Skip to Content (Press Enter)

Skip to Nav (Press Enter)


Subscribe to California Appellate Tracker

Thank you for your desire to subscribe to Severson & Werson’s Appellate Tracker Weblog. In order to subscribe, you must provide a valid name and e-mail address. This too will be retained on our server. When you push the “subscribe button”, we will send an electronic mail to the address that you provided asking you to confirm your subscription to our Weblog. By pushing the “subscribe button”, you represent and warrant that you are over the age of 18 years old, are the owner/authorized user of that e-mail address, and are entitled to receive e-mails at that address. Our weblog will retain your name and e-mail address on its server, or the server of its web host. However, we won’t share any of this information with anyone except the Firm’s employees and contractors, except under certain extraordinary circumstances described on our Privacy Policy and (About The Consumer Finance Blog/About the Appellate Tracker Weblog) Page. NOTICE AND AGREEMENT REGARDING E-MAILS AND CALLS/TEXT MESSAGES TO LAND-LINE AND WIRELESS TELEPHONES: By providing your contact information and confirming your subscription in response to the initial e-mail that we send you, you agree to receive e-mail messages from Severson & Werson from time-to-time and understand and agree that such messages are or may be sent by means of automated dialing technology. If you have your email forwarded to other electronic media, including text messages and cellular telephone by way of VoIP, internet, social media, or otherwise, you agree to receive my messages in that way. This may result in charges to you. Your agreement and consent also extend to any other agents, affiliates, or entities to whom our communications are forwarded. You agree that you will notify Severson & Werson in writing if you revoke this agreement and that your revocation will not be effective until you notify Severson & Werson in writing. You understand and agree that you will afford Severson & Werson a reasonable time to unsubscribe you from the website, that the ability to do so depends on Severson & Werson’s press of business and access to the weblog, and that you may still receive one or more emails or communications from weblog until we are able to unsubscribe you.

Contrary to prior Second Circuit rulings, this decision holds that a plaintiff alleging retaliation in violation of the Sarbanes-Oxley Act's provision (18 U. S. C. §1514A(a)) prohibiting retaliation against employees for engaging in protected whistleblowing activity need not plead or prove that the retaliating employer acted with retaliatory intent.  The employee's prima facie case need merely show that his protected… Read More

Federal statutes are presumed to apply only domestically--within the US's territorial jurisdiction. The presumption is applied in a two-step framework.  First, the court asks if Congress has affirmatively and unmistakably instructed that the provision at issue should apply to foreign conduct. Second, if Congress has not done so, the court asks whether the suit seeks to apply the statute domestically… Read More

This decision holds that some but not all claims for retaliation for whistleblowing activities, in violation of Lab. Code 1102.5, are not intentional acts for which insurance defense and indemnity is barred by Ins. Code 533.  In particular, under Lab. Code 1102.5(c), an employee is protected if he refuses to perform work duties if doing so is actually (not just… Read More

While Lab. Code 1102.5 protects whistleblowers who are employees of a city or other governmental agency, the section does not apply to or protect elected governmental officials, like plaintiff who was a city treasurer.  By contrast, Lab. Code 3351 defines "employee" for purposes of the Workers Compensation Act to include all elected, paid public officers.  So the Workers Compensation Act… Read More

California's statute forbidding retaliation against employee whistleblowers protects an employee who discloses to supervisors or public prosecutors or regulators information about what he believes are his employer's violations of law--even if the recipient of the information is already aware of the reported violations.  Section 1102.5 protects "disclosures," a term broad enough to encompass emphasizing already known facts.  The term “disclosure”… Read More

Reversing summary judgment on plaintiff's whistleblower retaliation claims under Lab. Code 1102.5, this decision holds that (a) the employee's reports to his supervisor and to the federal contracting officer that he thought he was being asked to prepare reports that violated NEPA was activity protected by section 1102.5--even though plaintiff claimed that the persons he reported to were wrong-doers. Read More

(The Federal Tort Claim Act's discretionary function immunity did not shield the United States from liability for the alleged conduct of its employees in maliciously instigating false state court criminal charges against plaintiff (in retaliation for her whistleblowing).  The employees' alleged conduct in knowingly lying under oath, tampering with witnesses, or fabricating evidence to support the false criminal charges had… Read More

A summary judgment in favor of defendant in this whistleblower action is reversed because the defendant brought the motion using the McDonnell Douglas test rather than the statutory test under Lab. Code 1102.6, as explicated in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703.  The decision also holds that the same Lawson test applies under Gov. Code 8547.10,… Read More

Lab. Code 1102.6 prescribes the burdens of proof on a claim for retaliation against a whistleblower in violation of Lab. Code 1102.5.  First, the employee-whistleblower bears the burden of proving by a preponderance of the evidence that retaliation against him for whistleblowing was a contributing factor in the employer’s taking adverse employment action against him.  Then, the employer bears the… Read More

Lacy, an employee, filed a complaint with the state Department of Labor claiming her employer, Crestwood, had retaliated against her in violation of Lab. Code 98.7 for complaining about having been assaulted at work.  The DLSE commenced an investigation of the complaint.  Meanwhile, Crestwood filed a petition to compel arbitration under the arbitration clause in Lacy's employment contract.  The trial… Read More

In a case involving a retaliatory firing of a deputy fire marshal, the appellate court affirms the judgment finding the defendant city liable, but reverses the award of $2 million for past noneconomic damages and $1.5 million in future noneconomic damages as excessive given the slight evidence of emotional distress, the fact that plaintiff found other employment, the fact that… Read More

An employee who had complained about his supervisor, was terminated and then claimed retaliation for his whistleblowing was not required to exhuast his administrative remedies before the employer's human relations commission because the commission's decision would have been subject to review and change by the supervisor in consultation with the mayor.  To have the personally involved supervisor (who had been… Read More