Pervasive Hugging Can Create Hostile Work Environment

Where correctional officer alleged sheriff created sexually hostile work environment, summary judgment for defendants was error because a reasonable juror could conclude that differences in the sheriff’s hugging of men and women were not, as the defendants argued, just “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and the opposite sex.”

The Ninth Circuit Court of Appeals ruled that hugging can create a hostile or abusive workplace when it is unwelcome and pervasive, and summary judgment on a hostile work environment claim is appropriate only if the defendant’s conduct was neither severe nor pervasive enough to alter the conditions of the plaintiff’s employment.

Zetwick v. County of Yolo, 2017 S.O.S. 14 (9th Cir. Feb. 23, 2017),

Sea Lion Waste Not a Public Nuisance

Every so often an appellate decision from another area of law will catch my eye. This is one of those instances. It falls under the category of cases where you realize that there are problems that you had no idea people had until you read about them in a published opinion. Such as battling over sea lion poop.

Apparently La Jolla has a long and sordid history as the lavatory of migratory animals. Originally, flocks of birds were the primary culprit of the offending odors. The stench was bad enough for San Diego Mayor Bob Filner to issue an emergency finding in 2013 declaring bird odors from “cormorants, gulls, pigeons and pelicans” a public health hazard and contracted with an outside company to remove the bird excrement requiring remediation. That plan worked, but that’s when public enemy #2 joined the party. “[T]he sea lion population at La Jolla Cove has grown exponentially in recent years, resulting in significant waste buildup on the bluffs” that was bad enough to affect residents and business owners, who formed CONA (“Citizens for Odor Nuisance Abatement (CONA)”).

When the City didn’t treat sea lions with the same urgency as sea gulls, CONA finally decided that enough was enough and in January 2014 sued the City of San Diego for failing to eliminate “an alleged public nuisance caused by noxious sea lion waste odors permeating the picturesque La Jolla Cove.” The crux of their argument was that the City had built fences to prevent humans from accessing parts of the cove, making those areas overly sea lion friendly.

The fence proved a barrier to the City’s ability to dismiss the case at the pleading stage, as a fence is not a “natural condition” and therefore could be the cause of a public nuisance. However, the trial court subsequently granted the City’s motion for summary judgment, finding that pursuant to Civil Code 3482 (which declares that anything done “under the express authority of a statute can be deemed a nuisance”), the sea lions’ waste — or more to the point, the functioning of their digestive processes — was protected under the Marine Mammal Protection Act. Ergo, no nuisance.

The Court of Appeal affirmed. It took issue with the Court’s reasoning on Section 3482, pointing out that merely because sea lions were protected by statute “does not imply authorization for noxious odors emanating from sea lion waste buildup.” Indeed, there can be “circumstances in which a public entity’s
actions in connection with wild animals give rise to public nuisance liability” and, moreover, the City could be held liable for the odors if its actions were “a substantial factor in causing the alleged harm.” Here, however, summary judgment was proper because of lack of causation. The evidence presented showed that the “uncontrolled habitation” of sea lions on the bluffs was not caused by the fence, which had been there for decades (the sea lions were a more recent phenomenon). Also, the City’s environmental expert showed that the protection of local fisheries and the physical properties of the cove itself led to the sea lions’ prosperity and their decision to settle on the bluffs. These were “natural population dynamics.” And although the City perhaps could have scooped the poop, there was no legal requirement for it to act.

This is one of those cases where it would be hard to imagine a court ruling in favor of the plaintiff. As bad as the odors might be, what CONA really wanted was for the City to get the sea lions to pack up and relocate elsewhere. That’s probably not something a judge wants to direct a public entity to do, so absent some extreme negligence on the City’s part, the residents of La Jolla Cove were likely doomed from the start. You do have to feel for them somewhat, though — the stench must have been pretty bad for them to go to this amount of trouble.

On the plus side, perhaps this is the one place in California where home prices are going down…

Citizens for Odor Nuisance Abatement v. City of San Diego (Cal. Ct. App. 4th Dist. Feb. 9, 2017) 2017 S.O.S. 652, available at

9th Circuit Finds Arbitration Agreement Enforceable Where Unconscionable Clauses Are Severable

Plaintiff Poublon filed suit in state court against her employer, C.H. Robinson. Robinson removed to federal court. Likely anticipating a motion to compel arbitration, Poublon filed a First Amended Complaint, which added a claim on under the Private Attorneys General Act (PAGA), which are non-arbitrable under settled law because a PAGA claim is filed on behalf of the State of California.

The Ninth Circuit reversed the district court’s finding of unconscionability. First, the fact that the arbitration rules were not attached to the agreement and were simply incorporated by reference may, at most, gave rise to a “greater degree of procedural unconscionability” under Baltazar, 62 Cal. 4th at 1246. And the 9th Circuit further held that “parties may validly incorporate by reference into their contract the terms of another document” provided certain conditions are met.

Interestingly, the Court also disputed that language requiring Plaintiff’s signature “In consideration for Your continued employment” to not indicate that signing was a condition of employment, as it was merely “boilerplate.” This is a somewhat difficult holding, as contracts are supposed to mean what they say, boilerplate or not. Yet the Ninth Circuit did not find oppression here. Moreover, the existence of representative claim waivers, a carve-out allowing the company (but not Plaintiff) to go to court to seek injunctive relief, and a venue provision setting arbitration in Minnesota were not enough to tip the balance to substantive unconscionability. Those that were one-sided could be severed, preserving the remainder.

It seems to us that were this case decided by the California Court of Appeal, it would likely have been decided in favor of the employee given the number of arguably unconscionable or one-sided provisions. The Ninth Circuit, however, generally displays a greater degree of deference to the preemptive quality of the Federal Arbitration Act. This is likely a case that will be cited to by employer defendants for some time, particularly in federal court, while plaintiffs will look to distinguish it with inconsistent state appellate authority.

One thing is certain: The arbitration morass is unlikely to leave us anytime soon.

Poublon v. C.H. Robinson Company (9th Cir. Feb. 3, 2017)
2017 S.O.S. 15-55143,