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April 2000 
Vol. 6 No. 4 ISSN 1087-6219
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The California Supreme Court has ruled that an employer who requires its employees to travel to a work site on its own buses must pay for the time spent on the buses. That is part of the employees' “hours worked” under the Industrial Wage Commission's wage orders.
Royal Packing required its agricultural employees to meet for work each day at specified assembly points. Royal Packing then transported them in its own buses to the fields where they actually worked.. At the end of each day the buses took the employees back to the assembly points. Work rules prohibited the employees from using their own transportation to get to and from the fields.
The Industrial Welfare Commission formulates wage orders that govern employment in California. Those wage orders require employers to pay their employees for all “hours worked.” Most of the wage orders, including the one applicable to agricultural workers, define “hours worked” as “the time during which an employee is subject to the control of any employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”
The Supreme Court ruled that the time on the buses was included because the employees were under the control of the employer. The fact that they were not suffered or permitted to work on the buses did not matter. “Includes” is a term of enlargement, which means that the definition is expanded by, rather than limited to the time that an employee is suffered or permitted to work.
Royal Packing argued that the employees were not under its control while on the buses, because they could read or perform other personal activities. The Supreme Court rejected the argument, noting that they were foreclosed from many activities, such as running errands, in which they might otherwise engage if allowed to use their own transportation.
Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000).
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The San Diego division of the Fourth District Court of Appeal has ruled that a highway patrol officer owed a duty of care to the occupants of a motor vehicle when he directed its driver to stop for a traffic violation. It also found a triable issue as to whether the officer was negligent in making the traffic stop in the median instead of on the right shoulder.
Shortly after 5:00 p.m. on August 15, 1996, California Highway Patrol Officer Richard Hedgecock directed a speeding driver to pull over and stop in the center median on Highway 78. As Officer Hedgecock was walking back to his motorcycle after writing citations, a pickup truck approached partly in the median and partly in the adjacent traffic lane. The driver ignored Officer Hedgecock's warning signals, and struck the rear of the stopped vehicle, seriously injuring the occupants.
The Court of Appeal concluded that there was a duty of care, based on the following factors: (1) It was reasonably foreseeable that a car could veer out of the traffic lane onto the median. (2) It was certain that the plaintiffs suffered injuries. (3) There was a direct connection between Officer Hedgecock's direction and the ensuing accident. (4) If he acted unreasonably, Officer Hedgecock should bear moral blame for what happened. (5) Imposing a duty of care would encourage law enforcement officers to exercise reasonable care when dealing with traffic violators. (6) Imposing a duty of care would benefit the community by reducing the number and severity of injuries. (7) Potential defendants in such cases can obtain insurance against liability.
There was a triable issue of fact as to whether the officer had breached the duty of care. The Highway Patrol's safety manual states a general preference for making stops on the right shoulder. That met plaintiff's summary judgment burden.
There was also a triable issue as to whether the officer's conduct was the legal cause of plaintiffs' injuries. The accident would not have happened but for his order that the vehicle stop in the median. The risk that another vehicle might veer into the median was reasonably foreseeable.
Lugtu v. California Highway Patrol, 2000 WL 303127 (Cal. Ct. App. Mar. 24, 2000).
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The First District Court of Appeal in San Francisco has ruled that a landlord had a duty to prevent a violent attack on a tenant by the son of another tenant.
Nine-year old Bertha Valencia was stabbed repeatedly by Eric Umali, the adult son of Ricardo and Erlinda Umali. The attack occurred in a hallway of the apartment building where Bertha lived with her mother and aunt. Eric was staying in the same apartment building with his parents, although his presence was not authorized by the lease. Bertha sued the landlord of the building for negligence.
In response to the landlord's motion for summary judgment, Bertha's mother submitted a declaration stating that she had complained four times about Eric. She told the manager that Eric walked the halls day and night, giving her ugly looks and that she was scared of him. Once, he had tried to turn the doorknob to her apartment.
Determining whether the landlord owes a duty with respect to criminal conduct by a third person depends upon a balancing of the foreseeability of injury against the burden of protecting against the injury. Here, the burden of the duty that Bertha proposed was minimal. The landlord had a policy of asking unauthorized guests to leave, and then calling police if they refused. Because the burden was minimal, only a slight likelihood that Eric would injure someone was necessary to impose a duty. The evidence of ugly looks and an attempt to enter the apartment were sufficient to trigger the duty.
Valencia v. Michaud, 2000 WL 337542 (Cal. Ct. App. Mar. 31, 2000).
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The California Supreme Court has adopted the intermediate scrutiny test for analyzing challenges to fund solicitation regulations under the California Constitution. The decision is the Court's first use of the new certified question procedure established by California Rule of Court 29.5.
The City of Los Angeles adopted an ordinance prohibiting aggressive solicitation of money. When a challenge to the ordinance came before the Ninth Circuit, it sought the California Supreme Court's advice as to the appropriate standard for analyzing the ordinance under the California Constitution. Should it use the strict scrutiny standard, on the theory that such an ordinance restrained speech based on its content? Or, should it use the intermediate scrutiny standard that applies to time, place and manner restrictions?
Until 1998, California was one of the few states that did not accept certified questions from the federal courts. In that year, the Judicial Council adopted Rule of Court 29.5, which authorizes the California Supreme Court to accept certified questions in its discretion. In the present case, the Court noted the advantages of the procedure. However, it declined to rule on its constitutionality, because the parties had not raised the issue.
This case was a particularly appropriate one for certification. The United States Supreme Court has ruled that, as a matter of federal constitutional law, such restrictions should be analyzed as time, place and manner restrictions under the intermediate scrutiny standard. United States v. Kokinda, 497 U.S. 720 (1990). One California Court of Appeal had ruled that the strict scrutiny standard should apply. Alternatives for California Women, Inc. v. County of Contra Costa, 145 Cal. App. 3d 436 (1983). The Ninth Circuit had earlier adopted that interpretation in Carreras v. City of Anaheim, 768 F.2d 1039 (9th Cir. 1985). However, other California Court of Appeal decisions suggest that the intermediate standard should apply.
Under the California Constitution, a restriction on speech that is content-based is subject to strict scrutiny. A restriction that regulates the time, place and manner of speech is subject to intermediate scrutiny.
The challengers of the Los Angeles ordinance argued that it was content-based, because it only regulated public solicitation of money, and not other expressive activity, such as distribution of leaflets. The Court rejected that “literal” application of the rule. The relevant content is the subject matter or viewpoint for which funds are solicited. The ordinance treats all subject matters and viewpoints the same way. Therefore, the ordinance should be analyzed with intermediate scrutiny.
Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal. 4th 352 (2000).
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The Ninth Circuit has ruled that an employer does not violate the Americans with Disabilities Act (ADA) when it requires a union worker to supply a medical release when he asks to be rehired following an injury. The request does not violate the ADA's ban on pre-offer medical inquiries.
Harris & Hart hires sheet metal workers on an as-needed basis from the Sheet Metal Workers union hiring hall. Company policy required employees to bring a medical release from their treating doctors when returning to work from an injury.
Roosevelt Harris had worked for the company twice. During his second term of employment he complained to his union that he had carpal tunnel syndrome, and that the company had not accommodated his disability. After his name came up a third time, Harris refused to provide a medical release.
The ADA generally prohibits an employer from making medical inquiries before it has extended an employment offer. The purpose behind the prohibition is to prevent prejudging individuals with disabilities. In the case of a returning employee with a known injury like Harris, that rationale for the rule does not apply. An employer may require documentation of the employee's current condition.
Harris v. Harris & Hart, Inc., 2000 WL 266680 (9th Cir. Mar. 13, 2000).
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Subsequent treatment of decisions reported on in earlier issues:
Alejo v. City of Alhambra (November 1999 issue), review denied (Feb. 23, 2000).
Gelini v. Tishgart (January 2000 issue), review denied (Mar. 22, 2000).
Gruntz v. County of Los Angeles (In re Gruntz) (March 2000 issue), now reported at 202 F.3d 1074 (9th Cir. 2000).
Keimer v. Buena Vista Books, Inc. (November 1999 issue), review denied (Mar. 1, 2000).
People v. Garcia (March 2000 issue), rehearing denied (Feb. 22, 2000).
Ramirez v. Circuit City Stores, Inc. (January 2000 issue), review granted (Mar. 15, 2000). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Saelzler v. Advanced Group 400 (February 2000 issue), review granted (Mar. 29, 2000). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Sony Computer Entertainment, Inc. v. Connectix Corp. (March 2000 issue), now reported at 203 F.3d 596 (9th Cir. 2000).
Thomas v. Department of Corrections (February 2000 issue), modified (Jan. 11, 2000).
Warden v. State Bar of California (October 1999 issue), cert. denied, 2000 WL 48949 (Mar. 20, 2000).
Wasson v. Sonoma County Junior College (March 2000 issue), now reported at 203 F.3d 659 (9th Cir. 2000).
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