Rhonique Green v. Bank of America , 634 F. App'x 188 ( 2015 )

FILED
NOT FOR PUBLICATION
DEC 18 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RHONIQUE GREEN and OLIVIA No. 13-56023
GIDDINGS, individually and on behalf of
all others similarly situated, D.C. No. 2:11-cv-04571-R-AGR
Plaintiffs - Appellants, AMENDED
MEMORANDUM*
v.
BANK OF AMERICA, N.A. and BANK
OF AMERICA CORPORATION,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted September 3, 2015**
Pasadena, California
Before: O’SCANNLAIN, TROTT, and BYBEE, Circuit Judges.
The facts and procedural posture of this case are known to the parties, and
we do not repeat them here. The district court dismissed plaintiffs’ complaint on
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
two alternative grounds. First, it held that California Wage Order 7-2001,
§ (14)(A), Cal. Code. Regs. tit. 8, § 11070(14)(A), which requires employers to
provide seats to their workers, is preempted by the National Bank Act, 12 U.S.C.
§ 1 et seq. (“NBA”). Second, it held that, even if Section 14(A) were not
preempted, plaintiffs failed to properly exhaust their administrative remedies as
required by California law. Plaintiffs-appellants argue the district court was wrong
on both grounds, and we agree. We therefore reverse the district court’s decision
and remand with direction that the case be reassigned to a new judge.
A. The NBA does not preempt California Wage Order Section 14(A)
The district court relied on conflict preemption. This species of preemption
occurs when state legislation significantly interferes with the purposes or function
of a federal law. English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990). In the
context of the NBA, we have explained the standard as: “whether the state law
prevent[s] or significantly interfere[s] with the national bank's exercise of its
powers.” Gutierrez v. Wells Fargo Bank, N.A., 704 F.3d 712, 722 (9th Cir. 2012)
(alterations in original) (citation omitted).
When we have held the NBA preempts state law, it has been because the
state law interfered with a national bank’s banking-related functions or operations.
See Bank of Am. v. City & Cty. of San Francisco, 309 F.3d 551, 562 (9th Cir. 2002)
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(state regulation of bank deposit fees); Rose v. Chase Bank U.S.A., N.A., 513 F.3d
1032, 1036-37 (9th Cir. 2008) (state regulation of disclosures about commercial
instruments); Wells Fargo Bank, N.A., v. Boutris, 419 F.3d 949 (9th Cir. 2005)
(state regulation of auditing interest transactions); see also Watters v. Wachovia
Bank, N.A., 550 U.S. 1, 12-14 (2007) (state regulation of mortgage activities).
Here, there is no indication that Section 14(A) will significantly interfere
with the NBA’s functions or purposes. Bank of America argues that it may face
civil liabilities under this law, or that it may not be able to manage bank tellers in
the way it desires. But the NBA does not insulate national banks from the indirect
costs of doing business. At best, Bank of America has shown that forcing banks
to provide seats to their employees may have an incidental impact on some general
business operations. And this is not enough. See Gutierrez, 704 F.3d at 722
(requiring significant interference with banking powers). The NBA does not
preempt California Wage Order Section 14(A).
B. Plaintiffs properly exhausted their administrative remedies
Before an employee can bring a civil suit for a violation of California’s
Labor Code, she must "give written notice . . . to the Labor and Workforce
Development Agency and the employer of the specific provisions of [the
California Labor Code] alleged to have been violated, including the facts and
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theories to support the alleged violation." Cal. Lab. Code § 2699.3(a)(1).
Plaintiffs gave written notice of their claims to both the LWDA and Bank of
America. The only question is whether their notices included sufficient “facts and
theories” under § 2699.3(a)(1).
Under California’s Labor Code, a written notice is sufficient so long as it
contains some basic facts about the violations, such as which provision was
allegedly violated and who was allegedly harmed.1 See Alcantar v. Hobart Serv.,
800 F.3d 1047 (9th Cir. 2015) (finding California’s exhaustion requirements not
satisfied where a plaintiff’s allegations were so vague they did not allow the state
agency to “intelligently assess the seriousness of the alleged violations” and the
employer to “determine what policies or practices are being complained of”);
Cardenas v. McLane Foodservices, Inc., 796 F. Supp. 2d 1246, 1259-61 (C.D. Cal.
2011) (explaining that plaintiffs need not put forth “every potential fact or every
future theory,” and finding a notice sufficient where it identified the specific
plaintiffs aggrieved by the alleged violations); Moua v. Int'l Bus. Machs. Corp.,
No. 5:10-cv-01070 EJD, 2012 WL 370570, at *3 (N.D. Cal. Jan. 31, 2012) (same).
1
California law instructs that § 2699.3(a)(1) should be construed liberally in
favor of employees. Home Depot U.S.A., Inc. v. Superior Court, 120 Cal. Rptr. 3d
166, 176 (Cal. Ct. App. 2010).
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Here, given the nature of the plaintiffs’ simple seating claim, and the details
they included in their notice, plaintiffs have satisfied California’s exhaustion
requirements. The written notice contained: (1) the specific statute Bank of
America allegedly violated, (2) facts about what position plaintiffs held, (3) a
statement that plaintiffs could use a seat in their position, and (4) a specific
identification of who was allegedly harmed. These facts put the LWDA and Bank
of America on notice about the nature of the plaintiffs’ claims, namely, that Bank
of America was not providing chairs for plaintiffs as California law requires. The
simplicity of plaintiffs’ claims and the additional details they included distinguish
this case from cases such as Alcantar—where the plaintiffs merely provided a list
of alleged statutory violations. Alcantar, 800 F.3d at 1057. Plaintiffs properly
exhausted their administrative remedies.
C. Reassignment
Plaintiffs request that on remand this case be reassigned to a new district
judge. Reassignment is appropriate in unusual circumstances. D'Lil v. Best
Western Encina Lodge & Suites, 538 F.3d 1031, 1040-41 (9th Cir. 2008). In
determining whether there are unusual circumstances, we consider: “(1) whether
the original judge would reasonably be expected upon remand to have substantial
difficulty in putting out of his or her mind previously expressed views or findings
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determined to be erroneous or based on evidence that must be rejected, (2) whether
reassignment is advisable to preserve the appearance of justice, and (3) whether
reassignment would entail waste and duplication out of proportion to any gain in
preserving the appearance of fairness.” Id. at 1041 (internal citation omitted).
The district judge has wrongly dismissed this case twice, and in over four
years, plaintiffs have not been permitted to proceed beyond their initial complaint.
In light of the history of this litigation, we conclude that if this case were before the
district judge for a third time he would have substantial difficulty in putting his
previously expressed views out of his mind, and that interests of efficiency and the
appearance of justice weigh in favor of reassignment. See Rhoades v. Avon
Products, Inc., 504 F.3d 1151, 1165 (9th Cir. 2007). We therefore direct the Clerk
of the United States District Court for the Central District of California to reassign
this case to a different judge.
REVERSED, REMANDED AND REASSIGNED.
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