July 15, 2011
The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, July 13, 2011. The summary includes those civil cases in which (1) review has been granted (not including grant-and-transfers), (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.
City of Los Angeles v. Superior Court (Engineers & Architects Association), S192828—Review Granted—July 13, 2011
The questions presented concern a city’s refusal to arbitrate employee grievances over mandatory furloughs. The first issue is whether the courts or the arbitrator should determine the issue of arbitrability. The second issue is whether the Memoranda of Understanding (MOUs) between the city and its employees provide for arbitration of the decision to furlough employees. The third question is, assuming the MOUs provide for the arbitration of the city’s furlough decisions, whether the agreement to arbitrate such a decision is legally valid.
A union petitioned to compel arbitration of over 400 employee grievances arising out of city’s plan to furlough its employees. The trial court concluded the grievances were arbitrable. The Court of Appeal, Second District, Division Three, granted the City’s petition for writ of mandate. In a published decision, City of Los Angeles v. Superior Court (2011) 193 Cal.App.4th 1159, the court held that “[w]hile there are questions as to whether the issue of furloughs is grievable under the terms of the controlling [MOUs] [fn. omitted], we conclude that any agreement to arbitrate the issue of furloughs would constitute an improper delegation of discretionary policymaking power vested in the City Council.”
Iversen v. California Village Homeowners Association, S192763—Review Granted and Held—July 13, 2011
The court ordered briefing deferred pending decision in Seabright Ins. Co. v. U.S. Airways, Inc., S182508, which concerns the following issue: When an employee of an independent contractor sustains an on-the-job injury, can the hirer of the contractor be liable on the theory that the failure of the hirer to ensure the contractor’s compliance with a statute or regulation constituted (i) a breach of a non-delegable duty imposed by the statute or regulation and (ii) an “affirmative contribution” to the injury within the meaning of Hooker v. Dept. of Transp. (2002) 27 Cal.4th 198, 212, footnote 3 (“Such affirmative contribution need not always be in the form of actively directing a contractor or a contractor’s employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury”)?
Tverberg v. Fillner Construction, S192804—Review Granted and Held—July 13, 2011
Also pending decision in Seabright Ins. Co. v. U.S. Airways, Inc., S182508.
Review Denied (with dissenting justices)