                                                                           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                            NOT FOR PUBLICATION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


                                            3
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).

                                           4
      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


                                            5
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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