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February 2000 
Vol. 6 No. 2 ISSN 1087-6219
Copyright and Trademark Notice | Disclaimer
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In a 3-1-3 decision, the California Supreme Court has allowed a branch manager with the title of vice president to pursue her Fair Employment and Housing Act (FEHA) claim against a national bank. However, if the plaintiff had been a higher-ranking officer with bank wide operational authority, the claim would have been preempted.
The National Bank Act authorizes a national bank's board of directors to appoint “a president, vice-president, cashier, and other officers,” and “dismiss said officers or any of them at pleasure.” 12 U.S.C. § 24. Three justices (Mosk, Werdegar and Hening of the First District Court of Appeal, sitting by special assignment) concluded that the Act had been impliedly amended to allow bank officers to pursue remedies under Title VII and the Age Discrimination in Employment Act (ADEA). Allowing a bank officer to pursue remedies under FEHA that do not exceed those available under Title VII and the ADEA does not conflict with the National Bank Act. (FEHA provides for more extensive damages, and has these additional protected categories: disability, medical condition, marital status, ancestry and sexual orientation.)
Justice Kennard agreed that the plaintiff could pursue her FEHA claim. She thought that Congress only intended to cover high-level officers with bank wide management authority. Therefore, there was no conflict with federal law in allowing a low-level manager to pursue all state remedies.
The three dissenting justices (Brown, George and Huffman of the Fourth District Court of Appeal, sitting by special assignment) concluded that the National Bank Act preempted any FEHA claim. They were not convinced that Title VII and the ADEA had impliedly amended the Act. In any event, Congress intended to free national banks from state attempts to define their obligations to their officers. Justice Kennard agreed that there should be complete preemption for officers covered by the Act.
Peatros v. Bank of America NT & SA, 91 Cal. Rptr. 2d 659 (2000).
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The Ninth Circuit has ruled that a film clip is not a trademark. Copyright law is the source of protection for film rights.
Comedy III asserts rights in the personalities and likenesses of the Three Stooges. New Line Cinema released a movie called “The Long Kiss Goodnight” in 1996. In the movie, a clip from a Three Stooges movie plays on a television set in the background for less than 30 seconds. Comedy III claimed that New Line infringed on its trademark in the name, characters, likeness and overall “act” of the Three Stooges. The copyright in the Three Stooges film had expired.
The Ninth Circuit rejected the claim. Trademark protection is for symbols that identify goods and services, and distinguish them from other goods and services. The film clip did not.
The Copyright Act provided protection for the clip. If copyrighted material passes into the public domain, trademark law cannot then protect it without nullifying the Copyright Act.
The court distinguished several cases that had granted trademark protection for celebrity likenesses and voices. Those cases involved the use of confusingly similar likenesses and voices to sell products. New Line reproduced a recording of the Three Stooges' work as part of its own artistic work. There was no trademark infringement.
Comedy III Prods., Inc. v. New Line Cinema, 2000 WL 14446 (9th Cir. Jan. 11, 2000).
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The Second District Court of Appeal in Los Angeles has ruled that a public employee who accepted a demotion in lieu of layoff as a result of a financial crisis was not entitled to a hearing before the demotion. A post-demotion hearing is sufficient to satisfy due process requirements.
Robert Duncan worked for the Department of Insurance as an associate life actuary. In 1996, the Department of Insurance faced a financial crisis. The Legislature reduced its budget by $2 million. Litigation against the Department forced the refund of $13.5 million, and reduced future revenue. To save money, the Department decided to lay off 45 employees in 24 different civil service classifications, based on seniority.
The Department notified Duncan that it would lay him off unless he accepted a demotion that reduced his monthly pay by $1,508. He chose the demotion, and appealed the Department's decision to the Department of Personnel Administration, which sustained the decision after an evidentiary hearing before an administrative law judge.
Duncan then sought a writ of mandate on the ground, among others, that he had not been afforded a hearing before being forced to accept the demotion. The trial court denied the petition, and the Court of Appeal affirmed.
Permanent public employees have a property interest in their jobs. That means that they may not be discharged or subjected to discipline without cause, and that their employers must comply with procedural due process requirements. Skelly v. State Personnel Bd., 15 Cal. 3d 194 (1975).
The process that is due varies depending upon the circumstances. For example, discharge requires both a pre-deprivation hearing, and a post-deprivation hearing. To determine what process is due, the courts balance three factors: (1) the private interest that will be affected, (2) the risk of an erroneous deprivation under the procedure used, and (3) the probable value of any additional procedural safeguards.
In this case, Duncan's post-deprivation hearing was sufficient. First, Duncan's private interest was minimal because he remained employed, and suffered no stigma from the financially induced layoff. Second, the risk of erroneous deprivation was minimized by the substantial resources that the Department devoted to determining how to implement the agency-wide layoffs. Third, the Department had a significant interest in taking quick steps to resolve its economic woes in a time of financial crisis.
Duncan v. Department of Personnel Admin., 2000 WL 92250 (Cal. Ct. App. Jan. 28, 2000).
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The Riverside Division of the Fourth District Court of Appeal has upheld the dismissal of a retaliation complaint for failure to allege adverse employment action. The employer's actions did not have a substantial and detrimental effect on the plaintiff's employment.
Carla Thomas was an African American woman who worked as a corrections officer for the California Corrections Department. She alleged that the Department retaliated against her for filing several administrative complaints about alleged racial and gender discrimination. The alleged acts of retaliation were:
(1) Refusing to provide medical aid when she became ill at work, (2) intimidating coworkers whose depositions she wished to take, (3) giving of orders by supervisors who were not “her” supervisors, (4) negative job evaluations, (5) failing to deliver her paycheck on a timely basis, and (6) interfering with appointment to a committee of the Chino Valley Federal Credit Union.
Since there were no California decisions that explained what constituted sufficient adverse employment action to support a retaliation claim, the Court of Appeal looked to federal authorities. Most federal Court of Appeals require a materially adverse change in the terms of employment. It quoted the following statements from federal decisions with approval:
“Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action. … If every minor change in working conditions or trivial action were a materially adverse action then any action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.”
Thomas did not allege sufficient material change. Most of the actions were one time events. The other allegations were not accompanied by facts that evidenced a substantial and detrimental effect on her employment.
Thomas v. Department of Corrections, 91 Cal. Rptr. 2d 770 (2000).
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The Second District Court of Appeal in Los Angeles has ruled that the escape of the perpetrators did not insulate a property owner from liability for a criminal assault. The plaintiff should have the opportunity to convince the jury that she would not have sustained her injury if the property owner had provided adequate security.
Three assailants attacked Marianne Saelzler while she was delivering a Federal Express package to the Sherwood Apartments in Bell Flower in mid-afternoon. The assailants were never apprehended.
The owner of Sherwood Apartments knew about frequent, recurring and similar criminal activity on the premises. Security at Sherwood Apartments was lax. Fences and gate doors were frequently reported broken. Locks went unrepaired. Security patrols were only provided at night In response to the property owner's motion for summary judgment, Saelzler's security expert submitted a declaration stating that the attack would not have occurred if there had been adequate security.
The trial court granted summary judgment, because Saelzler could not prove that the lax security caused her injuries. Because the assailants were never identified, she could not foreclose the possibility that they had been residents of the complex who would have had access no matter what security measures were in place. See, e.g., Nola M. v. University of Southern California, 16 Cal. App. 4th 421 (1993).
The Court of Appeal reversed. Since crime was so prevalent, and security so inadequate, Saelzler should not have to prove that inadequate security assisted her particular assailants. Causation is lacking only when the evidence shows that the crime was an exception, that is, that it would have happened even if the property owner provided reasonable security precautions.
Saelzler v. Advanced Group 400, 2000 WL 62099 (Cal. Ct. App. Dec. 27, 1999).
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Subsequent treatment of decisions reported on in earlier issues:
Dawavendewa v. Salt River Project Agricultural Improvement & Power Dist. (October 1998 issue), cert. denied, 2000 WL 12563 (Jan. 10, 2000).
Gelini v. Tishgart (January 2000 issue), now reported at 77 Cal. App. 4th 219 (1999).
Lagatree v. Luce, Forward, Hamilton & Scripps (October 1999 issue), time for granting or denying review extended to Jan. 20, 2000.
Lee v. Technology Integration Group (March 1999 issue), review dismissed and cause remanded (Jan. 25, 2000). The decision may not be cited. Cal. R. Ct. 976(d), 977.
Sposato v. Electronic Data Sys. Corp. (October 1999 issue), petition for certiorari filed (Jan. 5, 2000).
Swenson v. County of Los Angeles (November 1999 issue), review granted (Jan. 13, 2000). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Warden v. State Bar of California (October 1999 issue), petition for certiorari filed (Jan. 14, 2000).
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