Governor Vetoes Expansion of Medical Leave

On Sunday, October 11, the Governor vetoed SB 406, which would have expanded the California Family Rights Act (CFRA). SB 406 would have allowed an employee to use CFRA leave to care for a sibling, grandparent, grandchild, domestic partner, or parent-in-law with a serious health condition. The current law does not include these family members. SB 406 would also allow parents working for the same employer to each take 12 weeks of leave for the birth of a child. The CFRA only allows parents to take a combined 12 week leave.

The Governor's veto message stated that he was open to allowing workers to take leave for additional family members. The bill failed, however, because it could require employers to provide up to 24 weeks on family leave in a 12 month period. Had SB 406 limited the leave period to a total of 12 weeks under both the CFRA and FMLA, it is likely it would have passed.

Anti-SLAPP Motions: A Hurdle for Some Plaintiffs

Workers suing a public employer must know about a possible hurdle: Anti-SLAPP motions. In Park v. Board of Trustees of California University (2015) (Park), a California appeals court used an “anti-SLAPP” law in favor of a public employer. SLAPP stands for “Strategic Lawsuit Against Public Participation.” SLAPPs are used to scare and silence critics.

California has made “anti-SLAPP” laws that allow a defendant stop a SLAPP suit dead in its tracks if (1) the suit was based on free speech about a public issue or made during official proceedings authorized by law, and (2) the plaintiff cannot prove that it would likely win. Thus, an “anti-SLAPP motion” saves a defendant from the expenses of a long lawsuit. In a sense, one can think of a SLAPP defendant as the “David” to plaintiff’s “Goliath.” But what happens when the roles are reversed? What happens when Goliath “anti-SLAPPs” David?

In Park, a teacher sued the California State University system for discrimination. In response, CSU “anti-SLAPPed” Park, saying that Park’s lawsuit came from protected speech made during its tenure review process. The Court of Appeal agreed and found that that all of Park’s claims were based on “protected speech activity” made during legally authorized personnel procedures for public workers.

Park illustrates where an anti-SLAPP motion is used to disrupt a plaintiff’s suit against a public employer. Thus, where a public worker’s suit might implicate protected public speech, the worker must carefully craft their legal argument and brace against a potential anti-SLAPP motion.

California Supreme Court Grants Review of Mastagni Holstedt, APC Workers Compensation Case

The California Supreme Court agreed to hear oral arguments on one of Mastagni Holstedt, APC's workers compensation cases. At issue in the case is whether a permanent peace officer is entitled to the maximum temporary disability benefit as a result of an on the job injury.

Officer John Larkin was injured in a motor vehicle accident in November of 2008 while employed as an active police officer with the City of Marysville. He received benefits under Labor code section 4850 which expired. He then received temporary disability benefits. The temporary disability benefits are paid at two thirds the weekly earning rate. Officer Larkin's weekly earnings were $1008 resulting in a $671 weekly temporary disability benefits rate.

However, Labor Code section 4458.2 states temporary disability benefits are paid at the maximum statutory rate for eligible peace officers. The maximum rate in 2008, the time of the case, was $916 per week. Labor Code section 4458.2 makes reference to Labor Code section 3362 which defines who is eligible for the maximum benefit. Labor Code section 3362 states that every person registered as an active police officer shall be considered an employee of the municipality he or she works for.

Labor Code section 3362 has evolved over time. Originally the language included only men and specified the peace officer had to be a volunteer to receive the maximum benefit. However, the California State Legislature in 1989 modernized the statute including both genders and removing the word "volunteer." This evidences the intent of the legislature to provide maximum benefits to all peace officers.

Officer Larkin challenged the lower compensation rate in front of the Workers' Compensation Appeals Board. He argued he was entitled to the full $916 per week rather than the $671 per week. The Workers' Compensation Appeals Board argued that since Labor Code section 3362 only applied to volunteer peace officers, Officer Larkin was not entitled to the maximum temporary disability benefit. On appeal, the California Court of Appeal for the Third District upheld the Workers' Compensation Appeals Board determination.

Mastagni Holstedt, APC appealed the decision to the California Supreme Court. In its briefs, the firm argues all officers, regardless of status, are entitled to maximum benefits. This is the clear language of the statute which must be followed by the court system. By reading extra terms into the statute, the Court of Appeal created an absurd result which harms peace officers across the state.

Oral argument for the case will be held on September 2, 2015 at 9 AM in San Francisco. The case will be argued by Mastagni Holstedt, APC attorney Brian A. Dixon. Mastagni Holstedt, APC attorney Gregory G. Gomez assisted in drafting the briefing materials for the case.

Court of Appeal Gives Retroactive Effect to Firefighter Injury Presumption

The California Court of Appeal ruled statutory changes to workers' compensation injury presumptions apply to cases pending prior to the change in the statute. In doing so, the Court of Appeal overruled the Workers' Compensation Appeals Board ("WCAB") who refused to apply the presumption to a pending case. This decision could affect the presumptions involved in many workers compensation cases.

The facts of Lozano v. W.C.A.B. are tragic. William Lozano worked as a firefighter for a Department of Defense installation. Lozano was diagnosed with stomach cancer and succumbed to the disease in September of 2007. In November of 2009, Lozano's wife and two young children filed a workers compensation claim alleging the stomach cancer was work related.

On January 1, 2009 the legislature amended the Labor Code so that firefighters like Lozano could take advantage of the cancer presumption. This means the family would not need to prove Lozano's employment caused stomach cancer. Rather, the court would assume the cancer was from his employment and the employer would have to prove the cancer was not job related.

The Agreed Medical Examiner ("AME") concluded Lozano was exposed to carcinogens as part of his work activities. However, he could not conclusively say the carcinogens caused Lozano's cancer. However, if the firefighter cancer presumption applied to Lozano's case, the AME concluded the cancer should be presumed as work related.

The WCAB determined the presumption did not apply to Lozano's case. The WCAB noted Lozano was not a qualifying firefighter under the statute at the time of his death. The WCAB refused to apply the statutory change retroactively because the Legislature did not provide for retroactive application in the statute.

The Second District Court of Appeal reversed the WCAB's decision and held the presumption did apply to Lozano's claim. In general new statutes operate prospectively unless the Legislature clearly indicates otherwise. However, this general rule does not apply to new statutes that simply alter procedural or evidentiary statutes to trials occurring after enactment. Thus, if a new statute alters substantive legal rights, like who is liable for an injury, that statute cannot be applied retroactively. But, if the statute only alters procedural rights, like who has the burden of proof, the statute can be applied retroactively.

Here, the presumption test does not change who is liable for the injury, but rather who has the burden of producing evidence. Making the cancer presumption available to firefighters like Lozano only addresses the procedure to follow, not the substantive legal rights. Thus, the Court of Appeal overruled the WCAB and allowed Lozano's heirs to retroactively apply the cancer presumption.

This case should help a great number of public safety employees in the future. The instant statute only dealt with firefighters working at Department of Defense facilities. But the court's logic could be applied to any new statute which changes the evidentiary burdens for workers compensation claims. Thus, when the legislature changes the statute to help more people, any pending claims can take advantage of that new rule.

Sacramento Business Journal Interviews David P. Mastagni

The Sacramento Business Journal interviewed leaders from the top Sacramento firms to discuss what litigators see as challenges in the profession.  The article noted:

According to Mastagni Holstedt managing partner David Mastagni, the biggest challenge facing litigators is "Staying on game (from) one litigation setting to another without breaks while being able to shift from one set of facts and laws to another amidst being able to change forums and jurisdictions."

The Journal recently listed Mastagni Holstedt as the top litigation firm.

Mastagni Holstedt Ranked #1 Litigation Firm by Sacramento Business Journal

The Sacramento Business Journal ranked Mastagni Holstedt the #1 litigation law firm.  The list ranks the top twenty-five law firms in Sacramento metro by number of litigators.

According to Mastagni Holstedt Founder, David P. Mastagni, "We are very pleased to have the growth and success of our litigation practices recognized in this way.  As the firm grows in Southern California, it is important to us to remain the leader in Sacramento litigating on behalf of employees, public safety labor associations, and individual plaintiffs, as well as class and mass actions."

State Legislature Approves Workers' Compensation Bills Benefiting Peace Officers

Both houses of the state legislature passed two workers' compensation bills benefiting peace officers. The legislature passed AB 2052, expanding the classes of peace officers eligible for presumptions. Also, the legislature passed AB 2378, declaring that salary continuation payments to peace officers under Labor Code 4850 do not count towards the two-year cap on temporary disability benefits. This would allow for two full years of temporary disability payments to peace officers in addition to the one year of 4850 benefits. The bills will now go to Governor Jerry Brown to sign, approve without signing, or veto.