foreseeable from a decision to pause a still-unproven alternative, and separately found the causal chain from that decision to any eventual injury too attenuated, given the intervening, independent, and uncertain decisions of regulators, physicians, and patients that stand between a development decision and any patient’s actual treatment.

On the public-policy factors, the majority found moral blame difficult to assess categorically, since manufacturers may delay developing a backup drug for many morally neutral reasons, including allocating resources toward diseases with no existing treatment; found the policy of preventing future harm cut both ways, since a duty could speed development of safer alternatives but could equally distort research priorities, discourage manufacturers from investigating backup candidates at all, or push manufacturers to delay releasing improved drugs until every conceivable alternative has been fully vetted; and found the burden on manufacturers substantial, since phase III trials alone can cost tens of millions of dollars and take years, with no guarantee of eventual approval. The Court noted Gilead’s own estimate that completing TAF’s remaining development would cost roughly $100 million. Taken together, the majority held drug manufacturers owe no duty of care, when deciding whether and when to develop and commercialize an allegedly safer alternative, to users of a current, concededly nondefective drug — while emphasizing the ruling does not immunize manufacturers from ordinary defect, failure-to-warn, or fraud-based claims.

Chief Justice Guerrero concurred in the result but not the reasoning, arguing the majority should not have assumed a broader duty of care exists at all. In her view, decades of settled products liability law establish that a defect is an essential element of any negligence claim against a manufacturer, citing Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, and because plaintiffs expressly disclaimed any allegation that TDF was defective, their claim should have failed on that threshold ground without needing to reach Rowland’s foreseeability or policy factors at all. Justice Kruger, joined by Justices Corrigan and Desautels, separately concurred to elaborate on aspects of the majority’s Rowland analysis. Justice Evans dissented, arguing the majority’s application of Rowland effectively guaranteed the outcome by treating the manufacturer’s own alleged profit motive and superior knowledge as insufficient to establish moral blame, and characterizing the majority’s holding as granting drug manufacturers sweeping immunity from liability for delay-driven development decisions.

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