May 2001 Vol. 7 No. 5 ISSN 1087-6219
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In This Issue

• Favorable arbitration award cannot form basis for malicious prosecution action
• State university professor's removal of handbills violates First Amendment
• Proposition 213 bars noneconomic damage claims by uninsured motorists against local governments for dangerous conditions
• Ninth Circuit explains limits on public employee First Amendment retaliation claims
• Assurances of good cause employment cannot overcome express at-will agreement
• UPDATES

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Favorable arbitration award cannot form basis for malicious prosecution action

The California Supreme Court has ruled that an award in a contractual arbitration cannot supply the favorable termination element of a malicious prosecution cause of action. An arbitration award does not conclude a prior “action.”

Tremco sued former employee Walter Brennan after he went to work for one of its competitors. After the superior court summarily adjudicated some of the causes of action in Brennan's favor, the parties agreed to arbitrate the remainder. The arbitrator ruled for Brennan, and the court entered judgment on the award for Brennan.

In upholding the dismissal of Brennan's ensuing malicious prosecution action, the Supreme Court relied on two trends: (1) the trend against creating or expanding derivative tort remedies, and (2) the trend in favor of allowing parties to choose binding arbitration to resolve their entire dispute.

This case differs from an action based on a favorable outcome in a prior judicial arbitration, which is mandated by statute and allows the losing party to seek trial de novo in court. See Stanley v. Superior Court, 130 Cal. App. 3d 460 (1982). This is more akin to small claims litigation, which is designed to function quickly and informally. See Pace v. Hillcrest Motor Co., 101 Cal. App. 3d 476 (1980).

A few years ago, the Court had characterized contractual arbitration as quasi-judicial in applying the litigation privilege of Civil Code section 47. Moore v. Conliffe, 7 Cal. 4th 634 (1994). It did so to protect the finality of arbitration awards from “an unending roundelay of litigation.” That policy supports the decision that the Court reached in this case.

The parties to an agreement to arbitrate may provide for their own penalties or sanctions for the frivolous institution of proceedings. If they do not, the public policy favoring the finality of arbitration proceedings supports a rule that precludes further litigation over an arbitrated dispute.

Brennan v. Tremco Inc., 2001 WL 370217 (Cal. Sup. Ct. Apr. 16, 2001).

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State university professor's removal of handbills violates First Amendment

The Ninth Circuit has ruled that an individual state university professor's decision to rip down handbills announcing a conference violated a former colleague's First Amendment rights. The state had created a designated public forum on the bulletin boards where the handbills were posted.

At one time, Douglas Giebel and Stephen Sylvester both taught at Montana State University-Northern. They became antagonists when the university declined to renew Professor Giebel's teaching contract in 1995.

In the Spring of 1996, the university sponsored a conference on “Intellectual Freedom,” at which Giebel was scheduled to speak. He posted his own handbills on campus bulleting boards that had been set aside for common use by anyone wishing to communicate with individuals at the university. The handbills said:

Former MSU-Northern Faculty Member DOUG GIEBEL Will Speak on the topic “The Regents, The Plan and Academic Responsibility”

The Second Annual Conference on Intellectual Freedom, Donaldson Commons, Friday, April 19, 9:00 a.m.

Professor Sylvester ripped down Giebel's handbills, but not those of anyone else. Giebel then withdrew from the conference because he feared further retaliation and disruption of his speech.

Not quite two years later, Giebel filed an action under 42 U.S.C. § 1983, which alleged that Sylvester's actions violated his First Amendment rights. The federal district court in Montana denied Sylvester's motion to dismiss on qualified immunity grounds, and the Ninth Circuit affirmed.

The court first rejected Giebel's argument that the handbills were not sufficiently expressive to qualify for First Amendment protection. Words that convey information, as the handbills did, constitute speech within the meaning of the First Amendment.

By opening its bulletin boards to the general public, the university created a designated public forum. Sylvester's actions constituted censorship based on viewpoint, which is impermissible in such a forum.

The court also rejected Sylvester's argument that Giebel had a suitable alternative forum available at the actual conference. The availability of that other forum does not justify the foreclosure of access to the campus bulletin boards.

The applicable standards were well established when Sylvester acted. No reasonable official in his position could have thought his actions were lawful. Therefore, Sylvester did not have qualified immunity.

Giebel v. Sylvester, 2001 WL 360242 (9th Cir. Apr. 12, 2001).

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Proposition 213 bars noneconomic damage claims by uninsured motorists against local governments for dangerous conditions

The California Supreme Court has ruled that uninsured motorists may not pursue claims for noneconomic damages against public entities responsible for dangerous conditions that may have contributed to the traffic accident. Such claims fall within Proposition 213's bar to noneconomic damage claims in actions involving operation or use of a motor vehicle.

Russell Glen Day was injured when a car struck his motorcycle at an intersection. He did not have liability insurance on his motorcycle. He claimed that the City of Fontana and the County of San Bernardino knew about overgrown vegetation that obstructed motorists' vision, but failed to correct the dangerous condition.

At the trial of his lawsuit against the driver of the other car and the two public entities, the jury awarded Day $454,574 in economic damages, and apportioned the fault 52 percent to the other driver, 5 percent to the County and 43 percent to the City. The trial court refused to allow any evidence of noneconomic damage.

The voters enacted Proposition 213 to “restore balance to the justice system” by ensuring that those who fail to take personal responsibility would not be rewarded for their “irresponsibility and law breaking.” To carry out that purpose, Civil Code section 3333.4 provides that a person with an uninsured vehicle shall not recover non-economic losses “in any action to recover damages arising out of the operation or use of a motor vehicle.”

In recent decisions, the Court limited the reach of section 3333.4, by allowing an uninsured motorist's heirs to sue for wrongful death (Horwich v. Superior Court, 21 Cal. 4th 272 (1999)), and by allowing an uninsured motorist to sue the manufacturer of his vehicle (Hodges v. Superior Court, 21 Cal. 4th 109 (1999)).

This case fell squarely within section 3333.4. Unlike Horwich, the plaintiff was the uninsured motorist. Unlike Hodges, “there was a necessary and causal relationship between the plaintiff's operation of his motorcycle and the accident for which he claimed the public entities were responsible.”

Further, public entities that maintain the roadways suffer direct harm from uninsured motorists who damage the roadways or adjacent property.

Day v. City of Fontana, 25 Cal. 4th 268 (2001).

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Ninth Circuit explains limits on public employee First Amendment retaliation claims

The Ninth Circuit has ruled that not every word out of a public employee's mouth is of sufficient public concern to warrant First Amendment protection. The First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs. 

George Weeks worked for the Nevada Department of Prisons. One day, he received a call from another Nevada state agency, inquiring about inmate substance abuse and rehabilitation programs. Weeks said that the programs were at risk of discontinuation because of delays by Robert Bayer, his supervisor. A week later Bayer fired Weeks.

The First Amendment only prohibits retaliation against public employee speech that is on a matter of public concern. The courts look to the content of the speech, and to its form and context, to determine whether it is of public concern.

In this case, the content of the speech did not involve the types of things that have been recognized as implicating public concern, such as waste of public funds, malfeasance, or important issues of the day. If Weeks's brief response to an inquiry were protected, then “water cooler conversation would become the stuff of First Amendment claims.”

The form and context of the speech did not bolster Weeks's claim. He did not speak in a way that suggested he was trying to bring wrongdoing to light. He did not speak to a supervisor, or urge reform of a wayward policy. “[A] simple update on the funding status of a program, without more, does not a constitutional case make.”

Weeks v. Bayer, 2001 WL 388695 (9th Cir. Apr. 18, 2001).

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Assurances of good cause employment cannot overcome express at-will agreement

The Third District Court of Appeal in Sacramento has ruled that a supervisor's oral assurances of good cause employment cannot alter the nature of employment governed by an express at-will agreement.

Charles Starzynski went to work as the program director for two Sacramento radio stations owned by Capital Public Radio in 1979. His supervisor orally assured him that his employment could be terminated only for good cause.

In December 1991, Capital City had Starzynski sign an “Employment At-Will Contract and Acknowledgment Form,” which stated that his employment was at-will, and that only the board of directors had authority to change the at-will relationship. According to Starzynski's complaint, three days later his supervisor again assured him that he would not be discharged as long as his performance was satisfactory.

The court of appeal affirmed the dismissal of his claim for wrongful constructive discharge. The express at-will agreement with its limitation on who could alter the employment relationship barred any claim that the employer needed good cause to discharge Starzynski.

Since Capital did not need good cause to discharge Starzynski, the fact that intolerable conditions forced him to quit to not give rise to a claim for wrongful constructive discharge.

Starzynski v. Capital Public Radio, Inc., 88 Cal. App. 4th 33 (2001).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Bolter v. Superior Court (April 2001 issue), modified on denial of rehearing (Mar. 30, 2001).

Condee v. Longwood Management Corp. (April 2001 issue), now reported at 88 Cal. App. 4th 215 (2001).

D'Sa v. Playhut, Inc. (February 2001 issue), review denied (Mar. 21, 2001).

Esberg v. Union Oil Co. of California (March 2001 issue), petition for review filed (Apr. 3, 2001).

Frank v. United Airlines, Inc. (July 2000 issue), cert. denied, 121 S.Ct. 1247 (2001).

Hooks v. Clark County School Dist. (January 2001 issue), cert. denied, 2001 WL 120138 (Apr. 16, 2001).

Kane v. National Ski Patrol Sys., Inc. (April 2001 issue), now reported at 88 Cal. App. 4th 204 (2001).

McCoy v. Superior Court (April 2001 issue), modified (Mar. 28, 2001).

Pichly v. Nortech Waste LLC (April 2001 issue), modified on denial of rehearing (Apr. 2, 2001).

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