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August 2000 
Vol. 6 No. 8 ISSN 1087-6219
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The Ninth Circuit has ruled that the federal Labor Management Relations Act preempts overtime claims under state law, when those claims are “substantially dependent” on an analysis of a union agreement. The ruling affirmed dismissal of claims that a flat sum compensation system for meter readers violated California overtime rules.
The agreements between Southern California Gas and its unions established a pay-per-route system for all meter readers. Under the system, Southern California Gas paid a flat sum for each route, with an overtime calculation adjustment for each meter reader who worked more than 8 hours in one day.
Three meter readers sued on behalf of a class, claiming, in part, that the system violated California's overtime statute. That statute provides that a non-exempt employee must receive one and one-half times the “regular rate of pay” for overtime work. The provision does not apply to employees covered by a union agreement if the agreement provides premium wage rates for overtime work.
The federal LMRA displaces all state causes of action that are “inextricably intertwined with consideration of the terms of [union agreements].” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985). If the cause of action does not turn on the meaning of terms in the union agreement, there is no preemption. If the duty on which the cause of action rests is defined by reference to the agreement, there is preemption.
In this case, the determination of the meter readers' regular rate of pay would depend upon an interpretation of the union agreement with Southern California Gas. If the California statute were not preempted, parties negotiating such an agreement could not ensure that a negotiated overtime provision would prevail.
Firestone v. Southern California Gas Go., 2000 WL 986929 (9th Cir. Jul. 19, 2000).
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The Riverside division of the Fourth District Court of Appeal has ruled that an attorney who specially appears for a party's attorney of record may be sued for malpractice by the party. A legal malpractice plaintiff may prove the existence of an attorney-client relationship, even if he or she did not have any direct dealings with the attorney defendant.
Yvonne Streit sued her attorney of record for legal malpractice. She included the law firm of Covington & Crowe as a defendant. As a professional courtesy, a Covington & Crowe attorney specially appeared for the attorney of record at a summary judgment motion hearing. It had no other involvement in the case. The firm argued that such an appearance did not give rise to an attorney-client relationship.
Earlier cases had recognized that an attorney-client relationship might arise without direct dealings. For example, retaining an attorney in a firm also establishes such an attorney-client relationship with any attorney who is a partner of or employed by the retained attorney. Attorneys who associate for purposes of a case (such as those who serve as local counsel) also enter into an attorney-client relationship with the party.
The fact that Covington & Crowe only appeared once did not make the general principle inapplicable. It was a distinction only of degree. If the specially appearing attorney were not associated with the attorney of record, he could not be heard.
The court did not decide the scope of the duty that Covington & Crowe owed to Streit. Although the duty was probably quite limited, the record did not allow the court to determine the details of the engagement, or the instructions given to Covington & Crowe.
Justice Ward's concurring opinion summed up the governing principles as follows: “Defendant attorneys' proposed limited liability appearance not only diminishes the rights of clients, it also tramples on the court's right and duty to control the proceedings. Consider the judge who tries to solve some pressing problem in the case by seeking a stipulation from counsel, only to be told that an appearing attorney has only limited authority or inadequate knowledge of the matter. If we must choose between a process which encourages inadequate preparation or a process which demands competent performance, there is no real choice-our professional duty demands excellence. I am reminded of my father's constant repetition of the old saw, 'if a job is worth doing, it is worth doing well.' In the case of the sacred trust between attorney and client, we would do well to apply that admonition to every aspect of representation of the client's interest.”
Streit v. Covington & Crowe, Case No. E023862 (Cal. Ct. App. Jul. 20, 2000)
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The Ninth Circuit has rejected a qualified immunity claim by police officers who held their guns to a suspect's head. Clearly established law should have put the officers on notice that they might be using excessive force.
James Robinson, a retired San Francisco police officer, raised livestock in a semi-rural area of Solano County. One morning he shot two dogs that were attacking his livestock. The neighbor who owned the dogs reported to the police that a man with a shotgun had shot her dogs and then engaged in a heated argument with her from the street.
Six patrol cars responded to Robinson's house. Robinson walked unarmed from his house toward the cars. Two of the officers pointed their guns at him. When Robinson asked what was going on, one of the officers stepped forward and thrust his gun three or four feet from Robinson's head. Other officers then handcuffed Robinson and put him in the back of one of the patrol cars. They released him 15-30 minutes later, after determining that he had not violated the law.
The district court entered judgment for the officers on Robinson's section 1983 claim after the jury deadlocked on whether the force employed was reasonable. The Ninth Circuit reversed.
To determine whether a government official has qualified immunity, a court must determine (1) whether the law governing the official's conduct was clearly established, and, if so, (2) whether a reasonable official would have understood that his or her conduct violated the governing law.
In McKenzie v. Lamb, 738 F.2d 1005 (9th Cir. 1984), the Ninth Circuit had rejected a qualified immunity claim where police officers went into a hotel room with guns drawn, forced the suspects against a wall, handcuffed them, and threw them to the floor. Although those circumstances were different, the case was sufficient to put police officers on notice that unreasonably pointing a gun at a suspect's head would violate the suspect's constitutional rights. Therefore, it was for the jury to decide whether the officers' conduct was a reasonable use of force under the circumstances.
Judge O'Scannlain dissented. He felt that the McKenzie case involved very different circumstances. Cases in other circuits had held that merely pointing a weapon at a suspect was not a basis for section 1983 liability.
Robinson v. Solano County, 2000 WL 959493 (9th Cir. Jul. 12, 2000).
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The Second District Court of Appeal in Los Angeles has ruled that failure to comply with the statutory procedures for disclosure of peace officer personnel records is not the basis for a civil cause of action. The Legislature did not intend to establish such a remedy.
An underage female Police Explorer Scout sued the City of Los Angeles for inappropriate sexual conduct by LAPD officer John Rosales. In the course of discovery, a deputy city attorney disclosed Rosales's personnel records without complying with the requisite statutory procedures of the Penal and Evidence Codes. Rosales sued the city for violating the statutory procedure.
The statutory procedures establish a conditional privilege for a peace officer's personnel records. The statutes require a person seeking such information to submit a written motion that establishes good cause. If good cause is found, the court examines the materials in camera to determine whether they should be produced.
The Legislature established a detailed, comprehensive scheme to preserve the confidentiality of peace officer personnel records. If it had also wished peace officers to have a private right of action for violation of the procedure, it could have easily provided such a remedy.
There is also no basis for a negligence per se cause of action. The Legislature intended only to establish a procedure for protecting confidentiality, not to establish a standard of care for a negligence action.
Rosales v. City of Los Angeles, 2000 WL 988500 (Cal. Ct. App. Jul. 19, 2000).
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The Ninth Circuit rejected a discrimination claim by an employee disabled by Multiple Sclerosis who, regardless of reasonable accommodation, was not qualified for her job. Her employer's failure to accommodate did not cause her low performance.
In 1996, Donna Braunling requested, and Countrywide Home Loans, Inc. approved, her promotional transfer to senior underwriting supervisor. Beginning in December 1997, Cathy Kister, Braunling's supervisor, counseled her for unsatisfactory job performance. This included improper responses to customer complaints, missed audit reviews, incorrect analyses, and incomplete database entries. In March 1997, Braunling's request for a department transfer was denied. The district court granted summary judgment for Countrywide.
The ADA requires employers to provide reasonable accommodations to disabled employees. This includes reassignments to other positions. However, the plaintiff must provide a facial showing that reasonable accommodation is possible.
Braunling, although disabled, failed to show that her underperformance was attributable to Countrywide's failure to transfer her. Kister's verbal reprimands began before she knew about Braunling's Multiple Sclerosis. Braunling's request for accommodation for her disability would not have improved her job performance.
Braunling v. Countrywide Home Loans, Inc., 2000 WL 1005887 (9th Cir. Jul. 21, 2000).
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Subsequent treatment of decisions reported on in earlier issues:
Asmus v. Pacific Bell (July 2000 issue), time for grant or denial of rehearing extended to Aug. 29, 2000.
Brooks v. City of San Mateo (July 2000 issue), now reported at 214 F.3d 1082 (9th Cir. 2000).
Echazabal v. Chevron USA, Inc. (June 2000 issue), now reported at 213 F.3d 1098 (9th Cir. 2000).
Lugtu v. California Highway Patrol (April 2000 issue), review granted (Jul. 12, 2000). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Potvin v. Metropolitan Ins. Co. (June 2000 issue), rehearing denied (Jun. 28, 2000).
Sony Computer Entertainment, Inc. v. Connectix Corp. (March 2000 issue), petition for certiorari filed (Jun. 30, 2000).
Valencia v. Michaud (April 2000 issue), review denied and official reporter directed not to publish the decision (Jul. 12, 2000). The decision may no longer be cited. Cal. R. Ct. 977.
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