Journal of Consumer Attorneys Associations for Southern California
The Annual Employment & Labor Law Issue â€” Bonus Articles â€”
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The Advocate Magazine â€” 5
Contents Volume 40, Number 4, APRIL 2013
Editor-in-Chief Jeffrey Ehrlich Associate Editors Joseph Barrett, Mary Bennett, Joan Kessler, James Kristy, Beverly Pine, Norman Pine, Rahul Ravipudi, Linda Rice, Ibiere Seck, Geraldine Weiss Editors-in-Chief Emeriti Kevin Meenan, William Daniels, Steven Stevens, Christine Spagnoli, Thomas Stolpman Publisher Managing Editor Richard Neubauer Cindy Cantu email@example.com firstname.lastname@example.org Copy Editor Art Director Eileen Goss David Knopf
Consumer Attorneys Association of Los Angeles President Treasurer Lisa Maki Ricardo Echeverria President-Elect Secretary Geoffrey Wells Michael Arias First Vice President Immediate Past President Joseph Barrett Michael Alder Second Vice President Executive Director David Ring Stuart Zanville
Board of Governors Martin Aarons, Mike Armitage, Shehnaz Bhujwala, Todd Bloomfield, John Blumberg, Michael Cohen, Scott Corwin, Jeffrey Ehrlich, Mayra Fornos, Stuart Fraenkel, Scott Glovsky, Steve Goldberg, Jeff Greenman, Christa HaggaiRamey, Genie Harrison, Arash Homampour, Neville Johnson, Bill Karns, Aimee Kirby, James Kristy, Lawrence Lallande, Anthony Luti, Shawn McCann, Minh Nguyen, Linda Fermoyle Rice, David Rosen, Jeffrey Rudman, Ibiere Seck, Douglas Silverstein, Armen Tashjian, Kathryn Trepinski, Geraldine Weiss, Jeff Westerman, Ronnivashti Whitehead, Andrew Wright, Dan Zohar Orange County Trial Lawyers Association Secretary President Geraldine Ly Scott Cooper Treasurer President-Elect Casey Johnson
First Vice President Ted Wacker
Second Vice President Vincent Howard Third Vice President H. Shaina Colover
B. James Pantone
Parliamentarian Jonathan Dwork Immediate Past President Douglas Schroeder
Executive Director Janet Thornton
Board of Directors Melinda S. Bell, Gregory G. Brown, Anthony W. Burton, Brent W. Caldwell, Cynthia A. Craig, Jerry N. Gans, Robert B. Gibson, Paul E. Lee, Kevin G. Liebeck, Christopher E. Purcell, Solange E. Ritchie, Sarah C. Serpa, Adina T. Stern, Douglas B. Vanderpool, Janice M. Vinci, Atticus N. Wegman Periodicals postage paid at Los Angeles, California. Copyright © 2013 by the Consumer Attorneys Association of Los Angeles. All rights reserved. Reproduction in whole or in part without written permission is prohibited.
ADVOCATE (ISSN 0199-1876) is published monthly at the subscription rate of $50 for 12 issues per year by the Consumer Attorneys Association of Los Angeles, 800 West Sixth Street, #700, Los Angeles, CA 90017 (213) 487-1212 Fax (213) 487-1224 www.caala.org
Send address changes to ADVOCATE
c/o Neubauer & Associates, Inc. P.O. Box 2239 Oceanside, CA 92051 6 — The Advocate Magazine
v. City of Santa Monica: 16 AHarris new standard in California
An analysis of the legal requirements for meeting the new standard in light of both the Harris decision and existing Supreme Court precedent interpreting the “substantial factor” test.
David M. deRubertis
26 Maximizing your mediation experience
With courtroom doors locked by budget cuts, maximizing mediation is a must. The author’s tips address practitioners who handle cases in a wide variety of torts.
32 Winning damages at trial for emotional distress The trial of a lawsuit is in the telling of a story. An emotional-distress case must be presented in a way that a jury can empathize with the victim.
40 The best and worst employment cases of 2012 The good, the bad, and the most useful: A look back at the most important employment law cases of 2012.
Andrew H. Friedman
Industry-specific burdens to plaintiffs’ 56 employment claims
Federal pre-emption, limits on damages and other onerous rules are imposed on employees working in certain industries or bringing certain claims. The author discusses some of the more prevalent industryspecific and claim-specific hurdles of which employment practitioners should be aware.
72 The ABC’s of federal and state leave laws
An overview of the myriad federal and state laws that provide protected leaves of absence to California employees. These laws often overlap and intersect.
Sarah B. Schlehr and Hilary L. Rau
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Submitting articles for publication: Check the annual editorial calendar at www.theadvocatemagazine.com to see when your legal topic would be most appropriate. Articles on time sensitive matters are welcome throughout the year, as are opinion columns, humor pieces, human-interest stories, lifestyle and personality features. Send your article as a WordPerfect or Word document attachment to e-mail: firstname.lastname@example.org. Please check the website for complete editorial requirements. Reprint permission: E-mail written request to Managing Editor Cindy Cantu: email@example.com
New California labor and employment laws for 2013
Discover the new rules for personnel records, wage statements, sex discrimination and breast feeding, disability discrimination and reasonable accommodation, pregnancy disability, and more.
General damages in negligence actions
An examination of the limitations and “gatekeepers” to recovering damages beyond physical injury. The second and final part of a two-part article.
Hon. Rita Miller
Employment and Labor Law A look at the hottest cases and newest rules in employment law. Beverly Tillett Pine & Norman Pine A PPELL ATE R EPORTS : C A SES
Recent cases of interest to members of the plaintiffs’ bar Jeffrey Isaac Ehrlich
G OVERNMENT R EL ATIONS B ULLETIN Updates from Sacramento and Washington.
D IRECTORY OF A DVERTISERS C ALENDAR OF E VENTS
See you in Sacramento May 7 for CAOC’s Justice Day
E XECUTIVE D IRECTOR
Consumer Attorneys Association of Los Angeles
CAALA’s vision statement Six words that explain what we do to help you. Stuart Zanville
CAALA R ESOURCE C ENTER
Get the latest court news at LASCCourtReport.com CAALA’s online resource for members to keep connected to changes in the L.A. Superior Courts.
Orange County Trial Lawyers Association
— New CAALA Affililate Vendors
Consumer Attorneys Association of Los Angeles
The assassination of Dr. Martin Luther King Remembering Dr. King and others who peacefully made a difference in our lives. Lisa Maki
On the cover: Main Image: Employees Converse at Water Cooler | Ron Chapple Studios | www.thinkstockphotos.com
The Advocate Magazine — 7
About this issue Norman Pine
Beverly Tillett Pine
Employment and Labor Law A look at the hottest cases and latest rules in employment law Here at Advocate, we are nothing if not up-to-date. By far the hottest employment law case (non class-action) in ages is Harris v. City of Santa Monica (February 7, 2013) 2013 WL 452959. There, our Supreme Court recognized a “mixed-motive” defense under California law and stated that the existing CACI instruction setting forth the necessary causal link (“a motivating factor”) should be replaced by a test defined by whether
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the conduct was “a substantial motivating factor/reason.” We had the privilege of co-authoring the Supreme Court briefing on this subject along with David M. deRubertis who not only took the laboring oar in briefing but, also, brilliantly argued the case before the Supreme Court. While the rest of the world is wondering what this change in jury instructions will mean, we have the benefit of David’s analysis – replete with detailed legal citations to how the Supreme Court has interpreted the identical language in decisions arising in non-employment law contexts. His article is a must-read – and could not be more timely. In this issue, we are privileged to have Andrew Friedman share with us his overview of the most important employment law cases decided in 2012. This handy reference is a must for all employment litigators and all attorneys considering taking on an employment case. To complement Andrew’s overview of the key case law developments in employment law over the past 12 months, we have a companion article penned by Carolina Rose. She has written a piece describing 18 new bills and two new regulations affecting California employees in 2013. All of the new laws took effect on January 1, 2013, unless otherwise indicated. Again, this is a handy reference for all attorneys practicing – or planning to dabble in employment law. Nikki Tolt, a veteran employment lawyer and mediator, has written a piece to demonstrate how to maximize the mediation experience. In these times of court cutbacks and closures, it is essential for every attorney to understand the mediation process and develop effective negotiating skills. This article divulges many useful tips in preparing for
mediation, evaluating cases, and negotiating a satisfactory result for clients. Whereas both clients and jurors are familiar with awarding damages for physical pain, the concept of emotionaldistress damages is more elusive and their monetary valuation is difficult to prove. Vida Holguin has filled that vacuum. She has written an article to walk you through every step of proving maximum emotional-distress damages from the first meeting with your client, through discovery, to obtaining a favorable jury verdict. Iris Weinmann’s article focuses on certain industry-specific and claim-specific hurdles of which employment practitioners should be aware. For example, some types of state claims can only be brought in federal court. Others must be brought in an administrative forum and cannot be brought in court at all. Still others are subject to mandatory arbitration and limited damages. Obviously, it is important to be aware of these variant situations should they apply to your case. Sarah Schlehr and Hilary Rau tackle an often confusing area of law – federal and state leave laws applicable to California employees, including the Federal Family and Medical Leave Act (FMLA); the California Family Rights Act (CRLA); disability, pregnancy and military leave; and a variety of other laws governing an employee’s right to be absent from work. Their article summarizes these laws and shows how they often overlap and interact. In representing employees, it is important to be aware of all potentially applicable laws and to analyze which of them give the specific client the most protection. In addition, we are running the second and final installment of Judge Rita Miller’s comprehensive examination of
See Hot cases, Page 14
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Hot cases — continued from Page 8
general damages in negligence actions. Miller discusses how “gatekeepers” affect recovering damages beyond physical injury. Finally, no discussion of employment law would be complete without acknowledging, as we try to do every year, the winner of the California Employment Lawyers Association’s (CELA) most prestigious honor – the “Joe Posner Award.” This year, the award was bestowed on John Weiss in recognition for his continuous dedication to the advancement and protection of employee rights. — Beverly Pine Concurring appellate justices often say, “I write separately to explain my view that . . .” In this unique issue of Advocate, I, too, find the need to write “separately” in the “About this Issue” column which Beverly crafted. The rea-
14 — The Advocate Magazine
son is simple. As a matter of personal privilege, I write separately to congratulate Beverly for being honored as CAALA’s 2013 “Appellate Lawyer of the Year.” I could not be prouder to see Beverly recognized for what I have known for many years – she is a brilliant lawyer/advocate who, better than anyone I know, always manages to see “the big picture.” Matching those skills with her tremendous empathy for our clients makes Beverly the perfect choice for the honor she just received. Forgive me if I could not let this opportunity to shout my admiration for her slip away. — Norm Pine Norman Pine, a Certified Appellate Law Specialist (SBLS), handles appeals for plaintiffs throughout California. Honors include: Best Lawyers in America (Appellate Law); CAALA’s “Appellate Attorney of the Year” in
2003; CELA’s highest honor, the “Joe Posner Award” (2008); AV rating; Daily Journal’s “Top Employment Lawyers” in California (2009, 2011-2012); and consistent selection as a Southern California “Super Lawyer” in appellate law, including having been named as one of the “Top 100 Super Lawyers” (2009-2013, inclusive). Prior to becoming exclusively an appellate attorney, Norm had 15 years experience litigating complex business matters, both at a plaintiff ’s antitrust firm and at a leading defense firm. Beverly Tillett Pine is a partner in the AVrated firm, Pine & Pine, in Sherman Oaks, California, and focuses her practice exclusively on civil appellate law. She was named Appellate Lawyer of the Year for 2013 by the Consumer Attorneys Association of Los Angeles, and has been selected as a Super Lawyer for Southern California.
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David M. deRubertis
Harris v. City of Santa Monica : A new standard in California Employment lawyers need to examine what the “substantial factor” test really requires For decades in California, the causal nexus standard typically used in employment trials involving claims under California’s Fair Employment and Housing Act (FEHA) was whether the discriminatory or retaliatory animus was “a motivating reason” or “a motivating factor” in producing the adverse employment action. The former standard instructions used the phrase “a motivating factor” (Book of Approved Jury Instructions [BAJI], Instr. No. 12.01.1), while the current standard instructions had used the phrase “a motivating reason.” (Judicial Council of California Civil Jury Instructions [CACI], Instr. No. 2507.) But both conveyed the same concept: the prohibited animus need merely be “a motivating” reason or factor in the ultimate adverse decision. Living in this “a motivating” world, employment lawyers could try cases successfully without knowing about or grappling with the “substantial factor” jury instruction. With the Supreme Court’s decision in Harris v. City of Santa Monica (Feb. 7, 2013) 2013 WL 452959, employment lawyers now need to understand and master the “substantial factor” test every bit as much as their personal-injury trial 16 — The Advocate Magazine
lawyer colleagues do. In Harris, the Supreme Court held that, in mixedmotive FEHA cases (that is, those in which the trier of fact could find that both legitimate and illegitimate considerations motivated the employer’s decision), the “a motivating” reason test is not the proper causal nexus standard; instead, the jury should be instructed that the prohibited trait must have been a “substantial factor motivating” the adverse decision. The purpose of this article is to analyze from a pure legal perspective just exactly what the “substantial factor” test does and does not require. The purpose is not to discuss how to argue the “substantial factor” test to juries. While that is every bit as important, that article will be left for another day. For now, this article analyzes the existing California Supreme Court precedent interpreting the “substantial factor” test and proposes a jury instruction that may be used in FEHA trials to instruct juries on the “substantial factor motivating” causal nexus standard.
Background of the Harris decision
The issue before the California Supreme Court in Harris was whether a
“mixed-motive” or “same-decision” defense exists to FEHA discrimination and retaliation claims. “In a mixedmotive case, however, there is no single ‘true’ reason for the employer’s action. What is the trier of fact to do when it finds that a mix of discriminatory and legitimate reasons motivated the employer’s decision? That is the question we face in this case.” (Id. at *1.) The Court recognized a mixed-motive or samedecision defense to FEHA discrimination claims and held that, if the defense is proven, it is not a complete defense to liability. Instead, a proven mixed-motive or same-decision defense precludes an award of front or back pay, reinstatement and emotional distress damages; however, declaratory and injunctive relief and statutory attorney’s fees remain available. The mixed-motive or same-decision defense was the issue upon which review was granted in Harris. Nonetheless, employer-side amici used the Harris case to push the Court to reject the “a motivating” causal nexus standard and instead replace it with “but for” causation. According to the employer-side amici, this “but for” test they proposed
See Employment, Page 18
Employment — continued from Page 16
would not be met unless the plaintiff could prove that the illegitimate consideration was the main, chief, or predominant factor motivating the adverse action and a factor without which the adverse action would not have occurred. The employer-side amici were aided by a recent United States Supreme Court decision – Gross v. FBL Financial Services, Inc. (2009) 557 U.S. 167. There, the United States Supreme Court interpreted the federal age discrimination statute that uses the same “because of ” language as does the FEHA as requiring a “but for” causal nexus standard. (Gross, supra, 557 U.S. at p. 176.) Fortunately, the Supreme Court rejected the employer-side amici’s pleas to require “but for” causation before a FEHA violation is established. “Given the FEHA’s statement of its purposes and the harms it sought to address, we cannot ascribe to the Legislature an intent to deem lawful any discriminatory conduct that is not the ‘but for’ cause of an adverse employment action against a particular individual.” (Id. at *17.) Instead, Harris adopted what may appear at first blush to be a different causal nexus standard than the “a motivating” standard that had been used and adopted by both the BAJI and CACI drafters. According to Harris, instead of being instructed that the illegitimate consideration must have been “a motivating factor” in the adverse decision, “the jury should instead determine whether discrimination was “a substantial motivating factor/reason” in the adverse action. (Harris, supra, at *18.) So after Harris, one key question is what does the “substantial motivating factor” standard require? On this point, it is key to remember that, historically, case law interpreting “substantial motivating factor” or “a motivating factor” tests have viewed these phrases as relatively synonymous – if not, identical. (See e.g., Ht. Healthy City School Dist. Bd. of Educ. v. Doyle (1977) 429 U.S. 274, 286 [“Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was a ‘substantial 18 — The Advocate Magazine
factor’ or to put it in other words, that it was a ‘motivating factor’ in the Board’s decision not to rehire him.”] [italics added]; Owen v. Thermatool Corp. (2nd Cir. 1998) 155 F.3d 137, 139 [“In the circumstances presented the district court’s use of the phrase ‘substantial factor’ rather than ‘motivating factor’ was not misleading and adequately informed the jury of the law. The words ‘substantial’ and ‘motivating’ are reasonably interchangeable or at least have considerable overlap.”] [italics added]; Field v. New York State Office of Mental Retardation & Developmental Disabilities (2nd Cir. 1997) 115 F.3d 116, 124 n. 4 [“The substantial motivation charge asks only the question posed in the first half of the two-part dual motivation charge: whether consideration of an impermissible reason was a motivating factor in the adverse action taken by the employer.”]; Tyler v. Bethlehem Steel Corp. (2nd Cir. 1992) 958 F.2d 1176, 1181 [“Should the plaintiff wish to prove his case as a ‘mixed-motives’ case, he must focus his proof directly at the question of discrimination and prove that an illegitimate factor had a ‘motivating’ or ‘substantial’ role in the employment decision.”] [italics added].) Thus, historically, when courts have considered whether there is any difference between an “a motivating” standard and a “substantial factor” or “substantial motivating” standard, they have said the difference is slight (if any).
Harris’s rejection of “but for” tells us what the “substantial factor” requirement does not require
To understand what the “substantial factor” test does and does not require, the first step is to consider the impact of the Harris opinion’s rejection of the “but for” standard. Harris summed-up the “but for” test as follows: The City contends that the phrase “because of ” means that an employer’s consideration of a protected characteristic must be necessary to its decision to take the employment action at issue. This notion of causation is commonly called “but for” causation – that is, the employer would not have taken the
action but for its consideration of a protected characteristic. (Harris, supra, at *4.) Citing its decision in In re M.S. (1995) 10 Cal.4th 698, the Harris court noted that there it had rejected an interpretation of the statutory phrase “because of ” in a hate-crime statute as suggesting the “Legislature intended to limit punishment to offenses committed exclusively or even mainly because of the prohibited bias” because “[a] number of causes may operate concurrently to produce a given result, none necessarily predominating over the others.” (Harris, supra, at *5, citing In re M.S., supra, 10 Cal.4th at 716 & 719.) Consistent with In re M.S., Harris similarly observed that the FEHA “does not say that the employment action must be ‘solely because of,’ ‘exclusively because of,’ or ‘predominantly because of ’ improper discrimination.” (Harris, supra, at *5.) The opinion then acknowledged that there will be instances in which the discriminatory animus was a “substantial factor” motivating the adverse action even though discriminatory animus was not a “but for” cause of it. (Harris, supra, at *13.) The Court also made another key point: “We do not suggest that discrimination must be alone sufficient to bring about an employment decision in order to constitute a substantial motivating factor.” (Id. at *16.) From the passages above, we can conclude that a “substantial factor” or a “substantial motivating factor” does not have to be: • The only or sole cause; The predominant or main cause; • A cause that was sufficient alone to have produced the result; or • A necessary cause without which the adverse action would not have occurred.
What is required to meet a “substantial factor” standard
While Harris does not explicitly define its “substantial factor” causal nexus test, the California Supreme Court has defined “substantial factor” for causation purposes in a series of decisions beginning with People v. Caldwell (1984) 36 Cal.3d 210, 220. In Caldwell, in discussing
See Employment, Page 20
Employment — continued from Page 18
what constitutes a “substantial factor,” the Supreme Court stated that “[n]o cause will receive judicial recognition if the part it played was so infinitesimal or so theoretical that it cannot properly be regarded as a substantial factor in bringing about the particular result.” (Caldwell, supra, 36 Cal.3d at 220) (italics added.) In Mitchell v. Gonzales (1991) 54 Cal.3d 1041, the Supreme Court considered “whether BAJI No. 3.75, the socalled proximate cause instruction, which contains a ‘but for’ test of cause in fact, should continue to be given in this state, or whether it should be disapproved in favor of BAJI No. 3.76, the so-called legal cause instruction, which employs a ‘substantial factor’ test of cause in fact.” Though the Court adopted BAJI 3.76 and the “substantial factor” test, it did
not define what “substantial factor” means in Mitchell. Then came Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, an asbestosrelated, personal-injury case involving a jury instruction that had shifted the burden on causation to the defendants. In analyzing that issue, the Supreme Court gave its first detailed discussion of what constitutes a “substantial factor.” The term “substantial factor” has not been judicially defined with specificity, and indeed it has been observed that it is “neither possible nor desirable to reduce it to any lower terms.” (Prosser & Keeton on Torts, supra, ‘ 41, p. 267.) This court has suggested that a force which plays only an “infinitesimal” or “theoretical” part in bringing about injury, damage, or loss is not a substantial factor.
(People v. Caldwell (1984) 36 Cal.3d 210, 220.) Undue emphasis should not be placed on the term “substantial.” (Rutherford, supra, 16 Cal.4th at 970.) Later in the opinion, Rutherford made clear that “[t]he substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause to be more than negligible or theoretical.” (Id. at 978) (italics added.) Two years after Rutherford, the Supreme Court again reaffirmed that the “substantial factor” test does not impose a daunting burden on the plaintiff. (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 79.) In Bockrath, the Court confirmed that the “substantial factor” standard requires “only that the contribution of the individual cause be more than negligible or theoretical,” and that “a force which plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or loss is not a substantial factor, but a very minor force that does cause harm is a substantial factor.” (Bockrath, supra, 21 Cal.4th at 79 [internal citations omitted].) Thus, long before it decided Harris, our Supreme Court has made clear that a “substantial factor” is one that contributes to the result in “more than [a] negligible or theoretical” way. (Rutherford, supra, 16 Cal.4th at 978.)
Proposed “substantial motivating factor” jury instruction
Harris’s adoption of the “substantial factor” test in place of the “a motivating factor” test means that juries in a mixedmotive case cannot be instructed with CACI 2507’s “a motivating reason” instruction any longer. CACI 2507 had stated that “[a] ‘motivating reason’ is a reason that contributed to the decision to take certain action, even though other reasons also may have contributed to the decision. Instead, given Harris’s adoption of the “substantial factor” test, the causal nexus jury instruction should be patterned after the existing CACI defining “substantial factor.” Consistent with the foregoing described Supreme Court authority, 20 — The Advocate Magazine
See Employment, Page 22
Employment — continued from Page 20
CACI’s “substantial factor” instruction reads: “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.” (CACI Instr. No. 430.) CACI 430 is nearly identical to a Judicial Council-approved criminal jury instruction that likewise defines “substantial factor” (Judicial Council of California Criminal Jury Instructions [“CALCRIM”], Instr. No. 620: Causation: Special Issues [“There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.”].) An instruction
22 — The Advocate Magazine
very similar to this Judicial Councilapproved criminal causation instruction has been cited approvingly by Justice Kennard: The “substantial factor” test is explained in a standard Judicial Council jury instruction. As adapted to the situation here, the instruction reads: ‘There may be more than one cause of [great bodily injury]. An act causes [great bodily injury] only if it is a substantial factor in causing the [injury]. A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the [injury].’ (People v. Modiri (2006) 39 Cal.4th 481, 504-505, J. Kennard Dissenting.) Given the Supreme Court’s previous (and consistent) definition of “substantial
factor,” and the existing standard Judicial Council jury instructions defining “substantial factor,” any instruction defining the FEHA’s causal nexus standard should be derived from the existing standard instructions. Thus, the instruction that defines the elements of the claim (i.e., CACI 2500 in a discrimination case or CACI 2505 in a retaliation case) must now state that the protected trait must be a “substantial motivating factor/reason” in the challenged adverse action. Then, in a case involving termination, the instruction defining “substantial motivating factor/reason” – that is, the a replacement for CACI 2507 that defined “a motivating reason”– should look like the instruction below which is derived from the existing CACI 430:
See Employment, Page 24
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A substantial factor motivating the termination is a factor that a reasonable person would consider to have contributed to the termination. It must be more than a remote or trivial factor. It does not have to be the only cause of the termination. (It is important to note that CACI 430 also has an optional bracket that states: “Conduct is not a substantial factor in causing harm if the same harm would have occurred without that condition.” (CACI Instr. No. 430.) This instruction is meant to ensure that the jury finds “but for” causation in cases that do not involve concurrent, independent causes. (CACI Instr. No. 430, “Directions for Use.”) However, because Harris emphatically rejected the “but for” causation standard, CACI 430’s optional bracket that is meant to encapsulate the notion of “but for” causation should not be required in any FEHA causal nexus instruction.) The above instruction is faithful to, and consistent with, Harris. Harris articulated its rationale for requiring the “substantial motivating factor” standard as follows: “Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision.” (Harris, supra, at *18) (original italics.) The proposed instruction satisfies these concerns because it requires the contribution of animus to reach the level that “a reasonable person would consider to have contributed,” while being more than a remote or trivial contribution, such as the “mere thoughts or passing statements unrelated to the disputed employment decision.” (Ibid.) Yet, at the same time, the proposed instruction would not lead to an elevation of the plaintiff employee’s threshold prima facie burden to a level inconsistent with the balance of Harris’s analysis and holding. In contrast, an instruction that requires more of the plaintiff than that articulated above would be inconsistent with Harris’s rejection of “but for” causation and its making clear that
the FEHA’s causal nexus standard does not require that discrimination be the sole, main or predominant cause, or that discriminatory animus be sufficient alone to have produced the adverse action.
While employee-rights’ attorneys would have preferred Harris to reject any mixed-motive defense to FEHA claims (or to permit recovery of emotional distress damages if the defense is proven), Harris’s rejection of the “but for” causal nexus standard produced a sigh of relief. The alternative “substantial factor” standard is one that is not intended, and should not be construed, to elevate the burden on FEHA plaintiffs in a drastic way. As the Supreme Court has itself observed when discussing “substantial factor,” “[u]ndue emphasis should not be placed on the term “substantial.” (Rutherford, supra, 16 Cal.4th at 970.) And, as courts before Harris had noted, “[t]he words ‘substantial’ and ‘motivating’ are reasonably interchangeable or at least have considerable overlap.” (Owen, supra, 155 F.3d at 139.) Modeling the causal nexus jury instruction incorporating the “substantial factor” test after the existing instruction defining “substantial factor” will be consistent with the above principles, faithful to Harris and consistent with previous California Supreme Court authority defining “substantial factor” for causation purposes. David M. deRubertis is the principal in The deRubertis Law Firm, APC, where his statewide practice focuses on employee rights litigation and trials, as well as catastrophic personal injury and contingency business litigation. deRubertis is the youngest ever recipient of the California Employment Lawyers Association’s (CELA) Joe Posner Award, a member of ABOTA, a CAALA Trial Lawyer of the Year nominee, has consistently been named a Top 100 Southern California Super Lawyer and a Top Labor & Employment Lawyer by the Los Angeles & San Francisco Daily Journals, and he and his firm are recognized in both Best Lawyers and Best Law Firms in America, and he is a member of the Board of Governors of CELA and CAOC. He was lead appellate counsel at the California Supreme Court in the Harris v. City of Santa Monica case.
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Maximizing your mediation experience The three fundamentals of settlement are preparation, evaluation and negotiation In this year of the snake, the old Chinese curse, “may you live in interesting times,” seems to be particularly appropriate when assessing settlement options. With the budget crunch faced by the courts, one of the draconian measures that is in the process of being implemented is the closure of the Los Angeles Superior Court’s Alternative Dispute Resolution program, which includes mediation, and which annually processes thousands of cases. In addition, in all the judicial jurisdictions, at varying levels, access to the courts is being affected, resulting in longer times to process disputes and its attendant repercussions. Thus, effective means of processing cases and getting them settled becomes a valued tool in a litigator’s arsenal. When the parties choose mediation as the means of resolution, it has become even more important to make the process effective. Now is the time to hone and put to good use effective negotiating skills to maximize recovery for your clients. The three fundamentals of settlement are preparation, evaluation and negotiation. Good preparation leads to accurate case evaluations and accurate case evaluations facilitate negotiation of prompt and fair settlements. Like so many other key stages of litigation, mediation lends itself to some of the finest advocacy on behalf of a client. Although not every case requires the same attention, every case deserves some attention, no matter how modest the evaluation. Your mediator can only help you maximize the settlement value of your client’s case if you know your case and you come to the mediation prepared with the evidence to support it. 26 — The Advocate Magazine
If the goal is to get the case settled, right from the start, consider as part of your discovery plan, what you need to know to be able to evaluate your case and what the defense team needs to know before making a recommendation to their clients about the value of your client’s claims. Defendants and their attorneys are simply not set up to absorb and react to significant new damages’ information in a mediation without time for reflection. Discovery responses that are devoid of facts to support liability and details to support damages set the wrong tone. This basic notion applies across the board to all genre of cases, be it automobile collision, employment, malpractice, etc. When an insurance carrier is involved, keep in mind that the more paper in the adjuster’s file to justify a settlement, the more likely you will get a good result for your client. Depending on the value of your case, costs must be taken into consideration. Plaintiffs’ costs are more likely to control the outcome of a mediation than on the defense side. For plaintiffs, all of the costs have to be recouped before a settlement figure can even be discussed. This makes a realistic evaluation of the case crucial. From time to time we see attorneys who over-litigate a case that does not have significant value relative to the costs incurred, making settlement far more difficult. On the other hand, doing no discovery sends the signal that your client’s case has nominal value. For example, the decision whether to videotape depositions or rely on declarations should be made early, commensurate with the case evaluation. One tool that
lawyers can take advantage of at no cost at all is the “e-mail declaration.” Although lawyers take pride in crafting declarations that meet the legal requirements of admissibility (for purposes of motions, not trial), an amazingly effective and powerful tool is asking a witness to e-mail his or her version of the facts. Usually written in the vernacular, e-mail communications tend to be far more candid. Often, witnesses otherwise reluctant to sign declarations freely give out information in e-mail format. As obvious as this may seem, make sure your client’s written discovery responses are accurate! For that matter, make sure your pleadings and your discovery responses are in sync. Or if you discover an error in your operative complaint when you respond to discovery, be aware that this discrepancy needs to be addressed. And when preparing your client for deposition, make sure they know what their written discovery responses say on key issues such as liability and damages. In an amazing number of cases, the key ammunition used by the defense to reduce the value of a claim is the discrepancies between the pleadings, the written discovery and the deposition testimony.
Issues at the mediation
In a recent survey of mediators, one of the top ten peeves identified by mediators is the failure of the parties to bring the evidence to the mediation! And for goodness sake, don’t forgo doing a mediation brief – no matter how brief! Presumably you have engaged a mediator who is conversant with the
See Experience, Page 28
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Experience — continued from Page 26
subject matter, so if time or resources are limited, skip the law and give them the facts. Don’t forget that your mediator doesn’t know anything about the facts or your client before the mediation, so if those key ingredients to a mediation remain a mystery until you arrive at the mediator’s office, an opportunity is lost. A mediator who is armed with the facts is a far better advocate for your client than one who starts the process in the dark. A mediator is only human, with all the attendant frailties. Most likely your mediator is a lawyer trained to analyze evidence. Don’t underestimate the power of persuasion that emanates from a mediator who is armed with evidence that supports your client’s case. If you submit nothing or the equivalent of nothing, the perspective the mediator will have coming into the mediation is the one presented by the defense. The defense rarely fails to present its side, in detail, before the mediation. Plus, your presentation to the mediator establishes your credibility as an advocate who is prepared to prosecute the action on behalf of your client. As basic as this sounds, read your own client’s records! Over and over again attorneys appear at mediations without having read their client’s medical records or employee personnel files. You need to know if there are factors in those records that will enhance or diminish the value of your client’s case. If the case value does not warrant getting a copy of the records the defense will surely subpoena, send your client down to the doctor’s office to get a copy of the records (generally free or a nominal copy charge) or have them ask for a copy of their personnel files (under the Labor Code, the employer must provide copies of all documents signed by the employee and they must allow the employee access to the entire file for review). If you are blindsided by facts you learn about for the first time in mediation, not only will your evaluation of the case most likely be skewed, but your client’s expectations most likely will not be in line with the true value of the case. This can lead to having a very unhappy client. On the
other hand, if you have read the records and you have a client who can’t or won’t acknowledge the issues presented by those records, your mediator is there to aid you with your client’s expectations. You should alert the mediator to the concern either in a pre-mediation telephone call or in a separate caucus at the commencement of the mediation so that the mediator is prepared to assist you. Often neglected is a full presentation of the effect of the injury on the client. While the medical bills and records can tell part of the story, they are not designed to paint a picture about the effects of an injury on the daily life of your client. When your client tears up because she can’t bend down to pick up her toddler anymore due to her back injury, or when your elderly client is depressed because he has had to give up the one activity he enjoyed in retirement – taking long walks, because of his broken hip, those details matter. Adjusters see hundreds of claims and insurance companies evaluate based averages culled from huge amounts of data from settlements and verdicts. The attorney who most convincingly distinguishes a client’s claim from the “average” will get the best result for that client. This requires searching out, identifying and communicating those factors in your client’s case that are unique and add value to the case. In employment cases, particularly in this economy, jobs are hard to find, especially for older workers. The client is often depressed and may present with a flat affect. It may take a family member or close friend to describe the devastating effect of the termination on your client. Often the client has no insurance as a result of the termination and cannot afford to see a mental health professional – be prepared to counter the common defense argument that without evidence of treatment, the emotional distress damages cannot be significant. Malpractice cases, be it medical or legal, at their core involve a breach of trust. These are often very emotional cases on both sides, with the defendant
See Experience, Page 30
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Experience — continued from Page 28
often also feeling betrayed, in addition to being convinced they did nothing wrong. Consent to settlement is often the key to resolving these claims – your mediator must be sensitive to these dynamics. Because these cases are often expert intensive, resolution may not be possible without this evidence available at the mediation.
Maximize the impact of evidence
There is a delicate balance between the information shared before the mediation and during the mediation. The basic nuts and bolts of your case should always be shared with the defense well before you arrive at the mediation, particularly if there is an insurance carrier involved. Make sure the defense has all the medical
reports, the property damage pictures, the lost earnings documentation and any other hard data that will be used by the defense to come to an initial evaluation. When basic data supporting your client’s claim is not provided in time to have the information evaluated, you practically guarantee the case will be mis-evaluated. The most effective use of your mediator is in conferring with him or her about how to address the evidence. Use your mediator as a sounding board before you get to the mediation. In complex and/or high value cases, consult with the mediator about how best to present your evidence at the mediation. For example, should the evidence be addressed in a joint session or not? Some evidence is too inflammatory to be
effectively discussed in joint session, such as in a sexual harassment case. On the other hand, in automobile accident cases, the adjuster has often not met their insured and sharing a video clip from the deposition of the defendant who comes across poorly may dramatically alter the evaluation (even if the defense attorney has candidly reported that the insured is a poor witness, that information may not have worked its way into the evaluation). Conversely, avoid the temptation to oversell weak or marginal items of claimed damages. It affects your credibility and undermines your negotiating position. If there is evidence that you have not shared with the other side for tactical reasons, such as witness declarations or e-mail declarations, confer with your
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mediator about when and whether to share that information. Most seasoned mediators want to control the flow of evidence from one party to another to maximize its effectiveness. Sometimes evidence is held back until the mediator gets a feel for how serious the defense is about settlement. Other times it is held back to use as an impasse breaker or to help with the push for the closing number. And sometimes, sensitive evidence is given to a mediator and never used because the mediator assesses the dynamics and determines that the information will stall discussions rather than advance them. For example, your client may be privy to an extramarital affair by her former boss, but her claim is based on her whistleblower status. While discussing the affair might have some tangential evidentiary value if the case continued being litigated, the mediator may determine that humiliating and embarrassing the defendant is not the most effective way to extract a maximum recovery and not address the issue with the defense. Likewise, if the defense attorney has made a tactical or legal error, how that information is used, if at all, can be very sensitive. It is rarely advantageous to undermine an attorney’s credibility in front of his or her client. If the issue is key to the resolution of the case, how and when the information is conveyed to the defense can be crucial.
Be polite, professional and candid
Simple, but effective. Attorneys often forget the human factor in evaluating cases. Whether the defense team includes an adjuster or a CEO, how that person is treated can have an impact on what the defendant pays. It is understood that you will be your client’s advocate, but equally important, be prepared to listen. Most attorneys consider themselves to be good communicators and, therefore, good negotiators. Many attorneys believe that listening means simply maintaining a polite silence while rehearsing in their own minds the diatribe they want to deliver as soon as it is their turn to talk. Artful listening, on the other hand, can be a powerful negotiating tool.
Whether in a joint caucus or perhaps in a meeting with only the attorneys and the mediator, really acknowledging what the other person has to say and trying to assess the issues from the other person’s perspective can be not only effective in terms of the response you will get from your adversary, but also in evaluating your client’s case and developing a strategy to maximize its value. Really listening to the other side helps identify what factors are important to the other side’s position and that information can provide areas of compromise to reach a satisfactory conclusion. Similarly, candor about a weakness in the case often garners respect from the other side and more importantly, calls for reciprocal behavior that can be the key to settlement. Keep in mind that all case evaluations are subjective. Each side has their opinion which ultimately can only be tested by a jury, which will have its own, collective opinion. However, seasoned lawyers understand that based on general probability parameters, there is a reasonable settlement range and the goal is to get as high a number in that range as possible.
Document your agreement
If your mediation is successful and agreement is reached, make sure the key terms are documented and signed off by the parties in a writing that has the magic words to make it admissible if it is necessary to enforce the agreement under Code of Civil Procedure §664.6: The parties herein agree that they have reached a full and final settlement of all claims. This Settlement Agreement contains the material terms of the agreement between the parties and is enforceable under Code of Civil Procedure section 664.6. Pursuant to Evidence Code section 1123(a), the parties agree that this Settlement Agreement is exempt from the confidentiality provisions of Evidence Code section 1152, et seq. and is admissible in evidence to enforce the settlement. Never leave a mediation without a document signed by the parties. Ideally, the final settlement agreement will be
brought to the mediation so all terms and conditions can be hashed out. In the alternative, at a minimum, do make sure your term sheet has all the material terms. Don’t wait until the last minute to raise issues about secondary issues that can often be very contentious, such as terms of payment, payment plans, arbitration clauses, confidentiality, liquidated damages, letters of recommendation, whether or not the settlement contemplates a resignation, pension buy-ins, return of evidence, non-disparagement and a whole host of other issues aside from the actual amount of the settlement. If the defendant is a governmental entity, there are specific rules that apply to them too detailed for this article, but generally, each entity has a claims process that requires varying levels of scrutiny and review and often can take weeks and months to get a settlement finalized. It is important that you understand the process for the particular governmental agency you are dealing with or you may end up with an unhappy client when the closure process takes far longer than he or she anticipated. A mediator knowledgeable about the ins and outs of settling with governmental agencies can help with ferreting out this information and making sure that realistic expectations are set. Hopefully collection is not one of your worries! Ultimately, mediation may be your client’s day in court. Take charge and make it an important day in your client’s case – the result will be satisfying for you and your client. Nikki Tolt has been a trial lawyer since 1983 when she graduated from Loyola Law School. She founded ACT Mediation in 1996. Since that time, she has mediated thousands of cases in a wide variety of areas including personal injury, employment (including wage and hour), various forms of professional malpractice, contract disputes, real estate and insurance matters. A sustaining member of CAALA for almost 30 years, Ms. Tolt was named one of the top mediators in California in 2008 and 2012. Her office is in Beverly Hills where she maintains comfortable facilities for mediation. APRIL 2013
The Advocate Magazine — 31
Getting the most for emotional-distress damages in employment and PI The trial of a lawsuit is in the telling of a story — and an appeal for empathy Every employment and personal injury case involves pain. Every such case should also be evaluated for emotionaldistress damages from the moment the potential client walks in your door. Proving emotional-distress damages begins with your initial intake questions and ends with your final argument to the jury. While this article will emphasize trial testimony, all phases of litigation as they relate to emotional-distress damages will be briefly reviewed.
Observe your potential client. Does the client show signs of distress or disability? Are the facts viable for an emotional-distress claim? Do you believe the facts will support such a claim? What evidence or witnesses would support the client’s emotional-distress claim?
Interview witnesses identified by the client and inquire into their observations of your client’s distress. If the client has a history of mental health and/or physical medical treatment, obtain not only the records, but talk to the treaters with any questions regarding those records. Search for “me too” evidence.
Based upon your investigation and the facts, decide whether you want to limit emotional-distress damages to “garden variety” normal distress damages. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.) Or, do you want to allege unusual or particularly 32 — The Advocate Magazine
serious elements where prior history could be directly relevant? CACI 1604 defines “severe emotional distress” as including “suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame.” A plaintiff is required to show that this distress is “not mild or brief,” but rather, is “so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it.” By definition, the length of time the emotional distress and its effects continue is directly relevant, and plaintiff is required to introduce evidence as to these issues. The complaint allegations should be sufficient to defeat a demurrer, but you also need to consider whether you are creating discovery problems by including too much.
Spend time during discovery identifying witnesses who can tell you what your client has endured. The client may name a parent, a spouse, a sibling, a coworker or best friend. You need to interview them personally to identify the best witnesses. You then disclose them if requested in discovery. In response to interrogatories and document requests, the employer also may identify witnesses. You want to depose them.
While many articles talk about the three confidences, the five rules when answering questions [short answers, to the point and don’t detour, avoid gratuitous statements, be cooperative] and the cardinal rules of how a client presents
him/herself [avoid body language, don’t anticipate, explain, editorialize or judge], basically all the client needs to know and remember is the theme of the case and that truth is the client’s armor. Promote confidence in your client and in your client’s story, including confidence in the jury to see the client’s story the way the client does – to “step into your shoes.” (Karen Koonan, NJP Litigation Consulting; see also, “New Book Damages 3” by David Ball ©2011.) Reiterating the theme of the case will provide not just comfort in knowledge of the process, but also will support emotional-distress damages. In one of my first trials, a criminal assault and battery case, I met with the detective who would be testifying. When I asked him about the facts, he asked me what I wanted him to say. Either he was used to lawyers putting words in his mouth, or he was fearful of making a mistake and saying the wrong thing, or both. I told him that I only wanted the truth, that the truth would keep him safe, that if he lies about anything, he may forget the small points and get tripped up. It was my job, once I learned the truth, to work with him on his responses so that he felt safe. The same is true for deposition preparation. Prior to deposition, I usually send a DVD to the client explaining the deposition process with sample questioning. Both CELA and the Wisconsin State Bar have videos for sale. I then meet with the client at least two or three times for as many hours as possible to discuss the
See Story, Page 34
Story — continued from Page 32
process, to identify and deal with client fears, and to go through a mock deposition covering key points. The amount of time you spend in preparation depends on the condition of your client. For some clients, their disability case may limit the amount of time you can meet with them. In these situations, you may be required to meet five or six times to prepare for deposition. Defense attorneys do not spend much time on emotional-distress damages in deposition, but it is covered. Do not be hesitant to make a Rifkind objection if defense counsel starts going through a laundry list, e.g., tell me all the doctors whom you have seen. (Rifkind v. Sup. Ct. (1994) 22 Cal.App.4th 1255 [improper to ask for legal contentions and the evidence supporting legal theories such as causation and damages].) Also consider Britt privacy objections. In Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 859, the Court held that the implied waiver of the right to privacy in a personal injury lawsuit is narrowly construed and concerns only discovery that is directly related to plaintiff ’s claims and essential to fair resolution of the case. (See also, Davis v. Sup. Ct. (1992) 7 Cal.App.4th 1008, 1015-1018 [“garden variety” auto case requesting damages for pain and
suffering precluded discovery of mental health history when treatment concerned only physical injuries].) While deposition may not be the client’s opportunity to tell the whole story, the client needs to be able to articulate the extent and severity of past and current pain. Tell the client to have faith that you will protect him or her in the deposition.
This is your opportunity to introduce the subject of emotional-distress damages. You need to lay the groundwork for your case. You may start with such topics as, how the jurors feel about their jobs; if work provides satisfaction through recognition or reward; how it affects their lifestyle (e.g., friends at work; discussion of loss to person not just pocketbook). You need to flush out any feelings or beliefs that would affect their ability to award emotional-distress damages. You do this through open-ended questions like, “What do you think about our legal system that permits the award of damages for mental or emotional suffering?” Try to get the jurors to talk about their views and listen. Look at the juror’s profession or whether they
volunteer. Caring people tend to care about others’ pain; while people who exclude emotion from thinking tend to decrease emotional-distress damages. For example, in a defamation case, ask if anyone has lied about them and how they felt when they learned that someone had lied about them; what do you think about people who lie about other people; what do you think should be done about them; do you think that people who lie about others and damage their reputation should be punished? The emotional-distress questions should be tailored to the facts of your case. Ask the jurors what sort of things would be important to him or her in considering how much money to award on verdict and then follow up, e.g., tell me about that. (See also, Blue’s Guide to Jury Selection, 2012 ed., by Lisa A. Blue, Robert B. Hirschhorn; Jurywork Systematic Techniques, 2d, 2012-2013 ed., by NJP Litigation Consulting [formerly National Jury Project].)
Remember your theme. Common themes are taking responsibility and/or corporate greed. Taking full responsibility
See Story, Page 36
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Story — continued from Page 34
applies not only to liability, but also to damages. Stick to your facts and try to start each sentence with the defendant’s name. In telling the story of what happened, it should be exclusively concerning what the defendant did. Try to think of your opening as a narration of what someone would have seen or heard if there. Jurors also want to know the rules, but you should not mention more than one or two, e.g., any employer who hires employees to work for them must pay for that time; if it does not, the employer is responsible for the harm. Two-thirds of the way through opening, you talk about harms and losses. Mention that any verdict involves money. Since the only things the jury is allowed to take into consideration are the harms and losses, you must lay out for them the harms and losses. Explain the injuries, the recovery process, the impact of the harm on your client’s mental well-being and any resulting limitations. Explain that you are not going through these damages for sympathy. Rather, it is important for them to understand the harms and losses in order that they may make a fair award that simply matches and equals the harm caused by defendant.
Many lawyers are so bombarded by motions that by time of trial, they have not taken the time to adequately prepare their clients for testimony – especially with regard to emotional-distress damages. However, if they have addressed the issue of emotional-distress damages throughout litigation, by the time of trial, they know their client, the positives and the negatives. The problem is that they take the most powerful element of their trial – the client – and fail to effectively prepare the client. Every lawyer needs to know how to emphasize the positive to make the client likeable and empathic to the jury. Prior to trial, it is important to sit down with the client and ask what the client is expecting at trial. This is your opportunity to identify and clarify any misconceptions the client has about the process. Often, the client harbors feelings 36 — The Advocate Magazine
of guilt or shame. Explain that truth is the safety net, especially when facing repetitive questions. The basic tenet is that if you lie, you lose. Review the theme of the case. The theme is the lens through which the jurors will look at everything in the case. Let your client see the big picture, explaining what the law requires to win. Review the jury instructions with the client and explain them – education is key. Go over the basics of outward appearance – no distraction: • Posture: no crossed arms; no slouching, etc. • Clothing: no red, no large prints, no bow ties • Jewelry: no distractions; no dangling earrings, no diamonds, no watches, no noise Explain to your client that this is finally his/her opportunity to tell their story. The client is having a conversation with the jury – not the lawyers. Have the client talk to a group of people to get comfortable in telling the story. It is the lawyer’s job to let the jury know the client. Start with the client’s background. Start with family – immigrant? barriers? events shaping life? Move to the client’s work history if relevant, and then to the circumstances of the client’s hire: how or why did client come to work for company? Talk about the client’s skills – before employment and acquired during employment; inquire into the client’s expectations of the job, career, and the company; talk about the client’s dedication and loyalty; and, if disabled, discuss the client’s ability to perform the essential functions of the job. The jury’s decision is based on information you give them. When describing the events or unlawful conduct, your client should testify confidently about the facts. You help the client by framing the questions, but the client should feel safe in talking about the events. Prepare your client for objections, explaining that they should not be taken personally. In preparing your client for testimony, help the client analyze what is being asked: work with question after question after question.
In testimony about the unlawful conduct, the client needs to address its effects and how conduct invaded all facets of life. The testimony should be a genuine display of emotion when describing losses to person as well as to pocketbook. The client needs to share the emotions that will help the jury identify with the client, e.g., sincerity, earnestness, civility, disappointment, sadness, feelings of betrayal, etc. In voir dire, you may have touched on common experiences; you should cover those again with your client. Corroborate your client’s loss through family, friends, and/or co-workers. In preparing your client for crossexamination and intimidating or tough questions, talk about defensive and argumentative responses. Preparation is paramount. If your client is not prepared, everything is intimidating. Also, fearfulness could come across as dishonesty. Again, cover the guilt issues – does the client feel like he or she did something to be ashamed of? Dispose of these matters and build your client’s confidence in him/herself and in the jury. The client’s tools on cross-examination are: truth, knowledge, confidence, storytelling. Avoid anger – it makes the jury uncomfortable. The final piece of preparation should be a mock video where you take about 10 to 20 minutes of mock crossexamination. Have a second lawyer do the cross-examination with you observing. Afterwards, analyze the responses on the video. Again, preparation is key. End the direct examination and redirect with easy questions to bolster client confidence. Finally, watch out for TMI – too much information. Remember that a jury hears about 60 percent of what you say…and remembers even less. Get to the point.
Placing a dollar value on pain is subjective. Yet, sometimes you gain more from arguing pain than in arguing any other kind of damages. Remember that every juror has experienced pain. This can help you or haunt you. But you cannot
See Story, Page 38
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Story — continued from Page 36
discuss personal injury, wrongful termination or discrimination without discussing pain. Plan to spend at least 50 percent of your closing argument talking about damages. Walk the jury through
the emotional-distress-damage jury instructions in plain language. Tie the evidence to those elements either through witness testimony or documentary evidence or both. Distinguish pre-
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existing emotional-distress issues if applicable. Emphasize that you are seeking only compensation for the damages caused by the defendants. Remember, you are trying to get the jury to walk in your client’s shoes with analogies to their pain and suffering. What is the loss of one’s profession worth or one’s identity or self-image? Most people do what they can to forget about pain. But for some – including your client – that pain will be with them from the time of the wrongful conduct. Explain how the harm reverberates throughout every aspect of daily life. The jury must consider first the level of harm that your client has suffered in the past and will continue to suffer in the future. (CACI 3905A) (See below for case discussions.) This area should not be shortchanged. You cannot discuss pain without appealing to empathy (as opposed to sympathy) as well as addressing reprehensible corporate conduct. “Those who deny freedom to others, deserve it not for themselves….” (Abraham Lincoln [Letter to Henry Pierce, et. al., August 6, 1859].) Remind the jurors that their important job is to find out how much money to compensate and to determine the right balance between damages for pain and emotional-distress damages. You also must remind the jury that certain matters must not be considered as they are not addressed in jury instructions. Things like, “Who is going to pay for the damages? How will awarding emotional-distress damages make the plaintiff better?” Let the jury know that these factors undermine the legal process of their deliberations and lead to a dishonest verdict. The lawyers and the judge handle most verdict issues after the verdict is issued. It is not their job to consider these non-factors. In fact, it is unfair for them to consider them. Rather, jury deliberations need to follow the law, which they said they could do during voir dire. Finally, since the defense will argue the issue of sympathy, you need to address it first. Again, sympathy is not what your client is looking for and
sympathy is inadequate. The client wants justice and what is fair under the law. That means that emotional-distress damages should equal and match the harm. Your goal is to get the jury to feel the suffering which your client has endured so that it can be turned into a just and fair verdict. You want not just a verdict where the defendant is held responsible, but held fully responsible.
In February 2012, in Chopourian v. Catholic Healthcare West, a Sacramento federal jury in an Eastern District Court brought in a verdict of $167 million (later reduced to $82.3 million), with $39 million in non-economic/emotionaldistress damages. Ms. Chopourian, a whistleblower, claimed severe emotional distress before and after her termination, including sleep problems with nightmares, digestive issues, depression and anxiety and premature menopause. Plaintiff ’s counsel presented a video montage of key hospital leaders who told four different stories of how the decision to terminate Ms. Chopourian was made. Based upon defendants’ differential and retaliatory treatment of Ms. Chopourian and false statements about her, she was unable to find work; she lived on loans and unemployment benefits. Clearly, $39 million in emotional-distress damages was meant to send a message. To date, this verdict is believed to be the largest single-employee verdict in U.S. history. In August 2012, in Marlo v. UPS, Inc., a federal jury in the Central District of California in a wrongful termination and intentional infliction of emotional distress case awarded $500,000 in emotional-distress damages [$1.7 million economic and $15.8 million in punitive damages – punitive later reduced to a 3x ratio]. Plaintiff, a 22-year employee with a good work record, had made safety complaints and had a wage/hour matter against UPS. UPS terminated him days before his wage/hour trial in 2009 for bogus reasons. Plaintiff ’s coworkers testified about plaintiff ’s physical and emotional changes after his termination. In particular, plaintiff had lost significant
weight, and his hair grayed. There was no medical testimony. In October 2012, in MacDonald v. Ascent Media Group, Inc., a Los Angeles Superior Court jury awarded over $400,000 in economic damages, but only $25,000 in emotional-distress damages. Plaintiff alleged that he was wrongfully terminated in violation of public policy for reporting his boss’s drug use; that plaintiff was fired in order to protect the reputation and employment of his boss so that a pending merger with a larger company would be completed successfully; there is little information as to what the emotional-distress damages were other than garden variety.
Some relevant case law
Bihun v. AT& T Information Systems, Inc. (1993) 13 Cal.App.4th 976 is often cited for the “me-too” evidence issues. However, it should be noted that defendants on appeal also challenged the jury’s award of emotional-distress damages of $662,000 for past and future emotional distress. Bihun was not a case of “garden variety” emotional-distress damages. Plaintiff was a victim of sexual harassment where the harassment occurred in the mid-1980s, but the trial took place years later. The Court of Appeal upheld the emotional-distress damages and approved evidence from plaintiff ’s expert. The expert testified that people who have been sexually harassed in the work place continue to be affected psychologically as they continue to go through life.” (Id. at 995.) In Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, the plaintiff complained not only of headaches, chest pains, loss of appetite, but also attempted suicide arising from discriminatory treatment dating back to 1979-81. A psychiatrist examined Watson in 1987 and diagnosed her as suffering from a severe psychiatric disorder which had grown progressively worse since 1981. The doctor predicted that Watson would require intensive medical treatment in the future, including medication and possibly hospitalization. The Court of Appeal overruled challenges to
the jury’s award of $1.5 million ($383,000 of which was for past and future lost earnings). The court concluded that the damages awarded were not excessive in view of the substantial and severe harm Watson suffered over a number of years coupled with her disability from work generally and from working in an area which she found so emotionally rewarding. (Id. at 1294.) It is well established that “[t]he psychological benefits of work are intangible, yet they are real and cannot be ignored.” (Squires v. Bonser (3d Cir. 1995) 54 F.3d 168, 173; see also Kuper v. Empire Blue Cross & Blue Shield 2003 US Dist. LEXIS 2362; 2003 WL 359462 (S.D.N.Y. 2003) [a jury could believe that a plaintiff suffered humiliation due to his emotional testimony because he was a credible and sympathetic witness whose work was an essential element of his identity/selfesteem].)
The trial of a lawsuit is the telling of a story. Introduce your client, chronicling ordinary background events – telling the truth, not hiding the warts, detailing the bad conduct and the injuries, discussing life before and after. Your job is to structure the proof and deploy the evidence in such a way that the jury has an opportunity to find maximum emotional-distress damages for your client. Justice is not determined by counting up the arguments, but by determining which side’s arguments make sense and call for a result that is consistent with legal and equitable principles. Vida Holguin is a graduate of the University of San Francisco and Boalt Hall Law School, UC Berkeley. Ms. Holguin has litigated numerous complex litigation matters resulting in substantial verdicts and settlements. Her background in labor law stems from her father’s construction company and union issues; her background in employment law began with Tyre & Kamins in Century City and expanded with Hughes Aircraft Company when it had 80,000 employees in California. In 1990 Ms. Holguin opened her own office in the South Bay and currently practices in Hermosa Beach. APRIL 2013
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Andrew H. Friedman
The best and worst employment cases A brief overview of the cases that shaped the year in employment law
As 2013 begins, we should reflect on some of the best and worst employment cases of 2012 and consider how they can help and/or hurt our clients during the coming year. Luckily, 2012 brought us more pro-employee cases than usual. Given that the courts are now deciding employment cases on a nearly daily basis, there were quite a few candidates for inclusion in this article. The cases highlighted here are neither necessarily the best nor the worst, but the ones that I believe would be of the most utility to the employment litigator. My screening process purged many deserving arbitration, class action, and Private Attorney General Act (“PAGA”) cases because they have lately tended to have extremely short shelf-lives. Finally, I eliminated those cases that have received so much publicity that everyone is bound to know about them. (See e.g., Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (clarifying California meal and rest 40 — The Advocate Magazine
break requirements and, in an important concurrence by Justice Werdegar – possibly foreshadowing the outcome in Duran v. U.S. Bank National Assn., (S200923) – opining that “[r]epresentative testimony, surveys, and statistical analysis all are available as tools to render manageable determinations of the extent of liability [in wage and hour cases].”)
Rather than litigating fairly and winning or losing on the merits, some defense counsel prefer to win by hook or by crook. Unfortunately, some courts have been happy to oblige. No place is this more true than in employer efforts to force employees into binding arbitration while, at the same time, precluding them from bringing their claims as class/collective actions. Although 2012 brought a raft of cases on this subject, both pro-employee and anti-employee, I want to mention just two tiny rays of
light on this front. First, the National Labor Relations Board (“NLRB”) issued a fantastic decision – D.R. Horton (Jan. 3, 2012) 357 NLRB No. 184 – holding that the National Labor Relations Act (“NLRA”) renders class-action waivers in employment contracts unenforceable. While the courts have split on whether or not to apply D.R. Horton, a nice bookend is 24 Hour Fitness, Inc. and Alton J. Sanders, NLRB Case No. 20-CA-035419 (Nov. 6 2012). In 24 Hour Fitness, an administrative law judge applied D.R. Horton and held that the company’s arbitration agreement barring class actions was unlawful under NLRA in spite of a clause in the policy allowing employees to opt out of it if they did so within 30 days of hire. These decisions strongly suggest that most employment attorneys need to bone up on the NLRA and learn how to file unfair labor act charges with the NLRB.
See Best & Worst, Page 42
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If you are unlucky enough to be stuck in arbitration, the massive odds against you improved a fraction last year with Richey v. AutoNation, Inc. (2012) 210 Cal.App.4th 1516. Avery Richey, a sales manager at Power Toyota of Cerritos, was fired four weeks before the expiration of his approved medical leave under the Moore-Brown-Roberti Family Rights Act (“CFRA”). Richey sued Power Toyota’s parent company, AutoNation, Inc., alleging that his rights under CFRA had been violated. His claims were then submitted to arbitration under the terms of a mandatory arbitration agreement. AutoNation argued that it fired Richey because it believed that he was misusing his leave by working part time in a restaurant he owned. The arbitrator
denied Richey’s CFRA claim based on the so-called “honest belief ” or “honest suspicion” defense. The trial court denied Richey’s motion to vacate the arbitrator’s decision and granted AutoNation’s petition to confirm the award. The Court of Appeal eviscerated the absurd “honest belief ” defense and reversed: The honest belief defense accepted by the arbitrator is incompatible with California statutes, regulations and case law and deprived Richey of his unwaivable statutory right to reinstatement . . . This clear legal error abridged Richey’s statutory rights under CFRA – rights based on, and intended to further, an important public policy. Accordingly, under the
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principles set forth in Armendariz v. Foundation Health Psychcare Services, Inc. and Pearson Dental Supplies, Inc. v. Superior Court, the award must be vacated. [Editor’s Note – Shortly after this article was written, the California Supreme Court granted review in Richey, which automatically depublishes the Richey opinion.] Assuming you can leap over the arbitration hurdle and make it to the courthouse, you have to hope that the doors have not already been slammed shut by the most pro-business U.S. Supreme Court since the 1930s (and, if you don’t believe me, ask Erwin Chemerinsky, Dean of the University of California, Irvine School of Law (see
See Best & Worst, Page 44
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Best & Worst — continued from Page 42
http://www.ocregister.com/news/court371253-chemerinsky-supreme.html).) In this regard, the lower courts have been using the Supreme Court’s “terrible twosome” – Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544 and Ashcroft v. Iqbal (2009) 556 U.S. 662 – to unfairly dismiss many meritorious cases at the pleading stage. The Ninth Circuit’s decision in Sheppard v. David Evans & Assoc. (9th Cir. 2012) 694 F.3d 1045, however, should staunch some of the bleeding caused by Iqbal/Twombly. In Sheppard, the Ninth Circuit reversed the dismissal of an Age Discrimination in Employment Act (“ADEA”) lawsuit for failure to state a claim under Federal Rule of Civil Procedure 8(a)(2). In doing so, the Ninth Circuit commented that “in many straightforward cases, it will not be any more difficult today for a plaintiff to meet [her] burden than it was before the [Supreme] Court’s recent decisions [in Iqbal and Twombly].” (Id. at 1050 (internal quotations omitted.) Plaintiff ’s counsel confronting arguments that the complaint is not sufficient under Iqbal/Twombly should cite Sheppard for its approval of cursorily-pled employment claims.) Of course, when the Supreme Court hands you a pair of lemons, you should make lemonade. In this case, that means using that old adage “what’s good for the goose is good for the gander” and asking the courts to apply the heightened “plausibility” pleading standard set forth in Iqbal/Twombly to the boilerplate affirmative defenses alleged by most defendants. And that is precisely what a pair of judges did in Gonzalez v. Heritage Pac. Fin., LLC (C.D. Cal. 2012) 2012 WL 3263749, and O’Sullivan v. AMN Services, Inc. (N.D. Cal. 2012) 2012 WL 2912061. In Gonzalez, the Honorable Judge Otis D. Wright II explained that an FRCP 12(f) motion to strike affirmative defenses is both appropriate and warranted where defendants assert “boilerplate” affirmative defenses with no supporting facts. Similarly in granting an FRCP 12(f) motion in O’Sullivan to strike the affirmative defenses contained in a complaint that had been removed from state court, Magistrate Judge Joseph C. 44 — The Advocate Magazine
Spero of the Northern District of California explained that “boilerplate” affirmative defenses should be stricken not only because such defenses fail to comply with the Federal Rules of Civil Procedure but also because they will subject plaintiffs to expensive and potentially unnecessary and irrelevant discovery. As an aside, I also recommend that plaintiff employment attorneys challenge boilerplate affirmative defenses in state court by way of demurrer. Another “bar the door” tactic used by defendants is to argue that court lacks jurisdiction to hear the lawsuit because the plaintiff failed to properly exhaust his/her administrative remedies. Ever since Phyllis Cheng became the Director of the California Department of Fair Employment and Housing (“DFEH”), she has attempted to implement common-sense, twenty-first century technological solutions (such as the Department’s online automated right-tosue system) to ease the administration exhaustion requirements of the Fair Employment and Housing Act (“FEHA”). Unfortunately, these technological solutions have provided fodder with which defense attorneys have argued that there was a failure to exhaust. In Rickards v. United Parcel Service, Inc. (2012) 206 Cal.App.4th 1523, CAALA member Carney Shegerian filed his client’s DFEH complaint through the DFEH’s online automated system. Paul Hastings, representing UPS, moved for summary judgment on the ground that Carney failed to properly verify Mr. Rickard’s DFEH complaint. That is, Paul Hastings argued that Carney’s electronic submission of his signature through the DFEH’s automated right-to-sue system was insufficient. Apparently, Paul Hastings believed that Carney should have printed out the complaint generated by the DFEH’s online automated system, taken a hand-cut goose quill pen, dipped it into his gold or silver inkwell, signed the complaint, and then had a white-gloved messenger in horse-drawn carriage personally deliver it to the DFEH. Although the trial judge was fooled by the defendant’s chicanery, the Court of Appeal sensibly
concluded that Carney had properly filed Mr. Rickard’s complaint. If an administrative exhaustion argument is futile, employers will argue that the plaintiffs’ claims are precluded because they aren’t technically “employees” and, therefore, they are not protected by any employment laws. Twentytwelve was a good year for plaintiffs seeking to avert such arguments. For example, in Fitzsimons v. California Emergency Physicians Medical Group (2012) 205 Cal.App.4th 1423, the Court of Appeal held that non-employee partners may assert FEHA claims for retaliation for opposing the harassment of employees. Equally favorably to plaintiffs, in Ruiz v. Affinity Logistics Corp. (9th Cir. 2002) 667 F.3d 1318, the Ninth Circuit held that California law (rather than the less employee-friendly laws of other states dictated by contractual choice-of-law provisions) must be applied when determining whether a plaintiff is an employee or an independent contractor. A non-employment case – Monarrez v. Automobile Club of Southern California (2012) 211 Cal.App.4th 177 – helps explain why plaintiffs want California law to be used in employee versus independent contractor determinations. In Monarrez, the Court of Appeal enunciated multiple principles helpful to plaintiffs including: (1) the label placed on the relationship between the parties is not dispositive; (2) if one of the parties has the right to control and supervise the actions of another (even if that right to control is not exercised and there is no actual supervision), the relationship is one of employment rather than independent contractor; and, most importantly, (3) the right to terminate the relationship at any time is the single most important factor in showing that the relationship is that of employer-employee. [Editor’s Note. Sorry, the California Supreme Court has also granted review in Monarrez.] Another helpful case on the employee versus independent contractor issue is the Court of Appeal’s unpublished opinion in Bradley v. Networkers Int’l, LLC (2012) 2012 WL 6182473. You cannot
See Best & Worst, Page 46
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cite it in State court, but you can borrow its analysis. Bradley is also helpful for class-certification issues; it holds not only that the question of independent contractor status is one that generally turns on common issues but also, importantly, that an employer’s lack of a meal or restperiod policy can provide sufficient commonality for class certification. When defendants are stuck with the fact that the plaintiff is an employee, they will often attempt to argue that employees can’t bring certain claims. An example of this strategy occurred in Ventura v. ABM Industries Incorporated (2012) 2012 WL 6636255 (Cal. Ct. App. 2d Dist., Div. 5), where defendant ABM Industries argued that the plaintiff employee could not bring a Civil Code section 51.7 claim
46 — The Advocate Magazine
(providing individuals with the right to be free from violence or intimidation) because it was part of the Unruh Act and the California Supreme Court has held that the Unruh Act does not apply to employment cases. The Court of Appeal correctly held that the section 51.7 is not part of the Unruh Act. The Court of Appeal further held that the plaintiff could bring the claim in connection with her sexual harassment allegations even though the individual defendant harasser did not hate her (he “loved” her so much that he wanted to have unconsented sexual relations with her). Unable to keep a plaintiff out of the courthouse, some defendants will attempt to scare the plaintiff into “voluntarily” leaving it by suing or threatening
to sue. Better yet, some defendants will use their political influence to convince a U.S. Attorney to criminally prosecute the plaintiff (at the expense of U.S. taxpayers). Until the Ninth Circuit’s en banc decision in U.S. v. Nosal (9th Cir. 2012) 676 F.3d 854, the easiest way to accomplish this goal was for an employer to allege that the employee violated the employer’s so-called “use restrictions.” “Use restrictions” in the employment context are essentially those policies that employers promulgate in their employee handbooks or electronic communications policies that prohibit the use of work computers, work e-mail, and/or the Internet for nonbusiness purposes. So, if an employee used a work computer for a non-work-related purpose, the employer
could literally make a “federal offense” of it and have the employee criminally prosecuted under the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 et. seq. Writing for a 9 to 2 en banc panel, Judge Kozinski, in one of his typical tour-de-force opinions, summarized the issue before the court thusly: Computers have become an indispensable part of our daily lives. We use them for work; we use them for play. Sometimes we use them for play at work. Many employers have adopted policies prohibiting the use of work computers for nonbusiness purposes. Does an employee who violates such a policy commit a federal crime? How about someone who violates the terms of service of a social networking website? (676 F.3d at 856.) Judge Kozinski, focusing on the potential for the overbroad and arbitrary application of the CFAA, held that the law did not criminalize the violation of “use restrictions”: In the case of the CFAA, the broadest provision is subsection 1030(a)(2)(C), which makes it a crime to exceed authorized access of a computer connected to the Internet without any culpable intent. Were we to adopt the government’s proposed interpretation, millions of unsuspecting individuals would find that they are engaging in criminal conduct. Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by g-chatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes. While it’s unlikely that you’ll be prosecuted for watching Reason TV on your work computer, you could be. (676 F.3d at 859-60 [emphasis in original]).
If an employer can’t prevent an employee from pursuing her claims, it undoubtedly will file a motion for summary judgment seeking to dispose of the case before a jury can ever hear it. Fortunately, several wonderful summary judgment cases came down in 2012. The first, Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, is an absolutely fantastic, hostile work-environment summaryjudgment case. In it, the California Court of Appeal reiterated a rule of law that must be prominently featured in every hostile work-environment summaryjudgment opposition: “Whether an employee was subjected to a hostile work environment is ordinarily one of fact.” (Id. at 959.) Citing Roby v. McKesson Corp. (2009) 47 Cal.4th 686, the court also held that evidence of discrimination can be relevant toward proving a hostile workplace. The second helpful summary judgment case is Shelley v. Geren (9th Cir. 2012) 666 F.3d 599 which held that evidence of a plaintiff ’s superior qualifications, standing alone, may be sufficient to prove pretext. Even if you lose at trial, don’t give up hope. You may be able to get the verdict reversed on appeal. That’s exactly what happened in Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, when the trial court gave the jury a number of erroneous instructions in a “whistleblower” retaliation case. The Court of Appeal held that: • A “whistleblower” plaintiff ’s motivation is irrelevant to the consideration of whether his or her activity is protected. Indeed, whistleblowing may be prompted by an employee’s dissatisfaction, resentment over unfair treatment, vindictiveness, or litigiousness as well as by honest efforts to ensure that the employer is following the law. • Disclosures of a policy that the employee reasonably believes violates the law are protected disclosures, whether or not there is an actual violation of the law. • Defendant’s requested instruction that “information passed along to a supervisor in the normal course of duties is not a protected disclosure” was erroneous under established California law.
• Unfortunately, the Court of Appeal also held that reporting publicly known facts is not a protected disclosure. And, if you are unable to get the verdict reversed, you may be able to prevent the defendants from recovering their expert-witness fees. (Baker v. Mulholland Sec. and Patrol, Inc. (2012) 204 Cal.App.4th 776 [prevailing FEHA defendant must show plaintiff ’s case was frivolous in order to recover expertwitness fees].) On the opposite end of the spectrum, two good cases came down that are helpful to the plaintiffs who prevail at trial. In Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th 1221, the court rejected any challenge to a jury verdict made under an “inherent improbability” of the plaintiff ’s allegations argument. In Fuentes, Marcela Fuentes alleged that her supervisor had sexually harassed her by: (1) spinning her around to expose her buttocks to customers; (2) suggesting that she become a stripper or a bikini model; (3) making bets whether she was sleeping with a co-worker; and (4) asking her to go to a strip club. After a jury found in her favor, the defendant appealed, arguing that her testimony was “inherently improbable.” The Court of Appeal rejected this argument commenting that inconsistencies and contradictions in trial testimony are commonplace and are left for resolution by the jury. On an unrelated note, plaintiff counsel should use Fuentes to encourage defendants to settle even relatively lowvalue cases, since the court affirmed an attorneys’ fee award of $677,000 despite the fact that the jury only awarded her $160,000. The other decision, Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, a non-employment case, is one every plaintiff ’s attorney with a prayer at recovering punitive damages should review. In Bankhead, the Court of Appeal affirmed a $4.5 million punitivedamages’ award against a defendant with a negative net worth. In this decision, the Court of Appeal cogently explained that “net worth is not the only measure of a defendant’s wealth for punitive damages purposes that is recognized by the APRIL 2013
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California courts.” (Id., 205 Cal.App.4th at p. 68.) Rather, other methods for determining wealth for punitive-damages’
purposes – such as immediately available funds (cash flow and amounts that could be borrowed) – are equally valid measures.
The worst: You’re really “hot” — and you’re fired! Possibly the worst ruling, but certainly the most notoriously absurd, has to be Nelson v. James H. Knight DDS, P.C. (Iowa 2012) 2012 WL 6652747, by an “Old Boys Club” in Iowa (also known as the Iowa Supreme Court) issued just before Christmas 2012. Melissa Nelson worked as a dental assistant for Dr. Knight. Dr. Knight complained to Ms. Nelson about his lack of sex life with his wife, asked her how often she experienced an orgasm, and told her that if she saw his pants bulging, she would know her clothing was too revealing. Eventually, Dr. Knight fired Ms. Nelson explaining that he feared he would try to have an affair with her if he did not fire her. Ms. Nelson sued for gender discrimination. The Iowa Supreme Court found that an employer may fire an employee to whom he is irresistibly attracted without engaging in gender discrimination. Quite difficult to believe that this argument would fly under FEHA, but I bet that California employers are going to start advancing it. Twenty-twelve is likely to be remembered as the year in which defendants crafted a new line of defense to discrimination/retaliation cases – the so-called “honest, but mistaken belief ” defense. In this regard, the courts have recognized that one method for a plaintiff to demonstrate pretext is to show that the employer’s articulated legitimate nondiscriminatory reason for the adverse employment action is false. The “honest, but mistaken belief ” defense makes it extremely difficult to prove that the articulated non-discriminatory reason is false. For example, in Seeger v. Cincinnati Bell Tel. Co., LLC (6th Cir. 2012) 681 F.3d 274, the defendant argued that it fired an employee on FMLA leave, not because the employee had committed fraud in connection with his application for FMLA leave (by exaggerating his disability), but rather that it “honestly believed” that he had engaged in such fraud regardless of whether he had actually engaged in such fraud.
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Unfortunately, over a vigorous dissent, the Sixth Circuit affirmed summary judgment in favor of the defendant employer because the plaintiff employee was unable to refute the company’s
purported “honest belief ” that he had engaged in disability fraud. The California counterpart to Seeger is Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207. In Joaquin, the Court
of Appeal held that while you can’t fire an employee for complaining about sexual harassment, you can fire an employee if you “conclude” that the employee had done so falsely (i.e., if you fire the employee because you “honestly but mistakenly” concluded that his complaint of harassment was false, you escape liability). Not content with its absurd holding, this activist Court of Appeal then went on to consider an issue that it admitted that not only that the parties had not raised but also that was completely unnecessary to its decision (“The City has not raised the issue of instructional error, and in light of our conclusion that there is no substantial evidence of retaliatory intent, we need not decide whether the jury was correctly instructed.”). (Id. at 1229.) And it incorrectly opined that there was a “significant flaw.” (Judicial Council’s retaliation jury instruction (CACI 2505).) In Dutra v. Mercy Med. Ctr. Mt. Shasta (2012) 209 Cal.App.4th 750, the court curtailed the rights of workers who are fired because they suffer a workers’ compensation injury and held that the statute prohibiting termination of an employee for filing a workers’ compensation claim (Labor Code § 132a) cannot support a common law action for wrongful termination in violation of public policy. In Veronese v. Lucasfilm Ltd. (2012) 2012 WL 6628544 (Cal.Ct. App.,1st Dist., Div.2.) the court reversed a jury verdict in favor of Julie Gilman Veronese against Lucasfilm, Ltd. for, among other things, pregnancy discrimination. At trial, the court instructed the jury (based on CACI 2500) that Ms. Veronese must prove that her pregnancy was a motivating reason for her discharge. On appeal, Lucasfilm argued that the CACI instruction was wrong and, in any event, the jury should have been instructed on the so-called business judgment rule – i.e., that the jury could not find discrimination “based upon a belief that Lucasfilm made a wrong or unfair decision” or “an error in business judgment.” In a decision that is likely to have negative consequences for all employment discrimination/retaliation
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cases, the Court of Appeal held that employers are entitled to a business judgment instruction. Making matters worse, the Court of Appeal held that the following instruction should not have been given to the jury: “A potential hazard to a fetus or an unborn child is not a defense to pregnancy discrimination.” Although the Supreme Court’s holding in Automobile Workers v. Johnson Controls, Inc. (1991) 499 U.S. 187, makes perfectly clear that this instruction was legally accurate, the Court of Appeal would apparently allow an employer to fire a pregnant employee based on its paternalistic views (i.e., its business judgment) about what is best for the unborn baby. But see, Holland v. Gee (11th Cir. 2012) 677 F.3d 1047 (holding that an employer’s so-called “good inten-
52 — The Advocate Magazine
tions” will not shield it from a pregnancy discrimination claim). The Veronese court refused to address Lucafilm’s argument that the CACI motivating factor instruction is deficient as that issue is presently before the California Supreme Court, in Harris v. City of Santa Monica, (S181004).
There were at least two cases that came down during 2012 that were neither per se good nor bad – Yeager v. Bowlin, 693 F.3d 1076 (9th Cir. 2012) (inability to recall information at deposition may render a subsequent declaration sham and justify grant of summary judgment) and Coito v. Superior Court, 54 Cal.4th 480 (2012) (California Supreme Court’s latest pronouncement on the discoverability of the identities of witnesses
and attorney-directed witness statements). However, all litigators should carefully review these decisions. Here is to a healthy and prosperous 2013! Andrew H. Friedman is a partner with Helmer Friedman LLP in Culver City. He received his B.A. from Vanderbilt University and his J.D. from Cornell Law School, where he was an editor of the Cornell Law Review. He clerked for the Honorable Judge John T. Nixon (U.S. District Court for the Middle District of Tennessee). He represents individuals and groups of individuals in employment law and consumer-rights cases and is the author of Litigating Employment Discrimination Cases (James Publishing 2005-2012).
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Pre-emption, limits on damages and other industry-specific burdens to plaintiffs’ employment claims The National Bank Act, ERISA and NLRA are but a few of the statutory and regulatory quagmires Employees working in certain industries, or bringing certain claims may be subject to laws or regulations that place added burdens on them before they can pursue litigation against their employers, or may provide the employers with defenses beyond those normally asserted in employment cases. For example, some types of state-court actions are pre-empted and can only be brought in federal court. Some are pre-empted and must be brought in an administrative forum, and cannot be pursued in court at all. Some are subject to mandatory arbitration. Some may be subject to limitations on remedies. While these types of statutes are numerous, there are some that are more common and which are more likely to arise. This article discusses some of the more prevalent industry-specific and claim-specific hurdles of which employment practitioners should be aware.
Representing bank officers
The National Bank Act was enacted in 1864 to facilitate a national banking system. Section 24 of the Act grants a national bank the power to dismiss certain officers “at pleasure” and to appoint others to fill their places. (12 U.S.C. § 24, Fifth.) The issue that arises in employment cases is whether the 56 — The Advocate Magazine
National Bank Act pre-empts wrongful termination claims. When representing a bank employee who is alleging an unlawful termination, the first question is whether the bank is a “national bank” subject to the provisions of the National Bank Act. A “national bank” is a financial institution chartered and regulated by the Office of the Comptroller of the Currency. The preemption provisions of the National Bank Act also extend to subsidiaries of national banks. (Watters v. Wachovia Bank, N.A. (2007) 550 U.S. 1, 21.) The Comptroller of the Currency maintains a Web site on which one can search to see if a particular bank is either a national bank or a subsidiary thereof, subject to the provisions of the National Bank Act. (See http:// www.occ.gov/topics/licensing/nationalbank-lists/index-active-bank-lists.html.) Once it has been determined that the employer is a national bank, the next question is to determine whether the aggrieved employee is an “officer.” The title bestowed by the bank on a particular employee is not dispositive of whether he or she qualifies as an officer under the Act. Rather, it is the employee’s duties that are dispositive. In Ramanathan v. Bank of America, the Court rejected Bank of America’s position that the plaintiff, a
computer programmer who had been given the title of vice president, was an officer for purposes of determining applicability of the National Bank Act. (Ramanathan v. Bank of America (2007) 155 Cal.App.4th 1017, 1031.) Among the factors that the court deemed relevant were whether the employee had authority to bind the bank in its transactions with borrowers, depositors, customers or other third parties by executing contracts or other legal instruments on the bank’s behalf, and whether the employee’s decision making authority related to fundamental banking operations. (Id. at 1026-1027.) In Ramanathan, the court found that the employee’s duties as a computer programmer did not relate to any fundamental banking operations, and thus the National Bank Act did not apply to pre-empt his claims. (Id. at 1031 n. 1.) In analyzing a client’s claims and the potential applicability of the National Bank Act, counsel must look beyond the client’s title and examine his or her duties to see if the client is, in fact, an officer for National Bank Act purposes. Even if the aggrieved employee is properly deemed an officer, the Act only applies if the bank’s board of directors
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ratified the employee’s termination. (12 U.S.C. § 24, Fifth.) Although this is a fact that may not be known until discovery commences, it is an argument to be aware of in crafting discovery requests and opposing the employer’s claim of pre-emption. If the employee is an officer of a national bank, was terminated, and the termination was ratified by the board of directors, the question becomes the extent of pre-emption. More specifically, is a statutory discrimination case brought under FEHA pre-empted by the National Bank Act’s empowering of banks to terminate officers “at pleasure”? It appears to be settled that claims brought under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), and the Age Discrimination in Employment Act (“ADEA”) are not pre-empted.
58 — The Advocate Magazine
(Kroske v. U.S. Bank Corp. (9th Cir. 2006) 432 F.3d 976, 986.) With respect to claims brought under the Fair Employment and Housing Act (“FEHA”), the answer is not entirely clear. The California Supreme Court had occasion to consider this question in Peatros v. Bank of America (2000) 22 Cal.4th 147. In Peatros, a vice president of Bank of America alleged she had been terminated because of her race and age, in violation of FEHA and other state laws. The trial court granted summary judgment, agreeing with the bank that section 24 of the National Bank Act empowered it to terminate the plaintiff for any reason, and that the National Bank Act completely pre-empted the employee’s state law claims. The appellate court affirmed, and the Supreme Court granted review.
There was no majority opinion. Three justices found that section 24 of the National Bank Act has been impliedly amended by Title VII and the ADEA and that a national bank’s power to dismiss a bank officer at pleasure does not extend to terminations based on race, color, religion, sex, national origin or age. (Id. at 168-169.) The same three justices further found that section 24 of the National Bank Act pre-empts FEHA only to the extent FEHA conflicts with Title VII or the ADEA. (Id. at 172-173.) To the extent that FEHA does not conflict with Title VII and the ADEA, it is not pre-empted. (Id.) One justice concurred in the result, but on grounds unrelated to pre-emption. (Id. at 180.) She joined the remaining three dissenting justices, however, in her opinion that the National Bank Act fully
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pre-empts all bank officer claims against national banks. (Id. at 183 n.1.) The California Court of Appeal recently grappled with the issue of whether a plaintiff ’s disability discrimination claim under FEHA is pre-empted by section 24 of the National Bank Act. (Quinn v. U.S. Bank, N.A. (2011) 196 Cal.App.4th 168.) After analyzing Peatros and authority in various circuits, the court concluded that “to the extent FEHA is not inconsistent with section 24 as impliedly amended by the ADA, it is not pre-empted.” (Id. at 186.) Thus, the prevailing case authority establishes that disability discrimination claims brought under FEHA are not preempted, at least to the extent that FEHA and the ADA are consistent, but with respect to claims of discrimination based
on race, color, religion, sex, national origin or age, they are likely not pre-empted to the extent that FEHA is not inconsistent with Title VII and the ADEA. This is not, however, fully established. When faced with a discrimination claim based on race, color, religion, sex, national origin or age against a national bank, the more risk-averse employment practitioner may want to allege federal claims under Title VII and the ADEA, as well as state law FEHA claims so that if the FEHA claims are found to be pre-empted, the federal claims will nevertheless remain viable.
Representing employees working in the securities industry
Counsel representing a person employed in the securities industry must
be aware of the Financial Industry Regulatory Authority (“FINRA”). FINRA is the largest independent regulator for all securities firms doing business in the United States. FINRA rules mandate that any dispute between a broker and its brokerage firm must arbitrate its claims at FINRA. (FINRA Rule 13200(a).) An exception exists for discrimination claims: arbitration of any employment discrimination claim or sexual harassment claim is not mandatory unless the parties have signed either a pre-dispute or post-dispute agreement to arbitrate. (FINRA Rule 13201(c).) There is a good chance, however, that an employee in the securities industry who seeks to file a discrimination or harassment claim has signed a pre-dispute arbitration agreement
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during the hiring process. As arbitration through FINRA could affect the value of the potential action, counsel should determine early on in the representation whether an arbitration agreement exists.
Representing employees arguably engaged in concerted activity
Where a plaintiff contends that he or she was terminated for engaging in union or concerted activity, the plaintiff ’s claim may be pre-empted by the National Labor Relations Act (“NLRA”). (Henry v. Intercontinental Radio, Inc. (1984) 155 Cal.App.3d 707, 715.) The NLRA makes it an unlawful employment practice for an employer to interfere with, restrain or coerce non-supervisory employees in the exercise of their rights to engage in “concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protections.” (29 U.S.C. §§ 157 & 158(a)(1).) The NLRA also prohibits employers from discriminating against an employee who chooses to join a labor organization or who exercises his or her rights under the NLRA. (29 U.S.C. §§ 158(3) & (4).) Although the NLRA, by its terms, only protects non-supervisory employees, case law has extended NLRA protection to supervisory employees who refuse to commit unfair labor practices. (Parker-Robb Chevrolet, Inc. (1982) 262 N.L.R.B. 402; Balog v. LRJV, Inc. (1988) 204 Cal.App.3d 1295, 1302.) When an employee alleges that an employer violated the NLRA, state law claims are pre-empted. Unlike cases involving the National Bank Act and ERISA (discussed infra), when a claim is
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pre-empted by the NLRA, the case is not subject to removal to federal court. Rather, the employee’s exclusive remedy is to file an unfair labor practice charge with the National Labor Relations Board (“NLRB”), which has exclusive jurisdiction. (San Diego Building Trade Council v. Garmon (1959) 359 U.S. 236, 244-245.) Thus, when faced with a client whose wrongful termination claim is arguably based on concerted activity, the employment practitioner must determine whether the claim may be pre-empted. For example, where an employee contends that he or she was terminated in retaliation for his or her refusal to participate in the defendant’s unlawful antiunion harassment campaign, his or her wrongful termination claim will be
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pre-empted. (Kelecheva v. MultiVision Cable T.V. Corp. (1993) 18 Cal.App.4th 521, 528.) Similarly, when an employee is terminated for attempting to increase the wages of a group of employees and improve their working conditions, the employee’s claim is pre-empted. (Henry v. Intercontinental Radio, Inc., supra, 155 Cal.App.3d at 711, 715.) There are several exceptions to NLRA pre-emption. For example, contract claims, as opposed to tort claims for wrongful termination, may not be preempted, as the underlying issue is whether a contract existed and whether that contract was breached. The contract claim does not require a showing of unlawful motive. (Kelecheva v. Multi-Vision Cable TV Corp., supra, 18 Cal.App.4th at 531.)
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Moreover, there may not be preemption of a wrongful termination action where there were mixed motives for the termination. (Balog v. LRJV, Inc., supra, 204 Cal.App.3d at 1311.) In Balog, the employee alleged he was terminated in part because of his continuous protests about safety regulations and in part for his refusal to terminate an employee in order to prevent him from becoming a member of a union. The court found that the plaintiff ’s claims were not pre-empted to the extent his discharge was motivated by any illegal reason other than an unfair labor practice. (Id. at 1309-1310.) Thus, if an employee believes he or she was terminated both because of actions that could be considered concerted activity and conduct unrelated to any alleged unfair labor practice, the wrongful termi-
nation case should be allowed to proceed in state court. Another exception to NLRA preemption involves federal claims. Where the NLRA potentially conflicts with another federal statute, as opposed to a state statute, the Garmon pre-emption analysis does not apply. (See, e.g., Smith v. National Steel & Shipbuilding Co. (9th Cir. 1997) 125 F.3d 751, 757 (ADA claims not pre-empted, even to the extent the plaintiff ’s ADA claims encompass conduct arguably covered by the NLRA); Britt v. Grocers Supply Co., Inc. (5th Cir. 1992) 978 F.2d 1441, 1447, cert. denied, 508 U.S. 960 (1993) (because traditional pre-emption analysis does not apply when two federal statutes conflict, the Age Discrimination
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in Employment Act was not pre-empted by the NLRA).)
Representing employees who seek to compel the payment of employee benefits
The Employee Retirement Income Security Act of 1974 (“ERISA”) regulates the operation of pension plans, healthbenefit plans and other employee-benefit plans. (29 U.S.C. §§ 1001-1461). ERISA pre-empts all state laws that relate to any employee benefit plans. (29 U.S.C. § 1144(a).) Where an employee seeks to file suit in state court to compel the payment of employee benefits, the employee’s action may be pre-empted and require an ERISA action to be filed in federal court. (Ingersoll-Rand Co. v. McClendon (1990) 498 U.S. 133, 138.) Thus, where an employee brought a wrongful termination claim based on allegations that he was terminated so that the employer could avoid making contributions to his pension fund, the employee’s claims were held to be pre-empted. (Ingersoll-Rand Co., supra, 498 U.S. at 140. See also, Johnson v. Trans World Airlines, Inc. (1983) 149 Cal.App.3d 518, 528 (state law claims pre-empted by ERISA to
the extent plaintiff alleged he was terminated to avoid paying him covered employee benefits, including vacation pay, sick leave, medical and dental benefits, life insurance, disability and retirement).) Similarly, where an employee alleged that he was terminated after contracting lung cancer so that the employer would not have to pay his medical insurance benefits, the court found the action to be pre-empted. (Felton v. Unisource Corp. (9th Cir. 1991) 940 F.2d 503, 507.) Counsel must therefore be careful about alleging that an employer terminated an employee in order to deprive that employee of benefits. ERISA does not, however, pre-empt a state court action where a loss of employee benefits is “a mere consequence of, but not a motivating factor behind” the termination. (Campbell v. The Aerospace Corp. (9th Cir. 1997) 123 F.3d 1308, 1313. See also, Ethridge v. Harbor House Restaurant (9th Cir. 1988) 861 F.2d 1389, 1405.) Thus, where a state court lawsuit merely alleges that the employee lost income and benefits as a result of wrongful conduct by the employer unrelated to any employee benefit plan, the action should not be subject to pre-emption.
Representing undocumented workers Employees living and working in the United States illegally may face additional hurdles when trying to enforce their legal rights. The United States Supreme Court held in 2002 that the Immigration Reform and Control Act of 1986 (“IRCA”) – enacted to prohibit the employment of undocumented aliens in the United States – prevents the NLRB from awarding back pay to undocumented workers, even when their terminations constituted an unfair labor practice under the NLRA. (Hoffman Plastics Compounds, Inc. v. National Labor Relations Board (2002) 535 U.S. 137, 151-152.) Subsequent to Hoffman Plastics, the California legislature, as part of Senate Bill 1818, amended several statutes to clarify that immigration status is irrelevant to the enforcement of state labor, employment and civil rights laws. (Rivera v. NIBCO, Inc. (9th Cir. 2004) 364 F.3d 1057, 1073, cert. denied, 544 U.S. 905.) One such statute, California Labor Code section 1171.5, states as follows: The Legislature finds and declares the following:
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(a) All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all indi-
viduals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.
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(b) For purposes of enforcing state labor and employment laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that [this/the] inquiry is necessary in order to comply with federal immigration law. (c) The provisions of this section are declaratory of existing law. (Lab. Code, § 1171.5). Civil Code section 3339 and Government Code section 7285, enacted at the same time, contain identical language with the exception that in subdivision (b), they both apply the protections for the additional purpose of enforcing civil rights and employee housing laws. (Civ. Code, § 3339; Gov.Code, § 7285.) Immigration status is therefore irrelevant in enforcement of California’s labor, employment, civil rights, and employee housing laws. Thus, “if an employer hires an undocumented worker, the employer will also bear the burden of complying with this state’s wage, hour and workers’ compensation laws.” (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 460, disapproved on another ground in People v. Freeman (2010) 47 Cal.4th 993.) Employers can be expected to argue that these state laws are pre-empted by the IRCA. Several cases have rejected that argument, finding that California state law placing illegal immigrants on equal footing with other employees is not pre-empted by the IRCA. (See, e.g., Incalza v. Fendi North America, Inc. (9th Cir. 2007) 479 F.3d 1005, 1010-1013; Reyes v. Van Elk, Ltd. (2007) 148 Cal.App.4th 604, 616 (IRCA does not pre-empt California’s prevailing wage law, such that undocumented workers have the same rights as documented workers to enforce California’s wage and hour laws).) An undocumented worker’s ability to recover back wages in FEHA cases was
See Beware, Page 70 68 — The Advocate Magazine
13 What do eleven winners of CAALA’s Trial Lawyer of the Year award have in common? Their Appellate Lawyer.
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touched on by the Ninth Circuit Court of Appeal in Rivera, a federal action brought under both Title VII and FEHA. There, the court looked to Civil Code section 3339(a), Government Code section 7285(a) and Labor Code section 1171.5(a) and acknowledged that in California, immigration status is irrelevant to enforcement of state labor, employment and civil rights laws. (Rivera, supra, 364 F.3d at 1073.) The court did not believe it needed to engage in a preemption analysis, but did acknowledge the potential for a conflict between the IRCA and California law. (Id. at 1073.) Although it appears, based on analogous cases and the discussion in Rivera, that an undocumented worker successful in pursuing a claim under FEHA should be entitled to recover back wages, the law currently remains unsettled. The recovery of back wages by an undocumented worker is more likely permissible in an action brought under Title VII. In Rivera, a magistrate judge issued a protective order barring the defendantemployer from conducting discovery regarding the immigration status of each plaintiff. The Court of Appeal upheld the protective order, finding that allowing discovery into a plaintiff ’s immigration status would likely deter meritorious civil rights claims. (Rivera, supra, 364 F.3d at 1064.) The defendant in Rivera argued that Hoffman Plastics forecloses any award of
back pay to undocumented workers, and that immigration status was thus a proper matter for discovery. The Court of Appeal disagreed, expressing serious doubt that Hoffman Plastics applies to Title VII cases, based on fundamental differences between the NLRA and Title VII. (Id. at 1067). The Court explained that, “the overriding national policy against discrimination would seem likely to outweigh any bar against the payment of back wages to unlawful immigrants in Title VII cases.” (Id. at 1069.) (See also, EEOC v. Tortilleria La Mejor (E.D. Cal. 1991) 758 F. Supp. 585, 593-594 (IRCA does not amend or repeal the protections of Title VII accorded to undocumented aliens).) The IRCA has also been held not to limit remedies for unpaid wages available to undocumented workers under the federal Fair Labor Standards Act. (Patel v. Quality Inn South (11th Cir. 1988) 846 F.2d 700, 704.) Like the defendant in Rivera, employers often seek to conduct discovery about immigration status when they suspect that a plaintiff is undocumented. In addition to arguing about the propriety of awarding back wages to such a plaintiff, employers also try to argue that immigration status is relevant to their potential defenses of after-acquired evidence and unclean hands, and therefore subject to discovery. (See, e.g., Murillo
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v. Rite Stuff Foods, Inc. (1988) 65 Cal.App.4th 833.) Counsel should object to such discovery, based on Labor Code section 1171.5(b). A more difficult question is whether the after-acquired evidence doctrine and unclean hands defense bar an undocumented alien’s FEHA claims. This issue is currently pending before the California Supreme Court in Salas v. Sierra Chemical Co., Case No. S196568 (review granted 9/9/11, 133 Cal.Rptr.2d 392.) The question to be considered by the court is whether the trial court erred in dismissing the plaintiff ’s FEHA claims on grounds of after-acquired evidence and unclean hands, based on plaintiff ’s alleged use of false documentation to obtain employment in the first instance, and whether Senate Bill 1818 – which added, among others, Labor Code section 1171.5, Civil Code section 3339 and Government Code sections 7285, et seq. – precludes application of those doctrines. The briefing before the California Supreme Court has been fully completed, but no oral argument date has yet been set.
While it is not possible to give an exhaustive dissertation of each of the laws and regulations applicable to employees working in certain industries or claims involving special considerations, by being aware that special hurdles exist, counsel can fully research the requirements and limitations early on in the representation, in order to prepare for the challenges ahead. Iris Weinmann is a partner in Greenberg & Weinmann, located in Santa Monica. Ms. Weinmann has concentrated her practice on the representation of employees in civil rights and other employment related litigation since 1994. Together with her partner, Paul Greenberg, Ms. Weinmann has successfully tried multiple employment cases to verdict. She has also argued several appeals before the Court of Appeal for the State of California. Ms. Weinmann is a frequent contributor to the Advocate’s annual Employment Law issue.
The Advocate Magazine â€” 71
Sarah B. Schlehr
Hilary L. Rau
The ABC’s of federal and state leave laws applicable to California employees Family medical leave, military leave, disability leave, pregnancy leave... and more Many leave laws apply in a variety of situations that impact California employees. Often, more than one law will apply to a particular employee’s circumstances. This article provides a basic overview of the numerous leave laws that apply to California employees. Because the laws often overlap in unique and interesting ways, only the basics are included. In reality, none of the laws can or should be considered in isolation. Instead, it is essential to understand how the various laws intersect and overlap. In representing employees, it is essential to ensure that all of the potentially applicable laws are identified, that the 72 — The Advocate Magazine
specific protections and defenses to each type of leave are distinguished, and that the remedies for each protection are considered. When examining the various types of leave that may apply to a particular employee, the broadest protection always applies. (29 C.F.R. § 825.702 (2012).) Employees’ leave rights should be determined based on the statutes that provide the employee with the greatest protections.
The Federal Family and Medical Leave Act (FMLA)
The Federal Family and Medical Leave Act (FMLA) (29 U.S.C. § 2601 et seq.) is the leave law that is probably the
most familiar to employers and employees. The FMLA applies to private employers who had at least 50 employees on their payroll for at least 20 workweeks in the current or prior calendar year. The FMLA also applies to federal, state, and local government agencies and to public or private elementary and secondary schools regardless of size. Employees of covered employers are eligible for FMLA leave if they have worked a minimum of 12 months for their employer (they do not have to be consecutive), worked a minimum of 1250 hours for their employer in the last 12
See ABC’s, Page 74
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months, and work at a location where the employer employs 50 or more people within 75 miles. Eligible employees are entitled to up to 12 weeks of unpaid leave in a 12 month period: • for the employee’s own serious health condition that makes the employee unable to perform the essential functions of his or her job; • to care for the employee’s spouse, child, or parent who has a serious health condition; • to bond with their newborn child within one year of the child’s birth; • for the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; or • for any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.” The FMLA also entitles eligible employees to take up to 26 weeks of leave during a 12-month period to: • care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (i.e. closest blood relative). During a protected FMLA leave, employers must maintain employees’ group health coverage, although employees may be required to pay the portion that would normally be deducted from their regular paychecks. Covered employers must also guarantee employees’ reinstatement to their same or an equivalent position after the conclusion of a protected leave of absence. An equivalent position is one which is virtually identical in terms of pay, benefits, and working conditions. It must also involve substantially similar duties and responsibilities. (29 C.F.R. § 825.215(a) (2012).) An equivalent position should also be at the same or a nearby worksite that does not require a significantly farther commute. (29 C.F.R. § 825.215(e)(1) (2012).) The position should also be on the same shift or same or equivalent work schedule. (29 C.F.R. § 825.215(e)(2) (2012).) 74 — The Advocate Magazine
There are a few exceptions to the general rule that employees must be reinstated after taking a protected leave of absence under the FMLA. Employers do not need to reinstate “key employees” after what would normally be a protected FMLA leave. A “key employee” is a salaried employee who is one of the highest paid 10 percent of all employees within 75 miles of the employee’s worksite. (29 U.S.C. § 2614(b)(2); 29 C.F.R. § 825.216(b) (2012).) However, reinstatement may only be denied if it would result in “substantial and grievous economic injury” to the operations of the employer. (29 U.S.C. § 2614(b)(1)(A); 29 C.F.R. § 825.216(b) (2012).) Employers must also provide written notice to key employees that they are key employees and the potential consequences regarding their right to reinstatement. This notice must allow key employees an opportunity to forego taking the leave or an opportunity to return from leave that has already begun. Employers who fail to give timely notice will lose their right to deny reinstatement to key employees even if substantial and grievous economic injury will result from reinstatement. (29 C.F.R. § 825.219 (2012).) In addition, employers can terminate employees who are on protected FMLA leaves of absence if they would have terminated the employees even if they had not taken protected leaves of absence. For example, if there is a mass company lay-off that would include an employee on FMLA leave, the employer may still include the employee in the layoff. Remedies under the FMLA include both economic and injunctive relief. Economic remedies may include back pay, loss of benefits, and any costs incurred as a result of the denial of leave. Liquidated damages and attorneys’ fees are also available under the FMLA. The FMLA does not allow compensation for emotional distress. Equitable relief, typically in the form of reinstatement, is also available under the FMLA. While the FMLA does not explicitly grant employees the right to front pay; front pay may be available in some
cases as a form of equitable relief. Because front pay is an equitable remedy under the FMLA, the amount is determined by the district court rather than the jury. (Traxler v. Multnomah County (9th Cir. 2010) 596 F.3d 1007, 1011; 29 U.S.C. § 2617.)
California Family Rights Act (CFRA)
The California Family Rights Act (CFRA) (Gov Code, § 12945.2) is the California state law counterpart to the federal FMLA. Like the FMLA, CFRA provides eligible employees with up to 12 weeks of unpaid, protected leave. However, though the FMLA and CFRA are similar and generally run concurrently, there are significant distinctions. Unlike the FMLA, CFRA also covers employees who need leave to care for the serious medical condition of a registered domestic partner. (Fam. Code, § 297.5(a).) However, CFRA does not provide servicemembers’ family leave. The CFRA is also more generous in allowing for intermittent leave for baby bonding without employer consent. Another primary distinction between the FMLA and CFRA is that complications due to pregnancy, childbirth, or related medical conditions may be considered serious health conditions that are covered under the FMLA, but they are specifically excluded as serious health conditions under the CFRA. Instead, under state law, health conditions relating to pregnancy and childbirth are covered by California’s Pregnancy Disability Leave Law (PDLL). (See the section on PDLL below.) Remedies under the CFRA are generally more generous to employees than remedies under the FMLA. Like the FMLA, CFRA provides for back pay, injunctive relief, and attorneys’ fees. Though the CFRA does not provide for liquidated damages, emotional distress and punitive damages are available under the CFRA. In addition, while front pay under the FMLA is an equitable remedy to be determined by a judge, front pay under CFRA is determined by a jury.
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Disability leaves of absence Disabled California employees who require a leave of absence may be entitled to one as a reasonable accommodation under both the Federal Americans with Disabilities Act (ADA) (42 U.S.C. §§ 12101 et seq.) and the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.). It is important to distinguish disability leave from leave under the FMLA or CFRA. Some disabilities that require a leave of absence as a reasonable accommodation may also be serious health conditions that entitle an employee to a protected leave under the FMLA and/or CFRA. However, some disabilities are not “serious health conditions,” and some “serious health conditions” under the FMLA or CFRA may not be protected disabilities under the ADA or FEHA. Generally, the FEHA is more protective of employees than the ADA. The FEHA applies to private employers with at least five employees, while the ADA only applies when a private employer has at least 15 employees. Also, the ADA itself is silent as to whether a leave of absence may be a reasonable accommodation for a disabled employee (though
various cases have held that it may be under some circumstances), whereas the current disability regulations interpreting the FEHA contain a specific provision that a reasonable accommodation may include paid or unpaid leaves of absence. The current disability regulations provide that “when the employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment and recovery, holding a job open for an employee on a leave of absence or extending a leave provided by the CFRA, the FMLA, other leave laws, or an employer’s leave plan may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer. When an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence. An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation.” (Cal. Code Regs., § 7293.9(c).) Both the ADA and the FEHA provide that employers do not need to
provide employees with indefinite leaves of absence nor do they need to provide an employee with a leave of absence if it would result in an undue hardship or burden to the employer. Remedies under the ADA include injunctive relief, back wages, and attorneys’ fees. Compensatory damages and punitive damages are also available in cases of intentional employment discrimination, though they are capped at various amounts depending on the size of the employer. The Circuit courts are divided as to whether punitive and compensatory damages are available in ADA retaliation cases. (Compare Alvarado v. Cajun Operating Co. (9th Cir. 2009) 588 F.3d 1261, 1268-70 (holding that injunctive and punitive damages were unavailable in ADA retaliation cases) and Kramer v. Banc of Am. Sec., LLC (7th Cir. 2004) 355 F.3d 961, 965 (same) with Salitros v. Chrysler Corp., 306 F.3d 562, 574-76 (8th Cir. 2002) (upholding jury award of compensatory damages in ADA retaliation suit); Foster v. Time Warner Entm’t Co. (8th Cir. 2001) 250 F.3d 1189, 1196-98 (same); EEOC v. Wal-Mart Stores, Inc. (10th Cir. 1999) 187 F.3d 1241, 1246 (same); and Muller v. Costello (2d Cir. 1999) 187 F.3d 298, 314-15 (same).) Remedies under
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the FEHA are not limited by any caps and are typically more generous.
Occupational injuries (Labor Code section 132a)
California Labor Code section 132a prohibits discrimination by any employer (regardless of size) against any employee who incurs work-related injuries. The statute has been interpreted to require an employer to provide leaves of absence to occupationally injured employees. (Judson Steel Corp. v. Workers’ Comp. Appeals Bd., (1978) 22 Cal.3d 658, 669.) Penalties for violations of Labor Code section 132a are filed in workers’ compensation proceedings. However, employers who violate this law may also be violating the FEHA’s provisions against disability discrimination and/or may be liable for failure to reasonably accommodate a disabled employee. They may also be violating the FMLA and CFRA, depending on the nature of the injury and length of leave required. Again, it is essential to identify each and every law that is applicable to a particular employee’s situation, so that employees can receive every protection and remedy available. Labor Code section 132a is not the exclusive remedy for disability discrimination because of a workrelated injury or illness. (City of Moorpark v. Sup.Ct. (Dillon) (1998) 18 Cal.4th 1143, 1154–1155.)
Pregnancy Disability Leave
California’s Pregnancy Disability Leave Law (PDLL) (Gov. Code, § 12945) provides employees with up to four months of leave for disabilities relating to pregnancy, childbirth, or related medical conditions. As with the FEHA disability regulations, the pregnancy regulations interpreting the FEHA were recently amended and should be read in their entirety when dealing with an employee who requires pregnancy disability leave. The PDLL covers employers with at least five employees. Both part-time and full-time employees are eligible for pregnancy disability leave (PDL) and there is no length of service requirement. PDL 78 — The Advocate Magazine
runs concurrently with FMLA leave; however, it is specifically excluded from and does not run concurrently with CFRA leave. More details on the interactions of California leave laws relating to pregnant employees are discussed in The Intersection of California’s Laws During Pregnancy and After Delivery (April 2012) 39 Advocate 4, although it is important to note that the regulations interpreting the PDLL have been amended since the article’s publication. The PDLL entitles employees to reinstatement to their same position unless the employer proves “by a preponderance of the evidence, that the employee would not otherwise have been employed in her same position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking pregnancy disability leave or transfer (such as a layoff pursuant to a plant closure).” (Gov. Code, § 7291.10 (c)(1).) Undue hardship is not an affirmative defense when an employee takes leave pursuant to the PDLL. Remedies for violations of the PDLL include reinstatement, front pay, back pay, compensation for emotional distress, attorneys’ fees, and punitive damages may be available.
The Federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 4301 et seq., governs the rights of employees taking leaves for military service. All employers (regardless of size) and all employees (regardless of length of time employed or number of hours worked) are covered. (38 U.S.C. §§ 4303(3), (4)(A) & 4312(a); 20 C.F.R. § 1002.34.) Depending on the particular circumstances, protected leave under USERRA may be provided for up to five years. Unlike most other leave laws, USERRA requires employers to reinstate employees to the position they would be in if they had remained continuously employed by the company. The USERRA regulations refer to this as the “escalator position.” Essentially returning veterans do not step back on the seniority escalator
at the point they stepped off; rather, veterans must “be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites, that he or she would have attained if not for the period of service.”(20 C.F.R. §§ 1002.191, 1002.1921002.199.) In addition, if the employee is not qualified for the position, the employer must make “reasonable efforts” to help the employee qualify. (See 38 U.S.C. § 4313(a)(2)(B); see 20 C.F.R. § 1002.198.) In addition to ensuring that veterans are reemployed after serving our country, USERRA changes the at-will nature of the employment relationship by preventing employers from firing without cause any returning veterans for a period of time up to one year, depending on the length of the leave taken. The employer bears the burden of proof in showing the termination was for cause. (38 U.S.C. § 4316(c).) There is no set statute of limitations for USERRA claims, although the doctrine of laches applies. Remedies for USERRA violations include monetary damages (including liquidated damages if the violation is willful), injunctive relief, and attorneys’ fees, expert-witness fees, and costs. (38 U.S.C. § 4323(d),(e),(h)(2); 20 C.F.R. §§ 1002.310, 1002.312 & 1002.314.) Emotional distress and punitive damages are not available under USERRA. The California Military and Veterans Code (Mil. & Vet. Code, § 389 et seq.) also protects veterans who have taken leave to serve our country. Again, it is essential to look at all of the laws to identify which provide the most protection in any employee’s particular circumstances. When the California Military and Veterans Code provides greater benefits than USERRA, it controls. (38 U.S.C. § 4302(a).) Conversely, when USERRA provides an employee with greater protection, employers must comply with the more stringent federal law. (38 U.S.C. § 4302(b).) In addition to protecting veterans, under California law, employers with 25 or more employees must allow the
See ABC’s, Page 80
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spouse of a person in military service up to 10 days of unpaid leave while the soldier-spouse is on leave from deployment during a military conflict. (See Mil. & Vet. Code, § 395.10.)
Both Federal and California law protect employees who are called to serve on a jury. (28 U.S.C. § 1875; Cal. Lab. Code, § 230.) The federal law only protects employees who are compelled to serve on a jury in federal court, it does not protect employees who are asked to serve on jury in state court, nor does it protect employees who are providing witness testimony. However, the federal law does cover all employers regardless of size. In addition to injunctive relief, lost wages, and attorney fees, the federal law provides for a $5,000 penalty per affected employee. California law protects employees who are called to serve on a jury – whether in state or federal court. California Labor Code section 230 also protects employees who take time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding. Statutory remedies under California Labor Code section 230 include reinstatement and reimbursement for lost wages and benefits. However, the California statute does not include a
provision to recover attorney fees. Employees may also sue for wrongful termination in violation of public policy for a violation of Labor Code section 230. While public policy violations do not automatically provide for attorney fees, this litigation strategy may provide employees with compensation for their emotional distress and they may be able to obtain punitive damages.
Victims of domestic violence
A victim of domestic violence or sexual assault is entitled to take time off from work to obtain relief (e.g., a restraining order or injunctive relief) “to help ensure the health, safety or welfare of the victim or his or her child.” (Lab. Code, § 230(c).) In addition, Labor Code section 230.1 protects employees from discrimination or retaliation for taking time off work for the following reasons: • to seek medical attention for injuries caused by domestic violence or sexual assault; • to obtain services from a domestic violence shelter, program or rape crisis center as a result of domestic violence or sexual assault; • to obtain psychological counseling related to an experience of domestic violence or sexual assault; or • to participate in safety planning and take other actions to increase safety from
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future domestic violence or sexual assault, including temporary or permanent relocation.
Leave for crime victims
Employees who are the victim of a crime may be absent from work to attend judicial proceedings related to that crime. The same right exists where the employee is “an immediate family member of a victim, a registered domestic partner of a victim, or the child of a registered domestic partner of a victim.” (Lab. Code, § 230.2(b)(3).) “Crime” as defined here means “violent felony” (Pen. Code, § 667.5), a “serious felony” (Pen. Code §, 1192.7) or “a felony provision of law proscribing theft or embezzlement.”(Lab. Code, § 230.2(a).) Employers may not discriminate or take any adverse actions against employees who are absent from work for this reason, and must keep confidential any records regarding such absence. (Lab. Code, § 230.2(e),(f).)
Leaves for school visits and activities
Employers with 25 or more employees working at the same location are required to provide time off for parents, guardians, and grandparents to participate in school activities. (Lab. Code, § 230.8.) Protected employees must have custody of one or more children in kindergarten or grades 1 to 12, or attending a licensed day care center. (Lab. Code, § 230.8(a)(1). Eligible employees have the right to take time off, up to 40 hours per year (but no more than eight hours per calendar month), for the purpose of participating in the child’s school or licensed day care activities. (Lab. Code, § 230.8(a)(1).) In addition to the requirement that some employers need to provide leave for school activities, all employers must provide time off for an employee who is the parent or guardian of a child in kindergarten through twelfth grade who has been requested by a teacher to visit the school when the child has been suspended for the following conduct: • committing an obscene act; or • engaging in habitual profanity and vulgarity; or
• disrupting school activities; or • otherwise willfully defying the valid authority of school personnel. (Lab. Code, § 230.7; Cal. Ed. Code, §§ 48900.1, 48910 & 48900(i),(k).)
Leaves for volunteer firefighters, reserve police officers, and emergency rescue personnel
All employers are required to grant time off to employees to perform emergency duty as a volunteer firefighter, reserve police officer or emergency rescue personnel. (Lab. Code, § 230.3(a).) In addition, employees of employers with 50 or more employees may take leaves of up to 14 days per year for fire or law enforcement training. (Lab. Code, § 230.4(a).)
Alcohol and drug rehabilitation leaves
Private employers of 25 or more employees must reasonably accommodate an employee voluntarily entering an alcohol or drug rehabilitation program, provided that the reasonable accommodation does not impose an undue hardship on the employer. (Lab. Code, § 1025.) All employees are eligible for this leave without regard to the length of their employment. (Lab. Code, § 1025.) Though Labor Code section 1025 does not expressly require an employer to provide a leave of absence, its reasonable accommodation provision suggests that permitting a leave of absence may be required. In addition, the legislative history for Labor Code section 1025 refers to notice as a factor in determining whether a leave presents an undue hardship; and Labor Code section 1027 provides that the statutory scheme does not require paid time off, but requires that an employee be entitled to use paid sick leave. It is also essential to note that the statute does not protect employees who, because of their current use of alcohol or drugs, are unable to perform their job or who cannot perform their duties “in a manner which would not endanger his or her health or safety or the health or safety of others.” (Lab. Code, § 1025.)
Time off to vote California Elections Code section 14000 et seq. requires that employers provide employees with sufficient time off to vote in any statewide election, if employees do not have sufficient time outside of working hours to vote. All employers, both public and private, regardless of size, have an obligation to provide time off to vote, and all employees are eligible for this leave regardless of their length of employment.
Organ and bone marrow donation leaves
Labor Code section 1508 et seq. requires employers with 15 or more employees to grant a paid leave of absence not exceeding 30 business days in any one-year period for the purpose of donating an organ to another person and a paid leave of absence not exceeding five business days in any one-year period for the purpose of donating bone marrow to another person. This leave does not run concurrently with any leave under the FMLA or CFRA, and the oneyear period is measured from the date the employee’s leave begins and consists of 12 consecutive months. (Lab. Code, § 1510.)
While California has a plethora of laws that apply in many circumstances
where employees need leave, it is also essential to note that there are circumstances wherein employers do not need to provide leaves of absence to their employees (e.g. bereavement leave, vacation leave, and sick leave are not mandated by federal or California statute although there may be contract remedies available when employers have offered these types of leave). When determining whether a leave of absence is available, it is essential to look at the laws in relation to one another and ascertain each and every way that an employee may be protected. Remember, the most generous law applies. Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C., in Burbank, CA (www.pregnancylawyer.com). Ms. Schlehr concentrates on representing employees in pregnancy discrimination and interference with leave claims. She also handles other employment related matters on behalf of employees. Ms. Schlehr graduated from Harvard Law School in 2001 and is admitted to the State Bars of CA and NY. She can be reached at firstname.lastname@example.org. Hilary L. Rau is an associate at The Schlehr Law Firm, P.C. in Burbank, California where she litigates on behalf of employees. Ms. Rau also handles police brutality and other civil rights matters. Ms. Rau is a graduate of Pomona College and UCLA School of Law.
The Advocate Magazine — 81
New labor & employment laws affecting California employers in 2013 Bills and regulations new to the workplace covering records, wages, working conditions, reasonable accommodation and more LEGISLATION
Inspection of personnel records; attorney’s fees AB 2674 (Swanson) (Stats. 2012, c.842) amended Labor Code sections 226 and 1198.5. The bill makes several significant changes to the law relating to employer retention of, and employee inspection of, personnel records. It highlights these areas: (1) who has the right to inspect or request copies of personnel files; (2) deadlines for providing acc ess to personnel files; (3) how and where records are made available; (4) the employer’s obligation to retain files; (5) reduction of the employer penalty from a misdemeanor to an infraction for failure to permit an 82 — The Advocate Magazine
employee to inspect the employee’s personnel files. Employer violations of the requirements allow a current or former employee or the Labor Commissioner to recover a penalty of $750 from the employer, and would allow a current or former employee to obtain injunctive relief and attorney’s fees. According to the Assembly Concurrence floor analysis of AB 2674, the bill was sponsored by the California Rural Legal Assistance Foundation (CRLAF) and “is designed to ensure that current and former employees have a right to inspect and copy their personnel files in order to defend their rights under important state and federal statutes. CRLAF argues that, under
California law, it is a fundamental right that employees must have access to their personnel records in order to properly defend their rights under applicable employment laws. However, existing Labor Code section 1198.5 (which purports to protect this right) is extremely vague and unclear. Unscrupulous employers and their attorneys use this fact to their advantage to hide information that otherwise would be disclosed. This type of uncertainty disadvantages employees, who have not seen the records and therefore are not able to question the employer’s adverse employment actions against them. Therefore, this bill seeks to clarify and improve current law with respect to personnel records.”
Sex discrimination and breastfeeding AB 2386 (Allen) (Stats. 2012, c. 701) amended Government Code section 12926. The bill revised the Fair Employment and Housing Act (FEHA) definition of â€œsexâ€? to include breastfeeding and related medical conditions, in order to prevent breastfeeding discrimination in the workplace. According to the Senate Floor analysis of AB 2386, several federal district courts had â€œ ruled against workplace discrimination cases involving breastfeeding.â€? In particular, on February 10th, 2012, a federal district court judge had upheld the termination of a woman because of her request to pump at work. In the decision, the judge reasoned that nursing was not pregnancyrelated, so firing her was not sex discrimination.
Religion and reasonable accommodation
modation apply to religious dress and grooming practices. It also specifies that segregation of an individual employee from other employees does not qualify as reasonable accommodation. According to the Assembly Concurrence floor analysis of AB 1964, the bill was sponsored by the Sikh Coalition because the Department of Corrections and Rehabilitation refused to hire Sikhs to serve as security guards unless they removed their religiouslymandated beards. Similarly, police agencies in California were refusing to hire Sikh police officers unless they removed their turbans.
AB 1964 (Yamada) (Stats. 2012, c. 287) amended Government Code sections 12926 and 12940. The bill clarifies that the FEHA discrimination protections and requirements for reasonable accom-
AB 1844 (Campos) (Stats. 2012, c. 618) added Labor Code section 980 et seq. The bill prohibits employers from
The Senate Floor analysis notes further that many women cited workplace harassment or pressure from employers, supervisors or co-workers as a major reason for their decision to stop breastfeeding. For example, it was not uncommon for employers, supervisors or co-workers to express their preference for the nursing mother to stop pumping in the workplace. Many women also cited employer-requested leave until they are done breastfeeding or being barred from work activities.
Social media and personal passwords
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The Advocate Magazine â€” 83
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requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media – unless the information is reasonably believed to be relevant to an investigation, and is only used for that purpose. AB 1844 also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions. However, AB 1844 does not require the Labor Commissioner to investigate or determine any violation of these prohibitions. According to the Senate Floor analysis of AB 1844, the explosive use of social media in the workplace (e.g. Facebook, Twitter, LinkedIn and MySpace) “can present several problematic situations around issues of free speech, discrimination of current and potential employees, harassment, and even termination.” The analysis notes that the issue of an employee’s right to privacy with regard to his or her social media account
password was discussed in Pietrylo v. Hillstone Restaurant Group. The analysis provides a summary of the case and subsequent judicial treatment: Two employees, Pietrylo and Marino, filed suit after they were fired from their restaurant employer for creating a private MySpace page that allowed employees to vent about their workplace. Since the page was private and could only be joined by invitation, one of the restaurant managers asked a third employee (St. Jean) for her MySpace password in order to access the private page. While the employee admitted that she was not threatened, she did state that she felt that she had to give her password to her manager when asked. The jury ultimately found that St. Jean’s consent was coerced and ruled in favor of the former employees in June 2009. The United States Court of Appeals for the Third Circuit affirmed this decision in September 2009. (Pietrylo v. Hillstone Restaurant Group (D.N.J. 2009). 2009 WL 3128420.)
Itemized wage statements/temporary service employers AB 1744 (Bonnie) (Stats. 2012, c. 744) amended Labor Code sections 226 and 2810.5, and added Labor Code
section 226.1. The bill will take effect July 1, 2013, and requires temporary services’ employers to disclose specified information on the itemized payroll statement provided to employees and on an existing notice provided at the time of hire. According to the Assembly Concurrence floor analysis on the bill, the percentage of Californians whose jobs are temporary has nearly quadrupled in the past 30 years, and temporary service employers are not required to specify information on their employees’ paystubs. The purpose of listing this information was described as bringing clarity to temporary employees and modernizing the Labor Code to reflect this growing form of alternative employment.
Penalties for wage statement violations
SB 1255 (Wright) (Stats. 2012, c. 843) amended Labor Code section 226. It defines “injury” for purposes of recovering damages for employer violations of the itemized wage statement requirements. According to the Senate floor analysis of the bill “… a worker is deemed to ‘suffer injury’ if he/she is unable to readily and easily determine from the wage statement alone specific information
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such as the total gross and net wages, employer’s name and address or which deductions were taken. The author believes that this definition codifies a commonsense understanding of the term consistent with the legislative history of Labor Code section 226, and provides the courts with an appropriate framework for addressing these issues in the future.” According to the Senate Labor and Industrial Relations Committee analysis of SB 1255, “the remedy [previously] provided under Labor Code Section 226 was added specifically to help ensure compliance with the wage statement requirements. The information required to be provided in wage statements is necessary for workers to ensure that they are being fully compensated for their work. Given the contradictory and inconsistent interpretations of what constitutes ‘suffering Injury’ under Labor Code Section 226 in the various court cases that have been litigated in recent years, it is necessary to provide further clarity on the issue for purposes of recovering damages under this code section.”
Payroll commission agreements
AB 2675 (Swanson) (Stats. 2012, c. 826) amended Labor Code section 2751.
According to the Assembly Concurrence floor analysis of the bill, AB 2675 responds to previous legislation (AB 1396, Stats. 2011, c. 556) which required all employers, by January 1, 2013, to provide a written contract, with specified details, to employees who are paid commission. The analysis explains: The law excludes from this writing requirement specified short-term productivity bonuses or bonus and profitsharing plans. Since the enactment of the legislation last year, the California New Car Dealers Association has expressed concern regarding certain temporary incentives offered to employees of car dealers. They expressed concern that it would be burdensome for them to have to issue a new written commission plan each and every time such a special incentive is offered. Therefore, based on discussions and agreement with the sponsor of last year’s bill, the amendments to this bill clarify that such temporary and variable incentive payments, which increase (but do not decrease) payments, are not considered ‘commissions’ for the limited purpose of the writing requirement of Labor Code Section 2751.
Therefore, an employer will not have to issue a new written commission plan every time such a short-term incentive is offered. This is consistent with other provisions of Labor Code Section 2751 that already exclude certain short-term productivity bonuses and bonus and profit-sharing plans.
Fixed salaries and overtime
AB 2103 (Ammiano) (Stats. 2012, c. 820) amends Labor Code section 515. The bill specifies that payment of a fixed salary to a nonexempt employee shall be deemed to be payment only for the employee’s regular non-overtime hours, regardless of any contrary private agreement or “explicit mutual wage agreement.” As a result, employers must pay their salaried employees for any overtime hours worked separately. The bill declares the intent to overturn Arechiga v. Dolores Press (2011) 192 Cal.App.4th 567, a case which had ruled against the employee. The Senate floor analysis of AB 2103 summarized the case: Arechiga and his employer orally agreed he would work 11 hours a day, six days a week, for a total of 66 hours at a fixed salary of $880 a week. According to the court, because
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Arechiga was a nonexempt employee under labor law, the agreement between Arechiga and his employer meant he earned 26 hours of overtime pay each week and the $880 salary covered both his regular and overtime hours. In 2006, Arechiga was terminated after six years of employment and, in 2007, he filed a complaint alleging multiple causes of action against his employer. Citing Labor Code Section 515(d), Arechiga argued that his salary of $880 compensated him only for a regular 40-hour work week at $22 per hour ($880/40 hours). Therefore, Arechiga argued, the employer owed him $33 per hour for the 26 weekly hours of overtime worked for the three years alleged in the complaint.
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Dolores Press, however, disagreed with Arechiga’s assertion and argued that California’s ‘explicit mutual wage agreement’ doctrine applied. According to the employer, under the doctrine, an employer and employee may lawfully agree to a guaranteed fixed salary as long as the employee is being compensated for all overtime as required by law. The court agreed with the employer and found that an explicit mutual wage agreement existed under which the $880 salary lawfully compensated the employee for both his regular and overtime work based on an $11.14 hourly wage and an $16.71 hourly overtime wage. The Court of Appeal held that this method of payment comported with California overtime law, and that no additional overtime compensation was owed. The Court rejected the employee’s contention that existing Labor Code Section 515(d) prohibits any sort of agreement that would allow a fixed salary to serve as a non-exempt employee’s compensation for anything more than a 40-hour workweek.
Human trafficking posting
SB 1193 (Steinberg) (Stats. 2012, c. 515) added Civil Code section 52.6. According to the Senate floor analysis of SB 1193, the bill:
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…requires specified businesses most often connected with human trafficking to post informational signs, as specified, at the business entrance or in other areas visible to employees and the public. These signs, posted in English, Spanish, and any other language widely spoken in the county, will identify trafficking, state its illegality and that victims are protected under U.S. law. Each sign will provide two toll-free, anonymous hotline numbers for victims or members of the public to call to seek help or report unlawful or suspicious activity.
AB 1775 (Wieckowski) (Stats. 2012, c. 474) amends Code of Civil Procedure sections 706.011 and 706. It takes effect July 1, 2013. The bill increases the amount of a judgment debtor’s weekly earnings that are exempt from levy under an earnings withholding order from 30 times the federal minimum wage to 40 times the California minimum wage.
Workers’ Compensation reform
SB 863 (De León) (Stats. 2012, c. 363). This bill amends, repeals and adds various sections of the Labor Code related to workers’ compensation. The California Chamber of Commerce,
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a supporter of the bill, notes that it offsets necessary increases in permanent disability benefits, potentially lowering the costs for employers. A few of the reforms take effect January 1, 2013, but many require administrative/regulatory action before implementation. The Senate Committee on Industrial Relations Committee analysis asked whether the Legislature should reform the workers’ compensation system “in order to cut costs for employers and increase benefits to injured workers by more than $700 million?” It said the bill was intended to “reduce frictional costs, speed up medical care for injured workers, and to increase Permanent Disability (PD) indemnity benefits to injured workers.”
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SB 1186 (Steinberg) (Stats. 2012, c. 383) addresses a number of sections in the Business and Professions Code, the Civil Code, the Code of Civil Procedure, the Government Code and the Health and Safety Code. An urgency bill, it took effect upon enactment, September 19, 2012. The California Chamber of Commerce describes SB 1186 as limiting “frivolous litigation” involving technical disability access violations by (1) lowering statutory damages, (2) preventing “stacking” of multiple claims to increase statutory damages, and (3) prohibiting prelitigation demands for money. Section 29 of the bill set forth the basis for the urgency: “In order to avoid unnecessary litigation and to facilitate compliance with the disability access law, it is necessary that this act take effect immediately.
FEHC eliminated; duties transferred to the DFEH
SB 1038, a budget trailer bill (Stats. 2012, c. 46) eliminated the California Fair Employment and Housing Commission effective January 1, 2013. The Chamber notes that the biggest change is the way in which charges of discrimination or harassment are handled: The Fair Employment and Housing Act’s administrative hearing process is
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eliminated. Instead, the Department of Fair Employment and Housing will be able to bring civil actions on behalf of a complainant and require mandatory dispute resolution.
Intellectual disabilities, new terminology AB 2370 and SB 1381 (Stats. 2012, c. 448 and c. 457). According to Section 1 of SB 1381, the terms “intellectual disability” are substituted for the “outdated, offensive and misleading terms ‘mental retardation’ and ‘mentally retarded’” in the statutes, regulations, state publications, etc.
AB 1845 (Solorio) (Stats. 2012, c. 783) amends various sections of the Unemployment Insurance Code. It allows EDD to deny reimbursement for employer overpayments made to the unemployment insurance reserve account if the overpayment resulted from an employer’s failure to provide adequate information to the EDD. It applies to overpayments made on or after October 22, 2013.
AB 2677 (Swanson) (Stats. 2012, c. 827) amends Labor Code section 1773.1,
and adds Labor Code section 1773.8. According to the Senate Floor analysis of AB 2677, “[t]he bill provides that an increased employer payment contribution that results in a lower hourly straight time or overtime wage is not considered to be a violation of the applicable prevailing wage determination so long as specified conditions are met. This bill provides that an increased employer payment contribution that results in a lower taxable wage is not a violation of the applicable prevailing wage determination if specified conditions are met.”
Farm labor contractors
AB 1675 (Bonilla) (Stats. 2012, c. 857) amends Labor Code section 1682. It increases the penalties for failing to license farm labor contractors.
AB 1855 (Torres) (Stats. 2012, c. 813) amends Labor Code section 2810. According to the Legislative Counsel’s Digest on the final bill version, “[e]xisting law prohibits a person or entity from entering into a contract or agreement for labor or services with specified types of contractors if the person or entity knows or should know that the contract or
agreement does not include funds sufficient to allow the contractor to comply with all applicable local, state, and federal laws or regulations governing the labor or services to be provided. This bill, in addition, would make these provisions applicable with regard to warehouse contractors.” [Author’s note: All the new laws took effect January 1, 2013, unless another date is indicated.] REGULATIONS
Pregnancy disability After two years of revisions and public comment, the Fair Employment and Housing Commission adopted new regulations applicable to California employers with five or more employees. Effective December 30, 2012, the regulations amend Title 2 California Code of Regulations, Div. 4. FEHC, Chapter 1, Subchapter 6A. Sex Discrimination: Pregnancy, Childbirth or Related Medical Conditions, commencing with Section 7291.2 (Register 2012, No. 48). Overall, the Commission acted to conform its regulations to Stats. 1999, c. 591 (A.B. 1670), which requires employers to provide reasonable accommodations to
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pregnant employees. In so doing, the Commission relied upon the legislative history of AB 1670. It noted that the Legislature “intended to permit employers to allow pregnant employees to remain in their current positions for longer time periods without the need for transfer, while assuring that less costly and disruptive steps (such as simply permitting more frequent restroom breaks or rest periods) are taken for pregnant employees who do not want or need to be transferred from their current positions.” (Citing to Assembly Judiciary Committee’s analysis of AB 1670, as amended May 6, 1999, p. 10-11.) The employer-attorney blogosphere is clogged with client warning regarding the numerous, significant changes to the law in this area. Space constraints do not permit sufficient coverage of them in this article. However, following are a few key highlights: • The definition of “disabled by pregnancy” has been expanded. The regulations now provide a non-exhaustive list of conditions that may render an employee “disabled by pregnancy” such as severe morning sickness, needing time off for prenatal or postnatal care, bed rest, postpartum depression, gestational diabetes, pregnancy-induced hypertension, preeclampsia, childbirth, loss or end of pregnancy, and recovery from childbirth, loss or end of pregnancy. • “Perceived pregnancy” discrimination banned. An employer may not discriminate against or harass an applicant or employee based upon “perceived pregnancy.” • Four months leave per pregnancy, not per year. Employees are now eligible for up to four months of pregnancy-disability leave (PDL) per pregnancy, not per year. The definition of “four months” has also changed, in terms of maximum leave entitlement. • Continuous insurance coverage required. Employers must now continue insurance coverage for the entire PDL period, under the same conditions as if the employee had not taken the leave. • New reinstatement requirements. An employer need not reinstate an employee
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to her exact same position if the employer can prove by a preponderance of the evidence that the employee would not have been employed upon her return for reasons unrelated to the leave, such as a mass layoff. Employers can no longer refuse to reinstate an employee to her same position by arguing that keeping her position open would substantially undermine the employer’s ability to operate the business safely and efficiently. Previously, employers were required to notify employees of comparable positions that became available within ten days of the employee’s scheduled date of reinstatement. Now, employers must notify the employee of comparable positions that become available within 60 calendar days of the employee’s scheduled date of reinstatement, or to which she is entitled because of a prior agreement or policy. • Reasonable accommodation protections. (1) Undue hardship is not a defense to reasonable accommodation because of the limited duration and scope of these accommodations. (2) An employer may accommodate a pregnant employee by transferring her to a less strenuous or hazardous position, if her health-care provider says it is medically
advisable, and if the employee is qualified. (3) An employer is not required to create a job solely to accommodate the employee if the employer (a) would otherwise not create the job, (b) would have to discharge another employee, or (c) would violate a collective bargaining agreement. However, the employer must create a light-duty job if it has done so for occupationally-injured employees. (4) The regulations also include a nonexhaustive list of other types of accommodations, such as modifying work schedules, providing stools or chairs, or allowing more frequent restroom breaks.
Disability discrimination and accommodation
The Fair Employment & Housing Commission was busy at the end of its lifespan last year. It also adopted new regulations, effective December 30, 2012, overhauling the disability discrimination and accommodation laws. The regulations amend Title 2 California Code of Regulations, Div. 4. FEHC, Chapter 1, Subchapter 9. Disability Discrimination, commencing with Section 7293.5; filed 12-26-2012; operative 12-30-2012 (Register 2012, No. 52).
The new regulations expand protections for disabled employees and set forth new requirements regarding disability discrimination, the interactive process, and reasonable accommodations. The California Chamber of Commerce notes that, as a result of these new regulations, disabilities and medical conditions that may not previously have come within the Fair Employment and Housing Act (FEHA) may now be covered. Here are a few key changes: • Emotional “support” animals may be required as a reasonable accommodation. An employee may request permission from an employer to bring a support animal to work as an accommodation for a disability, including, but not limited to, traumatic brain injuries or mental disabilities such as major depression. In making such a request, the employee must submit certification from a “health care provider,” the list of which was expanded to include clinical social workers, therapists, chiropractors, and other medical professionals. • The definitions of “mental” and “physical” disability are expanded. Specific examples have been added, including autism spectrum disorders, cerebral
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palsy, heart disease, multiple sclerosis, seizure disorder, clinical depression, obsessive compulsive disorder, posttraumatic stress disorder, schizophrenia, and bipolar disorder. • Examples are added to the definition of “Major Life Activities.” It is to be “construed broadly” to include physical, mental, and social activities such as sleeping, concentrating, thinking, communicating, and interacting with others. • Other areas addressed: (a) A clarification of employers’ and employees’ obligations during the interactive process. (b) The inclusion of telecommuting and reserved parking spaces as “reasonable accommodation.” (c) The discussion of a job function in a performance review now may help prove the function is “essential.” (d) The definition of “health care provider” is expanded to include new categories of therapists and medical professionals. (e) A new definition of “family member” includes fourth-degree relative, such as great-great-grandparents. The above summary is not intended to provide an exhaustive coverage of new labor and employment legislation and regulations. It only attempts to provide a head’s up regarding the new laws passed in 2012 that the California Chamber of Commerce finds noteworthy. You can obtain their list and brief bullet points by visiting their Web site. I hope that you found my review of their list helpful. Carolina Rose, J.D. (Stanford, 1976), is owner and president of Legislative Research & Intent LLC (LRI) which has researched the history and intent of over 10,000 enactments for over 1500 clients since 1983 (formerly Legislative Research, Inc.). Previously, she worked for seven years in the California State Legislature where she was responsible for over 200 bills. Ms. Rose is a recognized expert in the reconstruction of California legislative, regulatory and constitutional history and has written expert-witness opinions or provided testimony or consultations in over 100 cases at the administrative, trial and appellate levels. Visit her Web site www.lrihistory.com. She can be contacted at firstname.lastname@example.org.
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Hon. Rita Miller Los Angeles Superior Court
General damages in negligence actions Understanding the “why” behind recovery of general damages and the general damages gatekeepers for various types of cases [Ed. Note: This is the second and final part of a two-part article that originated in the March issue. Part one was a primer on recovering non-economic damages. Part two examines limitations to recovering damages beyond physical injury.] Key to a systematic understanding of when general damages are likely to be recoverable is the knowledge that lawmakers apparently are uncomfortable allowing general damages in cases that are not serious. The longtime, historical gatekeeper to the slippery slope of seriousness was physical injury. But that proved to be insufficient as the exclusive test of seriousness. For one thing, it allowed persons to sue based on minor physical injuries, while preventing persons to sue based on severe emotional injuries. It spawned fictions whereby sleeplessness and the like were characterized as physical injuries conferring standing, while serious trauma without physical manifestation was not. Consequently, new gatekeepers were developed to limit recovery of general damages to only the most serious cases. Under current law, if plaintiff is injured emotionally, but the traditional prerequisite of physical injury is not met, plaintiff is required to establish a high level of seriousness of the injury before recovery of general damages is permitted. The replacement of “physical injury” with “seriousness” is the blueprint for the relatively new cause of action for negligent infliction of serious emotional distress. Similarly, when plaintiff bases his claim on witnessing an injury to a third party, the courts have adopted the gatekeeper of standing, based on the closeness of the familial relationship between the person who suffered physical injury and the bystander plaintiff. This, like seriousness or physical injury, ensures the case is sufficiently serious before an 92 — The Advocate Magazine
award of general damages is authorized. The underlying reasoning appears to be that, when the gravamen of the tort is emotional distress to a plaintiff who has been traumatized by seeing physical injury to someone else, the emotional distress is most likely to be serious when the bystander is a close personal relative of the injured party, who sees the event and understands its seriousness. Conversely, the more remote the relationship, the less likely the bystander plaintiff is to suffer serious emotional distress. Thus, general damages are not recoverable in these less serious cases. You will see this reasoning manifested in causes of action for negligent infliction of serious emotional distress (by means of serious direct injury to the plaintiff or by virtue of witnessing the traumatizing injury of a close relative), loss of consortium, wrongful death, and elder abuse. Hopefully, you will see that a continuum has developed, based on how close the relationship is between plaintiff and the third-party victim and/or how serious the injury is. The level of seriousness, in turn, dictates whether general damages are recoverable. You also will see that, if these standing requirements are not met, the plaintiff will not be able to state a cause of action allowing general damages for negligence without having suffered physical injury. The physical injury gatekeeper remains the law when the newer gatekeepers are inapplicable. What follows is a more detailed history of the foregoing developments in the law.
Law formerly prohibited recovery if plaintiff had not suffered physical injury
Decades ago, the rule in negligence cases was that, where a plaintiff had not suffered physical injury, he could not
recover general damages. (Sloane v. Southern Calif. Ry. Co. (1896 ) 111 Cal. 668, 680.) This limitation was thought to be necessary to prevent bogus claims. However, a person experiencing a very frightening event, who suffered a physical reaction (headaches, nausea) because of the experience, qualified as someone who had suffered physical injury. (See Cook v. Maier (1939) 33 Cal.App.2d 581, 584 (automobile crash nearby caused fear for own safety resulting in physical symptoms.) It was not uncommon for this rule to work illogically, where a person with a relatively minor physical injury could recover general damages, but a severely traumatized person with no physical injury could not.
The rule was modified in Dillon v. Legg
There are at least two types of victims of negligent conduct: the direct victim who suffers physical injury, and the bystander, or indirect victim, who suffers no physical injury, but suffers emotional distress. When physical injury was required as a prerequisite to a damage claim, “indirect victims” or “bystanders” could not recover damages for emotional distress. In 1968, the California Supreme Court decided Dillon v. Legg (1968) 68 Cal.2d 7280. Dillon, along with its progeny, expanded the right to recover general damages to certain indirect victims, referred to as “bystanders.” Thus, a mother who witnesses her child killed or injured in an accident and is aware of the dire situation unfolding and is traumatized, may recover damages for emotional distress. The rules applicable to a claim by a bystander for negligent infliction of serious emotional distress are set forth most concisely in CACI 1621 and are
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summarized as follows: that defendant negligently caused injury or death to the victim, that plaintiff was present at the scene of the injury when it occurred and was aware that the victim was being injured, that plaintiff suffered serious emotional distress and that defendant’s conduct was a substantial factor in causing plaintiff ’s serious emotional distress. (See, Rodriguez v. Kirchhoefel (2005) 128 Cal.App.4th 427, 430.) The closeness of the relationship between the direct victim and the bystander is decided as a matter of law by the court. There are many subsequent cases that set the limits on what persons are sufficiently closely related to the direct victims to be permitted to sue as indirect victims, even though they did not suffer physical injury. Similarly, many cases discuss what the bystander must have observed, and when, to be entitled to recover for negligent infliction of serious emotional distress. The cases are too numerous to discuss here. There is a discussion of the development of the law at 6 B. Witkin, Summary of California Law (10th Ed.) section 1004 et seq., pages 270 et seq.
Building on Dillon v. Legg
In Molien v. Kaiser Foundation Hospital (1980) 27 Cal.3d 916, the California Supreme Court again modified the requirement of physical injury, this time for the benefit of direct victims. In Molien, a doctor had incorrectly diagnosed a wife with syphilis and had suggested that she advise her husband of the diagnosis, as he might have caused her to contract the disease. As one might imagine, marital problems ensued and the husband, a direct victim of the doctor’s error, suffered emotional distress. However, he was not physically injured. The California Supreme Court held that the husband could recover
emotional distress damages as a direct victim despite the lack of physical injury. The court reasoned that the requirement of physical injury was not a valid mechanism for sifting out bogus claims. In fact, physical injury was not a particularly apt predictor of the validity of a claim. The court indicated that legitimate direct victims should not be deprived of their claims based on a physical injury criterion that allowed such anomalous results. The rules applicable to a claim by a direct victim for “negligent infliction of serious emotional distress are set forth concisely in CACI 1620 and are summarized as follows: that defendant was negligent, that plaintiff suffered serious emotional distress, and that defendant’s negligence was a substantial factor in causing plaintiff ’s serious emotional distress. The result of Molien, Dillon and their progeny is that there is now an independent tort called “negligent infliction of serious emotional distress,” whereas emotional distress was viewed before Dillon and Molien as simply one species of damages recoverable for a negligent invasion of plaintiff ’s right to physical safety. The tort of “negligent infliction of serious emotional distress” has been applied in family-member bystander cases, in cases where the plaintiff had a reasonable belief that she had been exposed to HIV or cancer and to other factual scenarios. It is difficult to predict what new factual scenarios may be recognized in the future as meeting the criteria for negligent infliction of serious emotional distress. (See Gonzales v. Personal Storage (1997) 56 Cal.App.4th 464 for interesting insights into how appellate courts decide what factual scenarios justify liability for negligence without physical injury.)
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Claims of negligent infliction of emotional distress that do not fit Dillon and Molien did not abrogate the general rule that physical injury is required as a prerequisite to recovery of general damages. General damages still are not recoverable without physical injury unless the specific criteria prescribed in Dillon and Molien, or one of the other causes of action discussed below, are satisfied.
Limitations for loss of consortium Loss of consortium is considered a type of general damages. (Civ. Code, § 1431(b)(1).) There are many rules imposed on claims for loss of consortium. These mainly insure that only the
closest relative, the spouse, can recover general damages for an injury that does not involve physical injury to herself. Loss of consortium claims are limited to spouses. Unmarried cohabitants have been denied a claim for loss of consortium. (Elden v. Sheldon (1988) 46 Cal.3d 267, 277.) A child cannot recover for loss of her parent’s consortium (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 451) and a parent cannot recover for loss of his child’s consortium. (Baxter v. Superior Court (1977) 19 Cal.3d 461). Loss of consortium claims have been limited to injuries inflicted during the marriage. California courts have held that a wife cannot recover for a premarital injury to her husband. (Zwicker v. Altamont Emergency Room, etc. (2002)
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98 Cal.App.4th 26, 30.) In Zwicker, the court held that, where a man had been injured before his marriage, but the injury did not manifest itself until after his marriage, his wife did not have a loss of consortium claim because she was not married to him at the time of injury. However, the recent decision of the California Court of Appeal in Leonard v. John Crane, Inc. (June 13, 2012) 2012 Daily Journal DAR 7862, distinguished Zwicker from asbestos cases, holding that asbestos exposure before marriage, which is not manifested as illness until after marriage, gives rise to a loss of consortium claim. There appears to be a difference between appellate courts, which may result in Supreme Court review. As of the time of this writing, the time for review has not expired. Please note that a spouse cannot recover based on loss of consortium if his spouse has no claim. (Blain v. Doctor’s Company (1990) 222 Cal.App.3d 1048, 1067.) The loss of consortium claim is entirely derivative of the other spouse’s claim. However, as is discussed below, if your client is not a spouse, he may still have a wrongful death or elder-abuse claim, as these causes of action provide certain rights to more remote family members.
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There are two types of wrongful death actions. In the first, the decedent’s I N T H E representative sues on behalf of the decedent. In the second, a family member sues as a direct victim of the defendant’s killing of the decedent. Different rules apply to each. Where a wrongful death action is pursued by the decedent’s personal representative on behalf of the decedent’s estate, the law limits the decedent’s recovery to “the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived . . . .” (Code Civ. Proc., §§ 377.34, 377.61.)
In such an action, brought on behalf of the decedent, the decedent is prohibited from recovering “damages for pain, suffering or disfigurement.” (Ibid., Krouse v. Graham, 19 Cal.3d, supra at 72.) The second kind of wrongful death action is one brought by a spouse, child, parent, domestic partner, or more distant relative who can prove to have suffered a pecuniary loss as a result of the decedent’s death. These plaintiffs sue as direct victims, not “bystanders.” The damages recoverable by a plaintiff on his individual claim in a wrongful death action are limited to the economic benefits the plaintiff would have been expected to receive from the deceased if she had survived. (Code Civ. Proc., § 377.60, Elden v Sheldon, supra, 46 Cal.3d at 277.) The damages available in a wrongful death action brought on behalf of the family member include loss of anticipated financial support, gifts or benefits, household services that plaintiff would have received from the deceased, and out-of-pocket expenses for funeral and burial costs. In an action for wrongful death, as opposed to one for loss of consortium, the plaintiff may claim damages from the loss of society or companionship of the deceased, but only to the extent that some pecuniary value can be assigned to the loss. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 613.) However, the plaintiff may not recover in a wrongful death action for her own emotional distress. (Krouse v. Graham (1977) 19 Cal.3d 59, 72 (No recovery for non-economic damages in wrongful death action.).) This is consistent with Dillon v. Legg, where the only person whose non-physical injury is deemed serious enough to merit an award of general damages is the close relative who has witnessed and understood the gravity of what she was seeing. In wrongful death cases, the family member has not necessarily seen and been traumatized by the event, and may be a more remote family member. Apparently, the courts have concluded that the injury in a wrongful death action is not as serious as the one in a Dillon v. Legg “bystander” action. Consequently,
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the gatekeeper of the Dillon v. Legg requirements does not allow general damages for this lesser injury. Similarly, because general damages are not allowed, it is justifiable that more remote members of the family can state a cause of action for their less serious injury. In an action for wrongful death brought on behalf of a decedent’s estate, the decedent may be awarded punitive damages to which he would have been entitled if he had lived. (Rufo v. Simpson, supra, 86 Cal.App.4th at 616.) However, plaintiffs who pursue wrongful death actions on their own behalf generally are barred from recovery of punitive damages. (Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 450.)
Certain elder abuse/dependent adult cases involving egregious conduct
As is noted above, damages for pain and suffering generally are not recoverable in a wrongful death action. (Code Civ. Proc., § 377.34) However, this rule is inapplicable in elder abuse actions brought on behalf of a deceased elder or dependent adult when it is proven by clear and convincing evidence that the defendant was guilty of recklessness, oppression, fraud or malice in the commission of physical abuse, neglect or financial abuse. (See Delaney v. Baker (1999) 20 Cal.4th 23, 26.) In elder abuse cases, California Welfare Code section 15657(b) suspends the prohibition on pain and suffering awards to deceased persons (Code Civ. Proc., § 377.34), but imposes the MICRA $250,000 limit on the recovery of such damages. (Welf.& Inst., §15657(b) incorporating Civ.Code, § 3333.2(b).) The foregoing, plus the availability of statutory attorneys’ fees are two of the factors that have made elder abuse cases financially attractive to plaintiffs’ attorneys who specialize in this type of litigation.
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MICRA limitations on recovery of general damages in negligence actions
“MICRA” (Medical Injury Compensation Reform Act”) limits recovery of general damages in professional
Michael Zea negligence actions against health care providers at a maximum of $250,000. (Civ.Code, § 3333.2(b)). MICRA is anomalous because it imposes limitations on tort recovery that are not based on the usual criteria of causation, standing based on closeness of relationship or seriousness of the emotional distress.
Operators of motor vehicles while uninsured or DUI
Civil Code section 3333.4 prohibits recovery of non-economic damages to drivers or owners of vehicles who do not possess liability insurance and drivers who are convicted of driving under the influence during the accident giving rise to their injuries. It also provides that insurers will not be liable to indemnify a person for non-economic injuries if he falls into the foregoing categories. Of course, persons injured by such drivers can recover for non-economic injuries.
Plaintiffs injured when committing felonies
In actions for damages based on negligence, “a person may not recover any damages if the plaintiff ’s injuries were in any way proximately caused by the plaintiff ’s commission of any felony, or immediate flight therefrom, and the plaintiff has been duly convicted of that felony.” (Civ. Code, § 3333.3.)
Intentional tort • Emotional distress damages The rules discussed above apply to negligence cases. General damages are more frequently available in causes of action based on intentional behavior, which is more morally culpable than negligent conduct. Perhaps the underlying policy is that the bad faith or intent of the tortfeasor makes it unnecessary to protect him from the perceived dangers of an excessive or illogical award of emotional distress damages. The following are examples of claims that are not based on negligence and permit general damages: • Intentional infliction of severe emotional distress There is a recognized cause of action for intentional infliction of severe emotional distress that allows recovery of general damages. CACIs 1600 through 1604 set forth the elements concisely. They are summarized generally as follows: 1) that defendant’s conduct was outrageous; 2) that defendant intended to cause plaintiff distress or acted with reckless disregard of the probability that he would; 3) that plaintiff suffered severe emotional distress; and 4) that defendant’s conduct was a substantial factor in causing plaintiff severe emotional distress.
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CACI 1602 provides: “Outrageous conduct is conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized society. Outrageous conduct does not include trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure.” CACI 1604 provides: “Emotional distress includes suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation and shame. . . . Severe emotional distress is not mild or brief; it must be so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it. Plaintiff is not required to prove physical injury to recover damages for severe emotional distress.” It should be noted that the defined term “severe” emotional distress applies to the cause of action of intentional infliction of emotional distress and the term “serious” emotional distress applies to the cause of action for negligent infliction of serious emotional distress. Considering the definition of “severe” emotional distress, it is necessary for the plaintiff to have suffered more emotional distress than is needed for the negligent tort in order to collect general damages based on the intentional tort. The tort of intentional infliction of severe emotional distress has been extended to cases involving the making of habitual threats of physical violence, infliction of fear of exposure to AIDS, HIV and cancer, many types of employment misconduct, sexual harassment in the workplace, attempts to coerce the plaintiff by threats, intentional or reckless actions by persons in positions of power over plaintiff (employers, landlords, psychiatrists, physicians, attorneys, insurers, law enforcement officers, debt collectors and creditors, mortuaries, etc.), and conduct toward susceptible persons by individuals who know of the susceptibility. • Conversion Emotional distress damages are
available in conversion cases. (E.g., Gonzales v. Personal Storage (1997) 56 Cal.App.4th 464.) • Trespass and nuisance Courts have long held that, even without physical injury, and even though trespass involves a property interest, an occupant of real property can recover damages for “the discomfort and annoyance of himself and the members of his family and for mental suffering occasioned by fear for the safety of himself and his family when such discomfort or suffering has been proximately caused by a trespass or a nuisance.” (Arcadia, Calif., Ltd.v. Herbert (1960) 54 Cal.2d 328,337.) In other words, a plaintiff may recover damages for emotional distress if someone comes onto his land without the right to do so. Presumably, this rule arose long ago because the common law placed such a premium on quiet enjoyment of one’s home. The rule applies to acts outside the property, such as cutting off water supply, or creation of fumes and dust, which affect the occupants of real property. (Arcadia v. Herbert, supra, 54 Cal.2d at
338, Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265.) • Interference with contract or economic advantage Damages for emotional distress are available in causes of action for interference with contract or economic advantage, but with a caveat: it must have been foreseeable to the tortfeasor that the emotional distress was reasonably expected to result from the interference. (Rest.2d, Torts section 774A(1), See Ojala v. Bohlin (1960) 178 Cal.App.2d 292, 302.) • Insurance bad faith Insurance bad-faith cases introduce another variant. The insured can recover emotional distress damages without physical harm in an insurance bad faith case, provided that she has suffered financial harm. (Waters v. United Services Auto Ass’n (1996) 41 Cal.App.4th 1063, 1071, 1081.) • False imprisonment, malicious prosecution, abuse of process, invasion of privacy, defamation, FEHA, wrongful termination, fraud, breach of fiduciary duty, assault and battery, violation of civil rights
General damages are available in the causes of action listed above and many more. Hon. Rita Miller graduated first in her class from Loyola Law School in 1979, summa cum laude. She joined the downtown Los Angeles firm of Munger Tolles & Olson upon graduation, where she became a partner in 1985 and remained until 2000, specializing in civil litigation on behalf of plaintiffs and defendants. Judge Miller was appointed to the bench by Governor Davis in 2000. She currently sits in the Stanley Mosk Courthouse in downtown Los Angeles, where she handles general jurisdiction civil matters. Judge Miller was named Trial Judge of the Year by CAALA in 2012. Judge Miller serves on the Executive Committee of the L.A. Superior Court. She is an author of the California Judges Benchbook Series and also serves as Associate Editor of Gavel to Gavel, a magazine published by and for bench officers of the L.A. Superior Court. Judge Miller has been a founding member of the Loyola Law School Civil Justice Program since 2004.
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From the Editor Jeffrey Isaac Ehrlich Editor-in-Chief
About Appellate Reports: Cases in Brief this Issue
Jeffrey Isaac Ehrlich Recent cases of interest to members of the plaintiffs’ bar Editor-in-Chief Federal Tort Claims Act; intentional torts: Levin v. United States (2013) __ S.Ct. __ (U.S. Supreme). The FTCA waives the government’s sovereign immunity from tort lawsuits, but excepts from that waiver certain intentional torts, including battery. (28 U.S.C. § 2860 (h).) The original version Jeffrey Isaacsuit Ehrlich of the FTCA did not preclude against the alleged tortfeasor as a codefendant with the U.S., or even as the sole defendant. But later agency-specific statutes immunized certain federal employees from personal liability for torts committed within the course of their official these statutes Byduties. JeffreyOne IsaacofEhrlich is the Gonzales Act, which makes the Editor-in-Chief FTCA remedy preclusive of any suit against armed forces medical personnel. That Act also says that, “for the purposes of this section,” the intentional-tort exception to the FTCA “shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical . . . functions.” (10 U.S.C. § 1089(e).) After the Gonzales Act was enacted, Congress overhauled the FTCA in the “Federal Employees Liability Reform and Tort Compensation Act” (“Liability Reform Act”), which makes the FTCA remedy against the U.S. the exclusive remedy for torts committed by federal employees acting within the course and scope of their employment, without regard to agency affiliation or line of work. Plaintiff Levin suffered injuries in a cataract surgery performed at a U.S. Naval Hospital in Guam. He filed suit against the U.S. and the surgeon, alleging that he had withdrawn consent to operate before the surgery, and the surgeon had therefore committed battery. The district court found that the surgeon was acting within the course of his employment and released him under the FTCA, leaving the U.S. as the sole
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defendant. The Government then moved to dismiss the battery claim, based on the FTCA’s intentional-tort exception. The district court granted the motion, and the Ninth Circuit affirmed. The Supreme Court reversed. It held that the Gonzales Act’s direction in section 1089(e) abrogates the FTCA’s intentional tort exception and therefore permits Levin’s suit against the U.S. based on medical battery. Corporations, suspension and revival of corporate powers, notices of appeal; appellate jurisdiction: Bourhis v. Lord (2013) __ Cal.4th __ (Cal. Supreme). Brown Eyed Girl, Inc. (“Corporation”) and others filed suit against Lord and others (“defendants”) for property damage. Before trial, the defendants learned that Corporation’s powers had been suspended for failure to pay taxes. The defendants moved to preclude Corporation from offering evidence at trial based on the suspension. The trial court denied the motion contingent on the Corporation reviving its powers. After the trial court entered judgment for the defendants, the Corporation appealed. At the time it filed the appeal, it had not yet revived its corporate powers. It also appealed a post-trial award of attorney’s fees against it, also before its powers had been revived. Defendants moved to strike the notices of appeal on December 1, 2011. Corporation opposed, showing that on December 8, 2011, its corporate powers had been revived, and arguing that this validated the prior notices of appeal. The Court of Appeal denied the motion, based on two 1970s-era California Supreme Court decisions that held that revival of corporate powers validates an earlier notice of appeal. Affirmed. The Court had previously held in Rooney v. Vermont Investment Corp.
(1973) 10 Cal.3d 351 and Peacock Hill Assn. v. Peacock Lagoon Constr. Co. (1972) 8 Cal.3d 369 that the revival of corporate powers will revive a prior notice of appeal filed when the corporation’s powers have been suspended. The Court found that there was no reason to depart from this rule, which had apparently proved workable for the last 40 years, and which the Legislature could have changed at any time, but did not. The Revenue and Taxation Code sections at issue apply in a host of situations applying to different kinds of corporate actions. The Court cannot foresee what impact overruling Rooney and Peacock Hill might have in other contexts, but it could be substantial. Accordingly, any modification should come from the Legislature. The Court acknowledged that there is an inconsistency between the rule it applies to corporate revival of appeals, and to statutes of limitations, which are not retroactively revived when a corporation revives its status, but finds that the two rules can co-exist. Negligence, duty of care, good Samaritans, special relationships: Greyhound Lines, Inc. v. California Highway Patrol (2013) __ Cal.App.4th _ (5th Dist.) An SUV struck the center divider of SR 99 in Fresno in an early-morning, single car crash. The SUV came to rest on its side blocking either the number one (1) or number two (2) lane. Its headlights and taillights were out, and its dark undercarriage was facing oncoming traffic. At 2:14 a.m., a truck driver reported the accident to the CHP, stating that it was blocking lanes. The CHP 911 operator inputted some of the information into the computer-aided dispatch system, but did not include that the disabled SUV was blocking lanes, despite the fact that lane blockage was one of the CHP’s highest priorities. Because of this input
error, the call was assigned to a CHP unit at the Fresno jail, instead of to one that was one off-ramp away from the accident scene. Two or three minutes later, a Greyhound Bus struck the SUV, killing three passengers on the bus and three occupants of the SUV. Greyhound was sued based on its alleged negligence, and it cross-complained against the CHP, alleging that it was negligent because the CHP 911 operator failed to enter the code for lane blockage, which delayed the CHP response. The trial court sustained the CHP’s demurrer without leave. Affirmed, because the CHP did not owe the bus passengers a duty of care. (The question of tort immunity does not arise until after the court determines that a duty of care is owed.) In the absence of a special relationship, a person who has not created a peril has no duty to come to the aid of another. But a volunteer who undertakes to come to the aid of another as a “good Samaratan” is under a duty to exercise reasonable care. These general rules apply to law-enforcement personnel, including the CHP. The 911 operator’s statement that assistance was on the way did not create a special relationship to the bus passengers. The nonfeasance of the CHP 911 operator did not create the danger, and left the bus passengers in the same position they already occupied. Without detrimental reliance by, or an increase in the risk of harm to the bus passengers, there is no special relationship.
MICRA statute of limitations, not the two-year limitations periods for personalinjury actions. The trial court sustained the demurrer. Reversed. MICRA defines “professional negligence” as a negligent act or failure to act by a health-care provider in the rendering of professional services. Flores did not allege that the hospital was negligent in failing to lift the bed rail, or in otherwise failing to secure her – she alleged that the hospital was negligent in failing to adequately maintain its premises and equipment. The collapsing rail of an improperly maintained bed constitutes ordinary negligence, not professional
negligence. So the MICRA limitations period does not apply. Jeffrey Isaac Ehrlich is the principal of the Ehrlich Law Firm, with offices in Encino and Claremont, California. He is a cum laude graduate of the Harvard Law School, a certified appellate specialist by the California Board of Legal Specialization, and a member of the CAALA Board of Governors. His practice emphasizes appellate support for the Southern California trial bar and insurance bad-faith litigation. He is the editor-in-chief of Advocate magazine and a contributing author of the Rutter Group’s Insurance Litigation practice guide.
Negligence, Professional Negligence, MICRA, premises liability, statute of limitations: Flores v. Presbyterian Intercommunity Hospital (2013) __ Cal.App.4th __ (2d Dist., Div. 3.) Flores filed suit against the hospital almost two years after she claimed she was injured when she fell from a hospital bed after the bedrail collapsed. The hospital demurred, arguing that the action was one for professional negligence and was subject to the one-year APRIL 2013
The Advocate Magazine — 101
From the President Scott Cooper
Orange County Trial Lawyers Association
See you in Sacramento on May 7 CAOC’s Justice Day is when we will make the case for our clients in Sacramento Where will you be on Tuesday, May 7? If you didn’t answer “Sacramento,” it’s time to make some different plans. If at all possible, you should make every effort to attend the Consumer Attorneys of California’s Justice Day. For those who aren’t familiar with the event, it’s a day when trial lawyers from around the state meet in Sacramento to talk to legislators about the issues that are important to our clients and our practices. In this era of court budget cuts and other attacks on the civil justice system, our message could not be more timely and necessary.
The impact of court budget cuts
Our legislators need to understand the impact of the $1.1 billion in cuts from the court budget over the past five years. As reported by the Consumer Attorneys of California, those reductions have led to the closure of 46 courthouses and 164 courtrooms around the state and layoffs of nearly 2,000 court employees. The predictable results include significant delays in processing cases, long lines for court services, limited court operating hours and, in some counties, impossibly long trips to access the courts that do remain open. Although these cuts affect much more than just civil tort cases, make no mistake that this is a type of tort reform – if our clients’ cases cannot be heard – our clients cannot receive justice.
The attack on class actions
Of course, even if the courtroom doors are technically “open,” corporate forces are always trying to close them in other ways. Most recently, their efforts have focused on forced arbitration. On February 27, the U.S. Supreme Court heard oral arguments in the case of American Express Co. v. Italian Colors 102 — The Advocate Magazine
Restaurant. This is the latest in a series of cases seeking to curtail, or eliminate, the ability to hold companies accountable for their wrongful conduct by mandating individual arbitrations. At issue is whether plaintiffs – in this case, small businesses suing American Express for antitrust violations – can be forced into individual arbitration and denied the ability to shift or share expenses with other plaintiffs, including through class actions. Plaintiffs in that case developed and presented strong evidence that given the modest amount of individual damages at issue, the significant costs required to prosecute such a case would preclude any plaintiff from pursuing the case on an individual basis. An opinion upholding this forced arbitration provision would, for all practical purposes, shield American Express from any accountability and provide a roadmap to corporate immunity for all other U.S. companies. If that happens, the only solution may be legislative changes (most likely federal, but possibly state as well). As trial lawyers, we need to understand that our fight for justice is not limited to representing our existing clients in court. We are also called to fight more broadly for consumers and employees in Sacramento and Washington. We must use our advocacy skills outside the courtroom to support legislation that will right these wrongs, restore court funding, and preserve Californians’ access to justice.
A sense of urgency
If you’ve gone to Justice Day in the past, you don’t need me to tell you the importance of attending or what a rewarding experience it is. Each year I attend provides me with a renewed
sense of urgency and passion about getting our message out to those who make decisions crucial to us and our clients (and all Californians, for that matter). The consistent refrain from those who go for the first time is, “I can’t believe I didn’t do this earlier.” It is truly eye opening. If this will be your first time, do not be intimidated or worried that you don’t know how to “lobby.” First, CAOC provides some very simple and effective training for those who want it. Second, you will not be alone – you go into the legislators’ offices in groups with others who have done this before and will speak for the group. Of course, you are free to speak up if you’d like, and you are encouraged to do so, but don’t feel like the pressure will be on you to do all the talking. Our presence in numbers is just as important as the message we are communicating.
Of course, a trial lawyer gathering wouldn’t be complete without social events. The night before Justice Day (right after the reception hosted by CAOC’s Women’s Caucus and Diversity Committee), OCTLA will be hosting our annual mixer at Vallejo’s restaurant starting at 7:30 p.m. This event, which usually draws many elected officials in addition to lawyers from around the state, is always one of the highlights of the trip. So, please join us for Justice Day on May 7 and the receptions the night of May 6. As I’m writing this, Southwest Airlines still has good fares available. You can get more information and registration forms on OCTLA’s Web site at www.octla.org or on CAOC’s Web site at www.caoc.org. I hope to see you there.
From the Executive Director Stuart Zanville
Consumer Attorneys Association of Los Angeles
Empowering Plaintiff Executive Director Attorneys to Achieve Justice Zanville Six wordsStuart that explain what CAALA does to help you
CAALA room full of trial lawyers to settle on a If you are reading this column, you six-word statement. But they did and it are either a plaintiff ’s trial lawyer or you tells people exactly what CAALA does for stole someone else’s magazine. its members. Assuming it’s the former, I don’t Those six words are the “what.” If have to tell you that you represent conyou want to know “how” we do it, the sumers and not corporations or insuranswer is we connect, educate, provide ance companies. Or that you protect peobenefits and give a voice to our memple from unsafe products, unsafe mediStuart Zanville bers. cine, unfair business practices and negliCAALA Nearly 400 of CAALA’s attorneygent corporate conduct. members joined for the first time in 2012 Many of you are also members of and more than half of them are in their Consumer Attorneys of Los Angeles. You know who you are and what you do. This first, second or third year of practice. column is about what we do for you. They may not have known it at the time, The first question I’m asked when I but they joined because they believe that vision statement. tell people I’m Executive Director of CAALA is “What is CAALA and what Stuart Zanville Programs, events and resources does it do?” (Actually, that’s not true. Consumer Attorneys Association of Los Angeles We’ve created lots of new programs, The first question is usually, “How do events and resources that members, espeyou pronounce CAALA?” For the record, cially newer and younger attorneys, can my preference is “Cal-Uh” with the “Cal” utilize to achieve justice for the people pronounced as in California or calendar.) they represent. I don’t have enough I have numerous responses to the room in this column to give you all the question “What is CAALA?” All of them things we are doing but you can find true. them on our Web site: www.caala.org. • CAALA is a voluntary bar association. Of course you’ll want to attend • CAALA is a not-for profit Zanville mutual beneBy Stuart CAALA fit business trade association. Consumer Attorneys Association of Los AngelesVEGAS, our annual convention and signature event that connects and • CAALA is a practice-area-specific legal educates members and is the nation’s association representing the consumer most successful gathering of trial attortrial bar. neys. • CAALA is the nation’s largest local Many of our renowned education association of plaintiff trial lawyers. programs are now offered free to memUntil recently, answering the quesbers. These include in-person seminars tion “What does CAALA do?” was a bit as well as online Webinars that can be more difficult. accessed on your computer. In late February our Board of We offer more than two dozen free Governors finalized CAALA’s Vision membership programs to connect you inStatement. We now have a Vision person with other trial lawyers. These Statement and the answer to the question range from member mixers to small for“What does CAALA do?” mat roundtables for specific categories of Empowering Plaintiff Attorneys members, i.e. women and new lawyers. to Achieve Justice There are easily accessible new resources for attorneys on the CAALA I know it’s only six words, and Web site including a Resource Library believe me it was a challenge to get a
From the Executive Director
From the Executive Director
with practice-area documents for new lawyers and easy access to articles that ran in the Advocate magazine. These are all free for members. To save you time and money, we have assembled a list of more than 200 service providers that want to do business with trial lawyers. Connecting with them in-person or online is another great resource for members. We are all aware of the major changes taking place in the Civil Courts in Los Angeles. CAALA will provide members with up-to-date information about those changes. You can meet directly with judges and the Court leadership at a variety of in-person events we will be presenting this year. We put out regular e-mails to all members with changes that affect them and have created the Court Report Web site (www.LASCCourtReport.com) to provide easy access to up-to-date information from the Court. In the area of Government Relations, we provide up-to-date information about the political activities of CAOC and AAJ in Sacramento and Washington, D.C. Members can also attend in-person meetings with legislators to establish relationships and explain first-hand who you are and what you do. CAALA’s membership strategy is simple. We let our actions speak for themselves. We don’t do membership drives or phone banks to get new members. Instead, we trust our members to spread the word about what we do to back up that six word vision statement: Empowering Plaintiff Attorneys to Achieve Justice. You can reach Stuart Zanville at firstname.lastname@example.org.
The Advocate Magazine — 103
Sacramento Update By Lea-Ann Tratten CAOC Political Director
The Class of 2024 As we dive into this “off” election year, let’s take a moment to meet the new members of the Legislature elected under the new 12-year term-limit law. Under those new term rules, most of these new members will be able to serve a dozen years in a single house of the Legislature. For those elected to the Assembly, this doubles the possible service in that house. In the Senate, it means an additional four years are added to the prior limit of eight years in the upper house. This change offers hope that giving elected officials an opportunity to spend more time in a single house will produce a more functional Legislature. Along with the extended terms, we are dealing with volume on the Democratic side of the column. Most of you know that for now, historic supermajorities of Democrats were elected to both the Senate and the Assembly. Exactly how Democrats utilize that power is the big question for 2013. One thing is for sure: With the super majority comes undeniable accountability. Republicans will on their own have little influence over policy. But in instances where Republican lawmakers join with Democrats whose politics run counter to the party platform and align more closely with their corporate backers, they will continue to have the combined power to block progressive legislation. Among CAOC’s priorities this year is building strong relationships between our members and the new legislators. We are delighted to have Paul Woods join our staff as our Grassroots Manager. Please take a look at this list of new Southern California legislators and let Paul know if you have a relationship with a particular lawmaker. And if you don’t, contact Paul at email@example.com or on the phone at 916-669-7141, and we will work to bring you into our liaison program.
104 — The Advocate Magazine
Here is our new crop of Southern California lawmakers: Richard Bloom (AD 50 – Santa Monica/West Hollywood) • Family law attorney • Santa Monica City Council • Coastal Commission Raul Bocanegra (AD 39 – E. San Fernando) • Leg. Director for Fuentes, educator • Focus on small business development, safety, education Cheryl Brown (AD 47 – Rialto) • Biz owner, publisher • Focus on green jobs, education, local government. Ian Calderon (AD 57 – Whittier) • Legislator Field Deputy • Appointed to Assembly Insurance Committee • Focus on education, small biz, farm-worker health Ed Chau (AD 49 – Monterey Park) • School Board member, lawyer • Appointed to Assembly Judiciary Committee • Focus on education, jobs, budget Steve Fox (AD 36 – Palmdale) • Won general election by 145 votes over Ron Smith • Lawyer and teacher from the Antelope Valley • Focus on education and restoring education funding Cristina Garcia (AD 58 – Downey) • Math teacher • Appointed to Assembly Judiciary Committee • Focus on government transparency, health care, education, lowering water rates, seniors, public safety, student debt Jimmy Gomez (AD 51 – East L.A.) • Educator, Nurses Advocate • Appointed to Assembly Health Committee • Focus on green jobs, schools, safety Chris Holden (AD 41 – Pasadena) • Councilman, business owner
• Focus on jobs, education, public transit, infrastructure, protecting public/open land, natural resource protection Jose Medina (AD 61 – Riverside) • Teacher • Focus on jobs, schools, balancing budget, clean air and water Al Muratsuchi (AD 66 – Torrance) • Prosecutor (attorney for AG prosecutes for Medical Board), school board member • Appointed to Assembly Judiciary Committee • Focus on economy, education, environment (esp. coasts, recycling, conservation) Adrin Nazarian (AD 46 – Sherman Oaks) • Worked as Councilman Paul Krekorian’s deputy • Appointed to Assembly Health Committee • Focus on education, water conservation and remediation, renewable energy infrastructure Anthony Rendon (AD 63 – South Gate) • Educator, non-profit director, former CLCV interim E.D. and board member • Focus on environmental/natural resources, safety, health care, jobs, education Ricardo Lara (SD 33 – Bell Gardens) • Worked as District Director for Speaker Fabian Nunez and Capitol staffer for Kevin de Leon • Appointed to Senate Appropriations and Rules • Focus on government accountability and oversight, public education, immigrant rights, LGBT rights Richard Roth (SD 31 – Riverside) • Attorney • Appointed to Senate Insurance Committee • Focus on jobs (especially UC Riverside Medical School, infrastructure & transit, green jobs), veterans’ and women’s rights, public safety
Washington Update By Linda Lipsen CEO, American Association for Justice New Judicial Task Force AAJ has formed a new Judicial Task Force to complement the association’s ongoing activity with coalitions working to expedite the filling of federal judicial vacancies. AAJ’s coalition work will continue to ensure that your voice is represented when these groups communicate with members of Congress and the White House. The Judicial Task Force is comprised of approximately 30 AAJ members representing each of the federal judicial circuits. The goals are to increase the number of pro-civil justice federal judges, increase the level of professional diversity of federal judicial nominees, identify nominees that may have an anti-civil justice bias, increase the number of trial lawyers serving on individual Senator’s judicial selection committees, increase AAJ members’ participation with the ABA judicial selection committee, and to educate AAJ members promptly about judicial vacancies. The task force met for the first time during AAJ’s Winter Convention in Miami, held Feb. 9 to 13. Discussion included an overview of the process of how judges are selected and reviewed prior to nomination. During his first term in office, President Obama nominated four people to fill vacancies in the U.S. Court of Appeals District of Columbia Circuit, but none was confirmed. As you know, most federal agency decisions are appealed directly to the D.C. Circuit, so this court’s decisions have national implications. You can assist the work of AAJ’s Judicial Task Force by notifying AAJ when you are aware of any vacancies and if you have strong potential nominees. If you have information, please contact our Director of Federal Relations, John Bowman at firstname.lastname@example.org.
The Advocate Magazine — 105
Advertiser’s Index Contents Index Advertiser’s ADR Providers ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 Carrington, R.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87 Daniels, Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 DiCaro Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . .105 Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Graver, Darryl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96 JAMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . .101 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . .24 PMA Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . .99 Announcements and Career Opportunities CAALA Membership . . . . . . . . . . . . . . . . . . . . . . . . . .73 CAALA PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 CAALA Vegas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71 Jury Verdict Alert . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65 Kiesel + Larson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Attorneys – Appeals Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 Pine & Pine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 Steven B Stevens . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76 Attorneys - Accepting Referrals Bailey Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Bisnar | Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Bronstein, Peter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Cheong Denove Rowell Bennett & Karns . . . . . . . . . .43 Cook, David . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84,85 Dordick Law Offices . . . . . . . . . . . . . . . . . . . . . . .54-55 Edzant, Barry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86 Engstrom, Lipscomb & Lack . . . . . . . . . . . . . . . . . . . .27 Galipo, Dale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 Girardi | Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77 Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . .1 Hodes Milman Liebeck Mosier . . . . . . . . . . . . . . . . .50 Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Law Offices of Lisa Maki . . . . . . . . . . . . . . . . . . . . . .59 Makarem & Associates . . . . . . . . . . . . . . . . . . . . . . . .25 McNicholas & McNicholas . . . . . . . . . . . . . . . . . . . . .9 Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .35 Michels & Watkins . . . . . . . . . . . . . . .Inside Back Cover Nemecek & Cole . . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Panish Shea & Boyle . . . . . . . . . . . . . . . . . .Back Cover Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . . .4 Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Taylor & Ring, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 The Traut Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Court Reporters Atkinson Baker Court Reporting . . . . . . . . . . . . . . . . .52 Jonnell Agnew & Associates . . . . . . . . . . . . . . . . . . . .94 Kusar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 Personal Court Reporters . . . . . . . . . . . . . . . . . . . . . .95
Defense Medical Exam Observation Advantage Representatives . . . . . . . . . . . . . . . . . . . .97 PRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 Expert Witnesses – Medical Forensic Autopsy Services . . . . . . . . . . . . . . . . . . . . .70 Graboff, Dr. Steven . . . . . . . . . . . . . . . . . . . . . . . . . . .60
106 — The Advocate Magazine
Expert Witnesses – Medical (cont.) Luckett, Karen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87 Expert Witnesses - Technical & Damages Feldman, Phillip . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 Forensis Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
ASSOCIATION OF LOS ANGELES
Consumer Attorneys Association of LA CAALA 800 West Sixth Street,#700 Consumer Attorneys A L A Los Angeles, CA 90017 CAALA (213) 487-1212 Consumer Attorneys www.caala.org A L A SSOCIATION OF
Financial Services California Attorney Lending . . . . . . . . . . . . . . . . . . . .83 CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 EPS Settlements Group . . . . . . . . . . . . . . . . . . . . . . . .90 Farber, Patrick (Struct. Settlements) . .Inside Front Cover Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . .15 Lawsuit Financial . . . . . . . . . . . . . . . . . . . . . . . . . . . . .88 Pensions Annuities and Settlements LLC . . . . . . . . . . .51 RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Ringler & Associates – Michael Zea . . . . . . . . . . . . .97 Summit Structured Settlements . . . . . . . . . . . . . . . . . .93 The James Street Group (Structured Settlements) . .105
April 16, 2013 New Lawyers Roundtable 6:00-7:30pm CAALA Office 800 W. 6th Street, Suite 700 Downtown Los Angeles
Graphics/Presentations/Video Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 Executive Presentations . . . . . . . . . . . . . . . . . . . . . . . . .7 High Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 Verdict Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . .79,89 VaheandVache.com . . . . . . . . . . . . . . . . . . . . . . . . . .21
May 10, 2013 Making Better Trial Lawyers featuring Rick Friedman 8:00am-12:15pm Beverly Wilshire Hotel 9500 Wilshire Blvd. Beverly Hills
Information Service Providers West, A Thomson Reuters Business . . . . . . . . . . . . . . .63
Board & Committee Meetings Executive Committee – CAALA Offices Downtown Los Angeles, 6:00pm April 4, May 2, June 6
Insurance Programs Lawyers Mutual Insurance Company . . . . . . . . . . . . .57 Lawyer’s Pacific Insurance . . . . . . . . . . . . . . . . . . . . .19 Narver Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . .61 Investigators Hudson Investigations . . . . . . . . . . . . . . . . . . . . . . . . .42 Shoreline Investigations . . . . . . . . . . . . . . . . . . . . . . .68 Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . .81 Legal Marketing Pro Se Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89 Legal Nurse Consultants Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86 Legal Research Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Legal Support Services Lion Street Litigation Support . . . . . . . . . . . . . . . . . . .64 USA Express Legal & Investigative Services . . . . . . .34 Medical & Dental Service Providers Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . .49 Doctors on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Glendale Surgery Center . . . . . . . . . . . . . . . . . . . . . .67 Injury Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 Landmark Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . .38 North Valley Eye Medical Group . . . . . . . . . . . . . . .96 Power Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12-13 Total Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41 Organizations CAOC – PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98
April 24, 2013 Jury Selection for Any Court Venue 5:00-8:45pm CAALA Conference Center 800 W. 6th Street, Suite 700 Downtown Los Angeles
Board of Governors – CAALA Offices Downtown Los Angeles, 6:00pm April 18, May 16, June 20 Education Committee – CAALA Offices Downtown Los Angeles, 5:00pm April 18, May 16, June 20 New Lawyers Committee - CAALA Offices Downtown Los Angeles, 6:00pm April 16, May 14
Orange County Trial Lawyers Assn. 25602 Alicia Parkway, #403 Laguna Hills, CA 92653 (949) 916-9577 www.octla.org April 25, 2013 State of the Court 6:00 - 8:00pm Tustin Ranch Golf Club 12442 Tustin Ranch Road Tustin May 23, 2013 Who is the Orange County Jury? 6:00 - 8:00pm Tustin Ranch Golf Club 12442 Tustin Ranch Road Tustin
CAALA Resource Center
Get the latest court news at LASCCourtReport.com As a consequence of the huge cuts to state and local court budgets, numerous changes have taken place in the civil branch of the Los Angeles Superior Court. These changes directly impact CAALA members and information about the changes can be difficult to obtain and often confusing. In response to this, CAALA created and launched an online resource for our members called COURT REPORT in August 2012. COURT REPORT is an online newsletter and corresponding Web site www.LASCCourtReport.com which is dedicated to passing along the most recent changes to the Civil Courts. CAALA members receive COURT REPORT by e-mail on a regular basis but are also encouraged to visit the
COURT REPORT Web site at www.LASCCourtReport.com on a regular basis for the latest court news. Most recently, the Los Angeles Superior Court announced its Court Consolidation Plan. These changes will be implemented in phases commencing in March 2013, and continuing through June 30, 2013. Important documents that relate to these changes went into effect on March 18, 2013. They can be found and downloaded from the COURT REPORT Web site. These documents include changes to Personal Injury Cases, Limited Civil Cases, New Small Claims Cases and Limited Jurisdiction Unlawful Detainer Cases.
New CAALA Affiliate Vendors
Our Affiliate Vendors are an excellent resource to help improve your practice. They provide goods or services specifically for plaintiff trial lawyers. Please support our Affiliate Vendors by contacting them for your business needs and projects.
CaseLinkUp, Inc. 6100 Wilshire Blvd., Suite 1170 Los Angeles, CA 90048 (323) 476-1813 Contact: Julie Greenberg e-mail: email@example.com
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The Advocate Magazine — 107
From the President Lisa Maki
Consumer Attorneys Association of Los Angeles
The assassination of Dr. Martin Luther King Remembering Dr. King and others who peacefully made a difference in our lives On April 4, 1968, Dr. Martin Luther King, Jr. was assassinated at the Lorraine Motel in Memphis, Tennessee. He was only 39 years old. A fugitive from the Missouri State Penitentiary was arrested in London at Heathrow Airport, extradited to the United States and charged with the crime. A year later he entered a guilty plea. James Earl Jones died in prison in 1998 at the age of 70 but spent many years attempting to withdraw his guilty plea. Dr. King’s family and others believed that the assassination was carried out by a conspiracy involving the United States Government and others. Many disagreed. In 1999 a wrongful death case was brought before a jury and the King family requested $100 in damages. During trial, Lloyd Jowers, a bar owner, was named as a defendant. During trial, sworn evidence of Jowers’s confession and a link to a broader conspiracy were established. The King family won their case. The 1999 King civil trial was lightly attended. Only four journalists were present in court and only two of them during the entire trial. Ms. Barbara Reis, U.S. correspondent for the Lisbon daily, Publico, was present for several days and noted, “Everything in the U.S. is the trial of the century: O.J. Simpson’s trial was the trial of the century; Clinton’s trial was the trial of the century. But this is the trial of the century, and who’s here?” Hours after Dr. King was killed, Robert F. Kennedy responded with a powerfully simple and spontaneous speech to a black audience in Indianapolis who had not heard of the assassination. He ignored his 108 — The Advocate Magazine
speechwriters’ words, and scribbled out a few of his own notes. “Ladies and gentlemen, I’m only going to talk to you just for a minute or so this evening because I have some very sad news ...and that is that Martin Luther King was shot and was killed tonight in Memphis, Tennessee.” When the wailing and screams by the crowd subsided enough, Kennedy continued his address slowly, measuring his words, “Martin Luther King ... dedicated his life ... to love ... and to justice between fellow human beings, and he died in the cause of that effort.” The crowd became silent and Kennedy spoke of the loss of his brother John, which he had not done before publicly and scarcely did so privately. With his voice quivering, Robert Kennedy continued, “[m]y favorite poem, my favorite poet was Aeschylus. He once wrote, ‘Even in our sleep, pain which cannot forget falls drop by drop upon the heart.’ Baring his heart to the crowd, his words stand as an example of what I believe to be our role as trial attorneys and officers of the court: To heal, to educate and to lead. We do so in courtrooms, using our words and our minds as a form of peaceful protest, an expression of our constitutional right. This month, I hope you will remember and honor Dr. King, and other lesser known persons who peacefully made a difference in your lives. Here are a few of mine: • Lady in White: Inez Mulholland Boissevain. A lawyer and one of four mounted heralds of the Suffrage Parade on March 3, 1913, who led a procession of more than 5,000 marchers down Washington D.C.’s
Pennsylvania Avenue. Women were allowed to vote in this country seven years later. • Fists in the Air: At Mexico City’s 1968 Olympic Games, AfricanAmerican track athletes Tommie Smith (gold medalist) and John Carlos (bronze medalist) showed their opposition to the continued oppression of blacks in the U.S. At the medal ceremony for their 200-meter race, they stood in black socks to represent black poverty and raised their black-gloved fists in a cry for black unity. The silver medalist on the podium, Australian Peter Norman, wore an Olympic Project for Human Rights badge on his tracksuit in solidarity. This cost him a hero’s welcome upon his return home. Both Smith and Carlos were removed from the Games and none of the three has ever recanted his stance. • The Unknown Rebel: In mid1989, students began gathering in Beijing’s Tiananmen Square to mourn the passing of pro-democracy leader Hu Yaobang. During the next seven weeks, people from all walks of life joined the group to protest peacefully for greater freedom. The Chinese government deployed tanks and randomly fired shots into the crowd killing more than 200 innocent people. One lone, defiant man stood directly in front of the line of tanks, weaving from side to side to block them, even climbing on top of the first one. His picture was seen around the world but his identity remains unknown and it is not clear whether he was killed or is hiding in Taiwan.
OVER OVER TEN FIGURES IN VERDICTS & SETTLEMENTS 8-Figure Verdict Verdict Cerebral Palsy
8-Figure Settlement Wrongful W rongful Death
7-Figure Verdict Verdict Brain Damage
7-Figure Arbitration A Award ward Misdiagnosis
7-Figure Verdict Verdict Spinal Cord Injury
7-Figure Settlement Birth Injury
7-Figure Settlement Baby Injury
7-Figure Settlement TTransplant ransplant
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