Litigation Update

Litigation Section News: April 2016

Senior Editor
Eileen C. Moore, Associate Justice
California Court of Appeal, Fourth District


Table of Contents of This Issue

Attorney Disqualification.

Error to Disqualify Lawyer.

A minority shareholder in a corporation sued the corporation and its majority shareholders, asserting direct and derivative claims arising from management disputes. The minority shareholder moved to disqualify defense counsel, two lawyers who represented all of the defendants, on the basis they could not simultaneously represent the corporation and the majority shareholders because the derivative claims rendered them adverse to each other. The trial court granted the motion and disqualified the two lawyers from representing any of the defendants. With regard to the corporation, the Court of Appeal agreed with the trial court, finding counsel could not concurrently represent defendants in the same action where an actual conflict existed between them. But the appeals court found it was error to disqualify counsel from representing the majority shareholders, a husband and wife who are the corporation’s only two shareholders and who are solely in charge of the corporation’s day to day affairs and pose no threat to counsel’s continuing duty of confidentiality to the corporation. (Ontiveros v. Constable (Cal. App. 4th Dist., Div. 1, Mar. 14, 2016) 245 Cal.App.4th 686.) http://www.courts.ca.gov/opinions/documents/D066412.DOC  Create Your Member Profile. On-line My State Bar Profile allows you to access the Litigation Section’s members only area, update your contact information, pay your dues online, and more. To set up your account, go to calbar.ca.gov/members. Link to My State Bar Profile

How's My Lawyering? Call 1-800-CONFLICT.

When Leslie and Peter were a couple, Peter’s lawyer-brother, Robert, represented Leslie in a legal matter. After Leslie and Peter split, Leslie sued Peter, and this time the lawyer-brother, Robert, represented Peter. Leslie brought a motion to disqualify Robert, contending that when he represented her he learned confidential information that could be used against her in her action against Peter. The trial court granted the motion to disqualify Robert from representing Peter. In affirming, the Court of Appeal stated: “Leslie, as a former client, need not show that Robert actually used the confidential information he learned while representing her in the subsequent defense of Peter. Leslie need only show that Robert could use it in Peter’s case.” (Costello v. Buckley (Cal. App. 4th Dist., Div. 1, Mar. 16, 2016) 245 Cal.App.4th 748.) http://www.courts.ca.gov/opinions/documents/D068536.DOC

Another Lawyer Should Not Have Been Disqualified.

In a marriage dissolution action, court awarded Wife the couple’s marital home, subject to certain conditions. One condition was to “immediately list the property for sale” in order to extinguish Husband’s share of their community debt on the property, a mortgage, to Bank of America. While the property was listed for sale and in escrow, Wife missed mortgage payments, causing Bank of America to record a notice of default to commence foreclosure proceedings. Wife contends that in order to avoid foreclosure, she sold the residence to Lawyer, who already had a junior lien on the property in the form of a family law attorney’s real property lien; the sale occurred while the home was still in escrow with another buyer. Wife and Lawyer memorialized the sale. The sale agreement acknowledged Wife and Lawyer’s attorney-client relationship and set forth Wife’s legal obligation to sell the house, the house’s foreclosure status, and Wife’s inability to make past or future mortgage payments. The trial court disqualified Wife’s Lawyer from representing her in the divorce proceedings. In reversing, the Court of Appeal stated:  “Husband . . . had no standing to bring his disqualification motion. No precedent supports a court otherwise disqualifying a lawyer for potential ethical violations when the client wishes to continue being represented and the moving party cannot demonstrate it would be harmed by the continued representation.” (In re Marriage of Murchison (Cal. App. 2nd Dist., Div. 1, Mar. 17, 2016) 245 Cal.App.4th 847.) http://www.courts.ca.gov/opinions/documents/B264825.DOC

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Disqualification of Counsel in Class Action Context.

Previously reported:
Approval of Class Action Settlement Reversed. A class action against credit agencies, which issued negative credit reports after debts were discharged, settled, and the district court approved the settlement. The Ninth Circuit reversed, explaining: “The settlement agreement, like others we have approved in the past, granted incentive awards to the class representatives for their service to the class. But unlike the incentive awards that we have approved before, these awards were conditioned on the class representatives’ support for the settlement . . . Because these circumstances created a patent divergence of interests between the named representatives and the class, we conclude that the class representatives and class counsel did not adequately represent the absent class members, and for this reason the district court should not have approved the class-action settlement.”  (Radcliffe v. Experian Info. Sols. Inc. (9th Cir. 2013) 715 F.3d 1157.) http://cdn.ca9.uscourts.gov/datastore/opinions/2013/05/02/11-56376.pdf 
Latest development:
This ongoing battle between two teams of named plaintiffs and their class action lawyers was again before the Ninth Circuit. On remand, the trial court rejected the present appellants’ claim that the conflict of interest identified by the Ninth Circuit previously---a conflict created by conditioning incentive awards for the class representatives on their approval of the proposed settlement agreement---meant that the present appellees [who lost last time in the Ninth Circuit] must be automatically disqualified. The trial court did not buy the argument, and the Ninth Circuit agreed, stating:  “We agree with the district court that California law does not apply a rule of automatic disqualification for conflicts of simultaneous representation in the class action context.” (Radcliffe v. Hernandez (9th Cir., Mar. 28, 2016) 2016 WL 178732.) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/28/14-56101.pdf

Failed Attempt to Fustrate Award of Fees to Class Counsel.

After the conclusion of trial in a class action, class representatives requested the court order an award of attorney fees of $9,103,087.50, which was 25 percent of the total fund, to be payable to class counsel. The defendant did not oppose the request, but a member of the class who was not a named plaintiff and moved to intervene requested that notice of the attorney fees request be sent to all class members. The trial court denied the request to send notice to all class members and awarded attorney fees in the amount requested by class representatives.  In dismissing the appeal, the Court of Appeal found the class member lacked standing to pursue the appeal. (Hernandez v. Restoration Hardware, Inc. (Cal. App. 4th Dist., Div. 1, Mar. 14, 2016) 245 Cal.App.4th 651.) http://www.courts.ca.gov/opinions/documents/D067091.DOC

"Do I Believe in Arbitration? I Do. But Not in Arbitration Between the Lion and the Lamb, In Which the Lamb Is in the Morning Found Inside the Lion" - Samuel Gompers.

Two men from Argentina planned to open an Italian restaurant in California and signed a franchise agreement with an Italian company. The agreement contained an arbitration clause, which required the application of Italian law and that arbitration take place in Switzerland. The parties also signed a hold harmless agreement the same day, but that was purportedly signed only to protect one of the men from any visa problems. The restaurant was in operation for eight months. After it closed, the restaurant sued the Italian company in a federal court in California, alleging various violations of California’s Franchise Investment Law and Business and Professions Code. The Italian franchisor secured a stay of the court action when it successfully petitioned the trial court to send the matter to arbitration. In reversing, the Ninth Circuit discussed the parol evidence rule, which “does not prohibit us from considering the Hold Harmless Agreement because that agreement goes to the issue of whether the parties entered into a binding contract.” The appeals court analyzed that the declaration in the Hold Harmless Agreement signed contemporaneously with the franchise agreement “proves that the latter was a mere sham to help [one of the men] obtain a visa,” and concluded the franchise contract, including its arbitration provision, was unenforceable. (Casa del Caffe Vergnano S.P.A. v. ItalFlavors, LLC (9th Cir., Mar. 15, 2016) 2016 WL 1016779.) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/15/13-56091.pdf

Inadvertent Disclosure of Public Records.

Government Code § 6254.5, which is part of the Public Records Act, generally provides that “disclosure” of a public record waives any privilege. During litigation, a City inadvertently provided privileged documents to the plaintiff. The California Supreme Court interpreted the meaning of the statutory “disclosure” provision: “Interpreting section 6254.5 in light of the Public Records Act as a whole, we conclude that its waiver provision applies to an intentional, not an inadvertent, disclosure. A governmental entity’s inadvertent release of privileged documents under the Public Records Act does not waive the privilege.” (Ardon v. City of Los Angeles (Mar. 17, 2016) 62 Cal.4th 1176) http://www.courts.ca.gov/opinions/documents/S223876.DOC

Driving Drunk May Mean No Insurance Coverage.

Patient was admitted to hospital with a high blood alcohol level after an automobile accident. The Patient was insured by Anthem/Blue Cross, which authorized services as they were rendered. In all, the cost of the services amounted to $1,996,265.50, which the insurer refused to pay after eventually denying coverage to the patient because of an exclusion in the patient’s policy for injuries sustained as a result of having a blood alcohol level above the legal limit. The hospital sued Anthem/Blue Cross, alleging its continuing authorizations constituted a misrepresentation as to coverage on which the hospital relied in providing care. The trial judge sustained defendant’s demurrer without leave to amend.  In reversing, the Court of Appeal stated the complaint alleges there existed a trade custom and usage that an authorization of services constitutes an affirmative representation that based on all of the information the health plan has been provided to date, the services are covered, and that those facts are sufficient to overcome a demurrer. (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (Cal. App. 4th Dist., Div. 1, Mar. 17, 2016) 245 Cal.App.4th 821.) http://www.courts.ca.gov/opinions/documents/D069057.DOC

"Getting Information Off the Internet Is Like Taking a Drink From a Fire Hydrant" - Mitchell Kapor.

Plaintiff purchased a flower arrangement over the internet as a Mother’s Day gift. The website said it was a “completely assembled product,” but, in fact, it was a “do-it-yourself kit.” He brought an action for consumer fraud on behalf of himself and a putative class of California consumers who purchased flowers through the website. There was a statement on the website called “Terms of Use,” visible via a hyperlink displayed at the bottom of each page. One of the terms of use was an arbitration provision. Plaintiff said he was never prompted to click onto the Terms of Use and that he never read them. Defendant’s petition to compel arbitration was denied by the trial court. In affirming, the Court of Appeal agreed with the trial court that the website “would not have put a reasonably prudent Internet user on notice . . . and Plaintiff therefore did not unambiguously assent to the subject arbitration provision simply by placing an order.” (Long v. Provide Commerce, Inc., Cal. App. 2nd Dist., Div. 3, Mar. 17, 2016) 245 Cal.App.4th 855.) http://www.courts.ca.gov/opinions/documents/B257910.DOC

The Right to Confront Witnesses Against You.

A jury convicted a father of having sexual intercourse with and orally copulating his four-year-old daughter. At the time of trial, the little girl was five years and two months old. During both direct and cross-examination, the child frequently hid under the witness chair. At one point, she demanded to play Simon Says. Another time, she began talking about Hello Kitty. She said her father peed on her neck and pooped on her hair. For long periods of time, even after taking frequent breaks, she refused to answer questions. Cross-examination lasted two days, but she would not answer hundreds of questions on important topics. On appeal, defendant claimed he was denied his constitutional right to confrontation. The Court of Appeal agreed, stating:  “ ‘The Confrontation Clause of the Sixth Amendment gives the accused the right “to be confronted with the witnesses against him.” ’  (United States v. Owens (1988) 484 U.S. 554, 557.)” The appeals court concluded the man was denied an opportunity to effectively cross-examine and reversed his conviction. (People v. Giron-Chamul (Cal. App. 1st Dist., Div. 1, Mar., 18, 2016) 245 Cal.App.4th 932.) http://www.courts.ca.gov/opinions/documents/A140628.DOC

Asylum in United States Denied.

Petitioners are married and both are Mexican citizens. One entered this country without a visa in 1999, and the other entered without inspection in 1990. They have two biological children and one “informally adopted” child. They seek asylum in this country under the Convention Against Torture, claiming they will be persecuted and tortured if returned to Mexico because they are “imputed wealthy Americans.” They argue that, even though they are not wealthy, because they are “lightskinned, fit and have American mannerisms or accents, their family will be perceived as wealthy Americans in Mexico, and thus will become targets for kidnapping or torture.” The Ninth Circuit denied their petition to review the decision of the Board of Immigration Appeals, which denied them asylum. The appeals court held “the proposed group of ‘imputed wealthy Americans’ is not a discrete class of persons recognized by society as a particular social group.” (Ramirez-Munoz v. Lynch (9th Cir., Mar. 21, 2016) 2016 WL 1084724.) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/21/12-70870.pdf

Class of Workers Prevailed Before United States Supreme Court.

In a jury trial, a class of employees was awarded approximately $2.9 million in compensatory damages from their employer for violations of the Fair Labor Standards Act of 1938 (FLSA; 29 USC § 201 et seq.). The employees’ primary grievance was that they did not receive statutorily mandated overtime pay for time spent donning and doffing protective equipment. The employer sought to reverse the judgment, arguing the class should not have been certified because each employee’s damages are different, depending on how much time it took each to dress and undress and whether the employee worked more than 40 hours in a particular week. Plaintiffs had relied on a study conducted by an industrial relations expert in which the expert videotaped employees, analyzing how long various donning and doffing activities took, and then averaged the time taken, producing an estimate of 18 minutes a day for workers in one department and 21.25 minutes a day for another. These estimates were then added to the timesheets of each employee to ascertain which class members worked more than 40 hours a week. Declining to adopt broad and categorical rules governing the use of representative and statistical evidence in class actions, the United States Supreme Court held that in FLSA actions, it is permissible to infer the hours an employee has worked from a study such as the one used in this case.  The judgment was affirmed. (Tyson Foods, Inc. v. Bouaphakeo (Mar. 22, 2016) 136 S.Ct. 1036.) http://www.supremecourt.gov/opinions/15pdf/14-1146_0pm1.pdf

Arbitrator Exceeded Powers in Awarding Attorney Fees to Defendant Employer.

After plaintiff was fired, she sued her employer for unpaid overtime wages, attorney fees, and costs. Pursuant to contract, the matter was arbitrated by a JAMS arbitrator. The arbitrator rejected most of plaintiff’s claims, but did award her $1,038 for missed meal periods as well as $7,668 in penalties. The arbitrator found defendant to be the prevailing party and awarded defendant $212,685 for attorney fees and $29,046 for costs under Labor Code § 218.5. Plaintiff petitioned the superior court to vacate the award, contending the arbitrator exceeded his powers by awarding attorney fees and costs. Both the trial court and the appellate court concluded the arbitrator exceeded his powers by awarding statutory attorney fees. However, the Court of Appeal reversed the trial court’s award of attorney fees to plaintiff in bringing the motion to vacate.  (Ling v. P.F. Chang’s China Bistro, Inc. (Cal. App. 6th Dist., Mar. 25, 2016) 200 Cal.Rptr.3d 230.) http://www.courts.ca.gov/opinions/documents/H039367.DOC

Prosecutor Excused Potential Juror on the Basis of Race; Conviction Reversed.

In a first degree murder trial, the prosecutor exercised three peremptory challenges to excuse the only three African-American women from the jury pool. The defense attorney objected pursuant to Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258, and argued the prosecutor was systematically excluding African-American women from the jury. When one of the women, W.W., was questioned about where she worked, she said: “I’m a field representative for the Department of Commerce.” After the objection was made, the court asked the prosecutor to justify the three challenges. Regarding W.W., the prosecutor said that W.W. collected information for “these liberal organizations.” The trial court denied the objections. In reversing the defendant’s conviction, the appellate court stated: “Even given deferential review, there is no evidence to support the prosecutor’s reason for removing Prospective Juror W.W. The prosecutor’s reason was inconsistent with and unsupported by the record.” The opinion states, “[T]he exclusion by peremptory challenge of a single juror on the basis of race is an error of constitutional magnitude requiring reversal.” (People v. Arellano (Cal. App. 5th Dist., Mar. 24, 2016) 245 Cal. App. 4th 1139.) http://www.courts.ca.gov/opinions/documents/F068958.DOC

Bad News for Opponents of Employment Arbitration Agreements.

As a condition of her employment with defendants, plaintiff signed an agreement to resolve any employment-related disputes by means of arbitration. The agreement provides that in the event a claim proceeds to arbitration, the parties are authorized to seek preliminary injunctive relief in the superior court. When the employer petitioned the trial court for arbitration, plaintiff contended the arbitration agreement is procedurally unconscionable because of the parties’ unequal bargaining power in that she was required to sign it without modification as a condition of employment. The trial court agreed. The trial court also found that the agreement was substantively unconscionable because (1) it lists only employee claims as illustrative examples of the types of disputes to which it applies, (2) it gives the employer the right to protect trade secrets and other confidential information, and (3) it requires arbitration even if a court finds the agreement to be unenforceable insofar as it requires arbitration under the model rules of the American Arbitration Association (AAA). The petition to compel arbitration was denied. The Court of Appeal reversed. It agreed with the trial court‘s conclusion that the agreement was oppressive and procedurally unconscionable because plaintiff was required to sign the Agreement as a condition of employment, was unable to negotiate the terms of the Agreement, and had no meaningful choice in the matter. But the Court of Appeal disagreed with the trial court’s conclusion that the agreement was substantively unconscionable. In affirming the judgment of the Court of Appeal, the California Supreme Court stated: “The primary question before us is whether this clause [authorizing the parties to seek preliminary injunctive relief in the superior court] renders the arbitration agreement unconscionable, and therefore unenforceable, because it unreasonably favors the employer. We conclude that the clause, which does no more than restate existing law (see Code Civ. Proc., § 1281.8, subd. (b) (section 1281.8(b))), does not render the agreement unconscionable.” (Baltazar v. Forever 21, Inc. (Cal., Mar. 28, 2016) 367 P.3d 6.) http://www.courts.ca.gov/opinions/documents/S208345.DOC

Hospital's Demurrer to Elder Abuse Claim Should Not Have Been Sustained.

An elderly man with dementia was confused and wandering, so his family admitted him to defendant psychiatric hospital to protect him from falls and from wandering. Minutes after entering the hospital, the man was left unattended and fell. He broke his hip, which was not discovered until four days later and never recovered from the surgery, passing away a few months later. The man’s family brought an action for elder abuse, alleging reckless understaffing, that the hospital concealed the man’s fall from his family, knowing the fall was an adverse event that would affect its Medicare funding, and that the hospital gave the family conflicting stories about how the fall occurred. The trial court sustained the hospital’s demurer. Finding the operative complaint alleged “at least one viable theory of elder abuse based on recklessness,” the Court of Appeal reversed. (Fenimore v. Regents of the Univ. of California (Cal. App. 2nd Dist., Div. 8., Mar. 28, 2016) 200 Cal.Rptr.3d 345.) http://www.courts.ca.gov/opinions/documents/B262186.DOC

Jury Found Age Discrimination in Wrongful Termination Action, But Also That Plaintiff Would Have Been Fired Anyway for Poor Job Performance.

In Harris v. City of Santa Monica (2013) 56 Cal.4th 203, the California Supreme Court held that to establish a claim of employment discrimination under FEHA, the employee must “ ‘produce evidence sufficient to show that an illegitimate criterion was a substantial factor in the particular employment decision.’” The Harris court further held that once a plaintiff has shown discrimination was a substantial motivating factor in the employment decision, the employer may avoid liability for damages, back pay, or an order of reinstatement “by proving that a legitimate motive alone would have led it to make the same decision,” absent the discrimination. In the instant action, however, while plaintiff brought a wrongful termination claim, he did not include a claim for violation of California’s Fair Employment and Housing Act, yet the trial court instructed the jury on the Harris holding. The jury found in favor of plaintiff on the question whether age discrimination was a substantial motivating reason for his discharge. However, it also found that defendant would have made the same termination decision for legitimate reasons having to do with his poor job performance. On appeal, appellant contends the trial court erred in giving instructions based on the holding in Harris. He further contends he was entitled to declaratory relief, injunctive relief, and attorney fees. Finally, he asserts the court erred in granting a directed verdict on his wage claim. In affirming and reversing, the Court of Appeal stated: “We conclude the court did not err in giving the Harris instructions or in denying appellant alternative relief when the jury rejected his claim for damages. However, we conclude appellant presented sufficient evidence to allow his wage claim to go to the jury. We, therefore, reverse and remand for retrial on that claim. We otherwise affirm.” (Davis v. Farmers Ins. Exch. (Cal. App. 2nd Dist., Div. 4, Mar. 28, 2016) 200 Cal.Rptr.3d 315.) http://www.courts.ca.gov/opinions/documents/B257970.DOC

Medical Board Denied Access to Patient's Medical Records.

The Medical Board of California investigated a licensed psychiatrist based on a complaint he carried on a sexual relationship with a patient. Both the doctor and the patient objected to production of the patient’s medical records when the Board served a subpoena duces tecum. The Board brought a petition in the superior court to compel their production, and the trial court denied the petition. The appellate court affirmed, finding that absent a compelling interest shown by the Board, the records sought are protected by the psychotherapist-patient privilege of Evidence Code § 1014. (Kirchmeyer v. Phillips (Cal. App. 4th Dist., Div. 3, Mar. 28, 2016.) 200 Cal.Rptr.3d 515.) http://www.courts.ca.gov/opinions/documents/G051594.DOC

Administrative Board's Decision Reversed Because It Considered Evidence Not in the Record.

A well known public figure who was a county civil service employee was fired for insubordination, dishonesty and misuse of work time after the man told county officials they were acting unlawfully by interfering with the efforts of the Service Employees Union. He received a hearing pursuant to Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (California Supreme Court held such a hearing was required for due process purposes when an agency is considering disciplinary action). The hearing officer determined that termination was appropriate. The Civil Service Commission for the County of Fresno denied the employee’s appeal. He then filed a petition for writ of administrative mandamus pursuant to Code of Civil Procedure § 1094.5. The trial court determined that reversal was not required and denied the petition. On appeal, the employee argued reversal is required because he was denied a fair hearing when the Commission relied on evidence that was not part of the record. Stating that the man’s credibility was “the crux here,” the Court of Appeal found the trial court erred when it found the not-in-the-record evidence insignificant. The appellate court concluded that the employee was denied a fair hearing and that reversal is required. (Pinheiro v. Civil Service Commission for the County of Fresno (Cal. App. 5th Dist., Mar. 29, 2016) 200 Cal.Rptr.3d 525.) http://www.courts.ca.gov/opinions/documents/F070473.DOC

State Park with Amenities Is Unimproved.

A family was sleeping in a tent in a state park that had roads, parking lots, campsites, hiking trails, restrooms, a visitor center and various other buildings. Their three-year-old daughter, Alana, suffered brain damage when a tree fell on the campsite and struck her on the head. Government Code § 831.2 provides no public entity “is liable for an injury caused by a natural condition of any unimproved public property.” The issue here is not whether the tree was a natural condition, which it clearly is, but whether the State’s property is improved or unimproved. Alana cited the following language from a Department operations manual: “Government Code § 831.2 provides immunity to the Department and its employees for any injury caused by a natural condition of any unimproved public property. Thus the scope of the Tree Hazard Program is solely within the developed areas of all parks operated by the Department.” (Italics added.) Alana argued this evidence showed the State considered the Portola Campground to be a “developed area,” and this fact, in turn, raised a triable issue of fact as to whether the entire area of the campground, including the tree that injured her, was improved public property outside the ambit of section 831.2. The trial court granted summary judgment in favor of the State of California. In affirming, the Court of Appeal said the amenities in the park such as roads, parking lots, picnic tables, etc. do not abrogate the natural condition immunity. (Alana M. v. State of California (Cal. App. 1st Dist., Div. 1, Mar. 29, 2016) 200 Cal.Rptr.3d 410.) http://www.courts.ca.gov/opinions/documents/A142240.DOC   

"I Drink Too Much. The Last Time I Gave a Urine Sample It Had an Olive in It" - Rodney Dangerfield.

A woman went back to her workplace after a night of drinking with friends. She awoke in the middle of the night and used the restroom, accidently triggering the building’s burglar alarm when she did. The police responded with a dog, which they released. The dog pounced on the woman and bit her in the face. She brought suit for excessive force under 42 USC § 1983. A federal trial court granted summary judgment, finding that she did not suffer constitutional harm and that, even if she did, the City was not liable for her injuries. The Ninth Circuit reversed, stating that the totality of the circumstances must be evaluated, considering whatever particular factors might apply, such as whether a warning was given before the dog was released, and the availability of other tactics to effect a search. (Lowry v. City of San Diego (9th Cir., Apr. 1, 2016) 2016 WL1273183.) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/04/01/13-56141.pdf

"Sitting Is The New Smoking" - Health Catchphrase, c. 2009.

In 1911, the Legislature enacted a provision requiring employers in the mercantile industry to “provide suitable seats for all female employees” and to allow them “to use such seats when they are not engaged in the active duties of their employment.” (Stats. 1911, ch. 258, § 2, p. 437.)  In the present case, the Ninth Circuit certified questions to the California Supreme Court involving California wage order requirements that an employer provide suitable seating for employees under certain circumstances (Cal. Code Regs., tit. 8, §§ 11040, subd. 14(A) (Wage Order No. 4-2001), 11070, subd. 14(A) (Wage Order No. 7-2001) [“working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats”].)  The California Supreme Court responded: “(1) The ‘nature of the work’ refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a ‘holistic’ consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for. [¶] (2) Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the work, not an individual employee’s characteristics. [¶] (3) The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.” (Kilby v. CVS Pharmacy, Inc. (Cal., Apr. 4, 2016) 2016 WL 1296101.) http://www.courts.ca.gov/opinions/documents/S215614.DOC

Lobbyists at Work Writing Statutes ... Topic ... High Speed Police Pursuits Resulting in Death and Injury to Bystander Motorists.

In 2002, an appellate court reluctantly granted summary judgment to a police department in Nguyen v. City of Westminster (2002) 103 Cal.App.4th 1161, noting that Vehicle Code §17004.7 permitted police departments to merely adopt a pursuit policy and accomplish complete immunity from civil suits, without ever having to implement that policy. The opinion urged the Legislature to revisit the statute. The Legislature did so, amending the statute in 2005 to require that a “public agency that employs peace officers to drive emergency vehicles and authorizes vehicle pursuits shall develop, adopt, promulgate, and provide regular and periodic training for those peace officers in accordance with the agency’s pursuit policy.” In the present case, a husband/father died when a criminal suspect crashed head-on into his vehicle while fleeing from police during a vehicle pursuit that lasted nearly 12 minutes. The man’s family sued the police department for wrongful death, and the trial court granted the police department’s motion for summary judgment, concluding it was immune pursuant to Vehicle Code §17004.7. In reversing, the Court of Appeal found defendant police department failed to proffer sufficient evidence to establish as a matter of law that the police department “promulgated” its vehicle pursuit policy as required by the statute. (Morgan v. Beaumont Police Department (Cal. App. 4th Dist., Div. 1, Apr. 4, 2016) 2016 WL 1316837.) http://www.courts.ca.gov/opinions/documents/D069308.DOC

Summary Judgment Reversed in Employment Discrimination Action.

In a wrongful termination case, the plaintiff alleged that his son requires daily dialysis, which plaintiff must administer. For several years, plaintiff’s supervisors scheduled him so that he could be home at night for his son’s dialysis. When a new supervisor took over, plaintiff was terminated for refusing to work a shift that did not permit him to be home on time for his son’s dialysis. The trial court granted defendant employer’s motion for summary judgment. The Court of Appeal analyzed that a prima facie case of disability discrimination under FEHA (Fair Employment and Housing Act; Gov. Code § 12926 (o)) requires a showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because of the disability, and that adapting that framework to the present discrimination context, the “disability” from which the plaintiff suffers is his or her association with a disabled person. The appellate court reversed on plaintiff’s causes of action for disability discrimination, failure to prevent discrimination, retaliation and wrongful termination in violation of public policy. (Castro-Ramirez v. Dependable Highway Express, Inc. (Cal. App. 2nd Dist., Div. 8, Apr. 4, 2016) 2016 WL 1298637.) http://www.courts.ca.gov/opinions/documents/B261165.DOC 

Denial of a Fair Hearing and Lack of Substantial Evidence Results in Overturning University's Disciplinary Decision.

A male and a female college student engaged in consensual sex at an off-campus party.  While this was occurring other men also penetrated the female student, handled her roughly, and slapped her hard on the buttocks without her consent. When she reported the incident several months later, the university investigated the matter and held a hearing. The university found that the male student had violated several sections of the student conduct code and suspended him. He petitioned the superior court for a writ of administrative mandate, which the court granted as to one charge and otherwise denied. The Court of Appeal reversed in part, concluding the university had denied the student a fair hearing because both the notice and the hearing were deficient.  The appellate court also concluded there was no substantial evidence supporting one of the charges. (John Doe v. University of Southern California (Cal. App. 2nd Dist., Div. 4, Apr. 5, 2016) 2016 WL 1321509.) http://www.courts.ca.gov/opinions/documents/B262917.DOC

A Church Divided.

Due to theological disagreements, a majority of the members of the Diocese of San Joaquin voted to disaffiliate from the Protestant Episcopal Church in the United States of America. This case concerns who now owns the property that belonged to the Diocese before the disaffiliation. The former Protestant Episcopal Bishop of San Joaquin was elected bishop in 1988 and vowed to conform the doctrine, discipline and worship of the Diocese because the Church had lost its way. The bishop filed a document with the Secretary of State to reflect he was the chief officer of the corporation sole. In 2008, the presiding bishop with the consent of a majority of the House of Bishops deposed the bishop of the Diocese. A provisional bishop was elected. Thereafter, the old bishop retitled 27 parcels of land and granted them to The Anglican Bishop of San Joaquin. When the provisional bishop asked for the return of the property, the old bishop refused and litigation resulted. The trial court ruled in favor of the Episcopal Church and the Diocese.  In affirming, the Court of Appeal concluded that, in applying neutral principles of law and not church doctrine, the old bishop’s property transfers were invalid. (Diocese of San Joaquin v. Gunner (Cal. App. 5th Dist., Apr. 5, 2016) 2016 WL 1319742.) http://www.courts.ca.gov/opinions/documents/F070264.DOC  

Holy Cannabis.

The Religious Freedom Reformation Act (RFRA; 42 USC § 2000bb et seq.) mandates that the federal government may not substantially burden a person’s religious exercise unless it uses the least restrictive means to further a compelling interest. In this case, after a member of the Native American Church of Hawaii had his cannabis seized and was threatened with federal prosecution, the church sought declaratory and injunctive relief under the RFRA to prevent the government from prosecuting church members who grow cannabis for church services. The government brought a motion for summary judgment.  The federal trial court granted the motion and dismissed the action, after finding the church had produced almost no admissible evidence regarding its religion and that no reasonable juror could infer that the religion is anything more than a strongly held belief in the importance and benefits of marijuana. The Ninth Circuit Court of Appeals affirmed, stating the church “produced no evidence that denying them cannabis forces them to choose between religious obedience and government sanction.” (Oklevueha Native American Church of Hawaii v. Lynch (9th. Cir., Apr. 6, 2016) 2016 WL 1359239.) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/04/06/14-15143.pdf

Alert!! Alert!! Conservative on Campus.

A student at a California State University brought suit against university administrators and faculty members for violation of his First Amendment rights and other claims, including retaliation. The plaintiff, a junior at Fresno State University, is an outspoken political conservative. Among his many objections, he objects to the university’s support for the student body president, who is an undocumented immigrant. He objects to a poem in a supplement to the university’s newspaper; the poem includes such sentiments as: “America the land robbed by the white savage” and “land of the biggest genocide.” Plaintiff alleged that: his Public Records Act requests to obtain information on administrator salaries and other issues were “reported all the way up to the then-university president”; his political activities have been monitored and interfered with by university officials; he overheard two faculty members discussing him as a stalker, saying that his photo should be posted on a “wanted” sign to warn all of his presence; when he approached the two faculty members, he turned on his video, and both refused to speak with him, calling campus police instead; the police determined that plaintiff had not been threatening or intimidating, and the faculty members tried to persuade the police to rewrite the report; at the faculty’s insistence, the matter was turned over to local prosecutors who declined to prosecute; thereafter, the dean informed plaintiff he was facing disciplinary action because he “threatens or endangers the health, or safety…including physical abuse, threats, intimidation, harassment…”; at disciplinary hearings, his requests to bring an attorney with him or to record proceedings were denied; the university determined that he had violated the student code; he was ordered to stay away from faculty and buildings unless he had a prescheduled class or appointment. A federal trial court dismissed the student’s action for failure to state a claim. The Ninth Circuit reversed, finding that plaintiff alleged facts supporting his First Amendment retaliation claim and also, at least for now, reversed the district court’s conclusion that the defendants are entitled to qualified immunity (O’Brien v. Welty (9th Cir., Apr. 7, 2016) 2016 WL 1382240.) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/04/07/13-16279.pdf

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