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.

Mastagni Attorneys Score a Victory for Common Sense and Fairness

In a recent decision, Daniel Young v. Workers' Compensation Appeals Board and County of Butte, the Third District Court of Appeals ("Court") held that an injury sustained by an employee as part of a regimen to satisfy employer physical fitness expectations constitutes a compensable industrial injury under California Labor Code section 3600(a)(9). Mastagni attorney Craig Johnsen argued the appeal before the Court. Mr. Johnsen and Matthew Peng collaborated on the appellate brief. Richard Weyuker of Cuneo, Ward, Black, & Missler argued on behalf of the employer. The case has been certified for publication.

Facts

Sergeant Daniel Young began his employment with the Butte County Sheriff's Department in 1995. In 1999, he was promoted to correctional sergeant. In 2004, the Department issued an order requiring all correctional officers, including correctional sergeants, to "maintain themselves in good physical condition so that they can handle the strenuous physical contacts often required of a law enforcement officer."

Sergeant Young took the requirement seriously, and he engaged in a regular physical fitness regimen during his off-duty hours. On January 9, 2012, Sergeant Young was performing his customary warm-up routine prior to his workout, which included jumping jacks. During one of the jumping jacks, Sergeant Young came down and experienced an extreme stabbing pain in his left knee. When Sergeant Young reported the injury, the Department took the position that the injury was not compensable under workers' compensation because it did not occur while Sergeant Young was engaged in his usual duties as a correctional sergeant.

At the trial court level, the workers' compensation judge disagreed with the Departments' position, concluding that Sergeant Young's injury was compensable under the circumstances. The Department requested reconsideration by the Workers' Compensation Appeals Board ("WCAB"). The WCAB sided with the Department and found Sergeant Young's injury was not compensable. Our appeal to the Court followed the WCAB ruling.

District Court of Appeal Analysis and Holding

In analyzing the facts of the case, the court relied upon the two-pronged Ezzy test. Under that test, the "reasonable expectancy" of employment is satisfied where: (1) the employee subjectively believes participation in the injury-producing event is expected by the employer; and, (2) the employee's belief is objectively reasonable.

The Court recognized that the first prong of the test is easily satisfied. Typically, subjective belief is established simply through the credible testimony of the injured employee. Since Sergeant Young had competently testified at trial as to his subjective belief, the Court placed no focus on that element, finding Sergeant Young's testimony "more than sufficient to satisfy that prong."

In asserting that Sergeant Young's case failed to satisfy the objective prong of the Ezzy test, the Department primarily relied on the argument that Sergeant Young's subjective belief that engaging in jumping jacks as part of a home exercise routine was not objectively reasonable because the belief was merely based upon a "general obligation" to maintain good physical fitness. The Court was not persuaded by the argument.

In dismissing the Department's argument, the Court pointed to the departmental order requiring correctional sergeants to maintain a state of good physical conditioning. The Court noted that the Department did not provide exercise opportunities during work hours, nor did the Department's directive offer any guidance as to what types of exercises and/or other physical activities would be considered appropriate in the furtherance of maintaining good physical condition. Further, the Court found it objectively reasonable that the Department would have expected Sergeant Young to perform a warm-up routine as part of his exercise program. Consequently, as the injury at issue satisfied both prongs of the Ezzy test, and there was substantial nexus between the Department's physical fitness requirement and Sergeant Young's specific off-duty activity which resulted in his knee injury, the Court ruled that the injury was compensable as an industrial injury.

Import of Court's Ruling

Although the Young decision applies specifically to a law enforcement employee, there are many other types of jobs that require workers to maintain an adequate level of physical fitness in order to satisfactorily perform necessary job functions. So, the ruling should have broad application in appropriate contexts. It is clearly in the employer's best interest for employees in any type of occupation or profession to make healthy life choices, which includes adequate exercise.

It should be noted that the Court's ruling may have been different had Sergeant Young been engaging in a more high risk activity, such as playing basketball, rollerblading, or kayaking when he was injured. But, since the Court observed that jumping jacks are generally considered to be a "traditional, low-risk and widely performed warm-up calisthenic", it had no difficulty finding the Young decision should not be interpreted to suggest that "anything goes" as long as the activity promotes fitness. In the end, common sense must prevail.