NOT FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`MAY 4 2021
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 20-16153
`
`
`D.C. No.
`2:17-cv-00876-TLN-CKD
`
`
`
`MEMORANDUM*
`
`
`
`
`
`
`
` Plaintiff-Appellant,
`
`MEGHAN SILVA, on behalf of herself and
`others similarly situated,
`
`
`
` v.
`
`
`MEDIC AMBULANCE SERVICE, INC.,
`
`
`
`
`
`
`
`
`
` Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the Eastern District of California
`Troy L. Nunley, District Judge, Presiding
`
`Submitted April 16, 2021**
`San Francisco, California
`
`Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.
`Concurrence by Judge RAWLINSON
`
`
`
`Meghan Silva sued her former employer, Medic Ambulance Service, Inc.
`
`(“Medic”), alleging that Medic violated California law by requiring her to remain
`
`on call during rest periods. Medic removed the suit to district court on the ground
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
`
`except as provided by Ninth Circuit Rule 36-3.
`
`** The panel unanimously concludes this case is suitable for decision
`
`
`without oral argument. See Fed. R. App. P. 34(a)(2).
`
`
`
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`MAY 4 2021
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 20-16153
`
`
`D.C. No.
`2:17-cv-00876-TLN-CKD
`
`
`
`MEMORANDUM*
`
`
`
`
`
`
`
` Plaintiff-Appellant,
`
`MEGHAN SILVA, on behalf of herself and
`others similarly situated,
`
`
`
` v.
`
`
`MEDIC AMBULANCE SERVICE, INC.,
`
`
`
`
`
`
`
`
`
` Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the Eastern District of California
`Troy L. Nunley, District Judge, Presiding
`
`Submitted April 16, 2021**
`San Francisco, California
`
`Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.
`Concurrence by Judge RAWLINSON
`
`
`
`Meghan Silva sued her former employer, Medic Ambulance Service, Inc.
`
`(“Medic”), alleging that Medic violated California law by requiring her to remain
`
`on call during rest periods. Medic removed the suit to district court on the ground
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
`
`except as provided by Ninth Circuit Rule 36-3.
`
`** The panel unanimously concludes this case is suitable for decision
`
`
`without oral argument. See Fed. R. App. P. 34(a)(2).
`
`
`
`
`
`
`
`
`
`that the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, completely
`
`preempts at least one of Silva’s claims and therefore her action presents a federal
`
`question under 28 U.S.C. § 1331. See 28 U.S.C. § 1441(a). Silva filed a motion to
`
`remand, arguing that her claims were not preempted by the LMRA and thus the
`
`district court lacked removal jurisdiction. The district court denied the motion,
`
`reasoning that Silva’s claims are preempted because her claims “substantially
`
`depend on analysis of” provisions of a collective bargaining agreement (“CBA”)
`
`that governed the terms of her employment with Medic. The district court later
`
`dismissed Silva’s claims with prejudice.
`
`Silva appeals the denial of her motion to remand. We have jurisdiction
`
`pursuant to 28 U.S.C. § 1291, and we reverse. We review de novo the district
`
`court’s determination that a plaintiff’s action is preempted by the LMRA.
`
`Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1058 (9th Cir. 2007).
`
`A state law claim is preempted under the LMRA if it is “founded directly on
`
`rights created by [a] collective-bargaining agreement[]” or is “substantially
`
`dependent on analysis of a collective-bargaining agreement.” McCray v. Marriott
`
`Hotel Servs., Inc., 902 F.3d 1005, 1009 (9th Cir. 2018) (citation omitted). “The
`
`plaintiff’s claim is the touchstone” for this analysis, and we only evaluate the
`
`“claim’s legal character—whatever its merits—so as to ensure it is decided in the
`
`proper forum.” Dent v. Nat’l Football League, 902 F.3d 1109, 1117 (9th Cir.
`
`
`
`2
`
`
`
`
`
`2018) (internal quotation marks and citations omitted).
`
`Silva’s claims are not preempted by the LMRA because they rise or fall on
`
`her allegation that Medic violated California Labor Code section 226.7 by
`
`requiring her to remain on call during rest periods. See McCray, 902 F.3d at 1010–
`
`13. Consequently, the claimed right to relief is based on California law, not the
`
`CBA. See id. at 1010–11. Moreover, Silva’s claims are not substantially
`
`dependent on analysis of the CBA because “resolution of [her] state-law claim[s]
`
`does not require construing the collective-bargaining agreement.” See Dent, 902
`
`F.3d at 1117 (citation omitted). Although the CBA may be relevant to whether
`
`Medic required Silva to remain on call during rest periods, as Medic suggests, this
`
`“purely factual inquiry” does not depend on interpretation of the CBA’s
`
`provisions. See Burnside, 491 F.3d at 1072–73. Indeed, Silva can establish that
`
`Medic required her to remain on call during rest periods without resort to the
`
`CBA’s provisions. See Dent, 902 F.3d at 1117–18 (explaining that a claim only
`
`depends on analysis of a CBA if interpretation of the CBA is required for plaintiff
`
`to prevail). Therefore, the district court erred in concluding that Silva’s claims are
`
`preempted by the LMRA.
`
`Because Silva’s claims are not preempted, the district court lacked removal
`
`jurisdiction. See McCray, 902 F.3d at 1009, 1014. Accordingly, we reverse the
`
`district court’s denial of the motion to remand, and we remand with instructions to
`
`
`
`3
`
`
`
`
`
`remand this action to the Superior Court of California, County of Solano.1
`
`We grant Medic’s motion to take judicial notice. Dkt. 22.
`
`REVERSED and REMANDED.
`
`
`1 We need not reach Medic’s assertion that a change in California law has
`rendered this case moot given our determination that the federal courts lack subject
`matter jurisdiction over Silva’s claims. See Sinochem Int’l Co. v. Malaysia Int’l
`Shipping Corp., 549 U.S. 422, 431 (2007) (stating federal courts have “leeway ‘to
`choose among threshold grounds for denying audience to a case on the merits’”
`(citation omitted)).
`
`
`
`4
`
`
`
`
`
`Silva v. Medic Ambulance Service, Inc., Case No. 20-16153
`Rawlinson, Circuit Judge, concurring in the judgment:
`
`FILED
`
`MAY 4 2021
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`The people of the State of California have enacted a statute making it clear
`
`that Plaintiff Meghan Silva (Silva) has no viable statutory claim. Therefore, there
`
`is no longer a case or controversy, and Silva lacks Article III standing to pursue
`
`this appeal. See Timbisha Shoshone Tribe v. United States Dep’t of Interior, 824
`
`F.3d 807, 813-14 (9th Cir. 2016) (explaining that, under Article III, “we must
`
`dismiss a case if there is no longer a . . . live case[ ] or controvers[y]” because “an
`
`appellant can obtain [no] relief for [her] claim”) (citation and internal quotation
`
`marks omitted).
`
`Silva, an ambulance technician, alleged in her complaint that her employer
`
`Medic Ambulance Service, Inc. failed to provide off-duty rest breaks as required
`
`by California Labor Code § 226.7 and Industrial Welfare Commission Wage Order
`
`No. 4. However, the Emergency Ambulance Employee Safety and Preparedness
`
`Act (the Act), California Labor Code § 887(a), precludes a viable claim against her
`
`employer for remaining on call during rest breaks.
`
`California Labor Code § 887(a) provides:
`
`Notwithstanding any provision of law to the contrary:
`
`(a) In order to maximize protection of public health and
`safety, emergency ambulance employees shall remain
`
`1
`
`
`
`reachable by a portable communications device
`throughout the entirety of each work shift.
`
`In short, the statute requires emergency ambulance employees to remain on
`
`call “throughout the entirety of each work shift.” Id. This requirement is the
`
`practice Silva challenged. And California Labor Code § 889 made this
`
`requirement retroactive.
`
`The California Court of Appeal has made it clear that a claim such as the one
`
`made by Silva is not viable. In Calleros v. Rural Metro of San Diego, Inc., 58 Cal.
`
`App. 5th 660, 667 (2020), the court concluded that a similar appeal was moot. The
`
`court explained that “the Act now requires on-call rest periods and expressly made
`
`this mandate retroactive.” Id. at 666 (citing California Labor Code § 889).
`
`Absent an indication that the California Supreme Court would interpret this
`
`statute differently (and there is none), we are bound by the California Court of
`
`Appeal’s interpretation. See Skyline Wesleyan Church v. Cal. Dep’t of Managed
`
`Health Care, 968 F.3d 738, 752 (9th Cir. 2020), as amended (articulating that
`
`“[b]ecause the Court of Appeal’s decision . . . represents the ruling of the highest
`
`state court issued to date, and we have not seen any persuasive data that the
`
`California Supreme Court would reach different conclusions, we are bound by that
`
`decision to the extent its interpretation of California law is relevant”) (citation and
`
`2
`
`
`
`internal quotation marks omitted). Because this interpretation of the Act renders
`
`Silva’s claim moot, there is no longer a case or controversy pending before us. We
`
`should dismiss this appeal and not address the merits of the remand decision.
`
`3
`
`
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