                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 24 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

WILLIAM LUKOV,                                   No. 12-17695

              Plaintiff - Appellant,             D.C. No. 5:11-cv-00201-EJD

  v.
                                                 MEMORANDUM*
SCHINDLER ELEVATOR
CORPORATION,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Edward J. Davila, District Judge, Presiding

                          Submitted February 13, 2015**
                             San Francisco California

Before: NOONAN and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge.***




        *
             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).
        ***
             The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
      William Lukov appeals the district court’s grant of summary judgment in

favor of Schindler Elevator Corporation. Lukov claimed that Schindler violated

California Labor Code §§ 6310 and 1102.5 and California common law by

terminating him in retaliation for reporting an unsafe Nordstrom elevator to

Schindler and the California Department of Occupational Safety and Health. We

have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse and remand.

      The district court erred when it held that Lukov could not prove that he

engaged in protected activity because he did not step outside of his role of

reporting elevator code violations. Although the California Supreme Court has not

addressed the issue, state appellate courts have refused to extend the federal “step

outside of his role” rule to California wrongful termination claims. See, e.g.,

McVeigh v. Recology San Francisco, 152 Cal. Rptr. 3d 595, 617 (Ct. App. 2013);

Storm v. Thrifty Payless, Inc., No. B228091, 2011 WL 6004447 at *10-11 (Cal. Ct.

App. Dec. 1, 2011) (unpublished opinion). Consistent with McVeigh, California

has amended the whistle blower statute to apply “regardless of whether disclosing

the information is part of the employee’s job duties.” Cal. Labor Code § 1102.5(b)

(2014). Thus, the California Supreme Court is unlikely to adopt the federal rule

for its state law claims.




                                          2
      The district court also erred in granting summary judgment against Lukov on

his claim that his employer, in violation of California Labor Code § 6310,

retaliated against him for complaining about unsafe working conditions. Lukov

came forward with sufficient evidence that he was laid off for complaining about

what he reasonably believed to be the dangerous location of a department store’s

elevator shunt trip – a condition that he reasonably believed created an

electrocution hazard to persons entering the elevator machine room, including

elevator repairmen such as himself.

      The district court also erred in granting summary judgment against Lukov on

his claim under California Labor Code § 1102.5. Even assuming, for the sake of

argument, that Lukov was mistaken about whether state regulations prohibited the

specific location of the shunt trip at issue, Lukov came forward with evidence from

which a trier of fact could find that he had “reasonable cause to believe” (which is

all that the statute requires) that the shunt trip’s placement violated safety

regulations. California Labor Code § 1102.5 protects whistle blowers if they act

with reasonable cause to believe that a rule or regulation was violated, even if they

turn out to be wrong.

      For the same reasons, Lukov’s public policy claims linked to violations of §




                                           3
6310 and § 1102.5 survive summary judgment.

     REVERSED AND REMANDED.




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