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September 2001 
Vol. 7 No. 9 ISSN 1087-6219
Copyright and Trademark Notice | Disclaimer
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The California Supreme Court has restricted the state constitutional free speech right to private property that is freely and openly accessible to the public. It left open the possibility that the constitutional right might bar discriminatory limitations on speech even in restricted areas.
For 11 years, the Golden Gateway Tenants Association periodically distributed information to the tenants of Golden Gateway Center without interference by the management. The Association increased its leafleting activity after Golden Gateway hired a new manager. Golden Gateway then banned all unsolicited distribution. Golden Gateway is a retail and residential apartment complex that limits access to the residential parts to residential tenants and their invitees.
In Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979), aff'd, 447 U.S. 74 (1980), the Court extended the California free speech clause to privately owned shopping centers. There has been confusion over the ensuing 22 years as to the extent of the right recognized in Robins.
The California free speech right does not protect against all private restrictions on speech. The right contains a state action limitation. That limitation finds support in the legislative history of the constitutional provision, and in the fact that almost all sister states have read a similar limitation into their free speech clauses.
The state action limitation restricts the right to property that is the functional equivalent of a traditional public forum. The right only extends to property that is freely and openly accessible to the public.
Justice Brown wrote the Court's opinion on behalf of herself and Justices Baxter and Chin. Chief Justice George supplied the deciding fourth vote, but would limit the holding to the facts of this case, and leave for another day the question of whether state action is required in all instances. The other three justices would have found a free speech violation.
Golden Gateway Center v. Golden Gateway Tenants Ass'n, 2001 WL 987547 (Cal. Sup. Ct.. Aug. 30, 2001).
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The Sixth District Court of Appeal in San Jose has ruled that activities conducted over the Internet that infringe on intellectual property rights of California companies subject out-of-state individuals to jurisdiction in California.
Matthew Pavlovich developed a software program called DeCSS, which defeated DVD Copy Control Association's copy protection system for DVDs. Although he understood that a license was necessary for some of the use that he made of the Association's trade secrets and copyrights, Pavlovich never obtained a license.
Pavlovich distributed the software through his Web site. He understood that California was the center of the movie industry, which provided much of the content for DVDs. He also understood that the Silicon Valley in California was one of the top three technology hot spots in the United States.
The due process clause permits a state court to exercise jurisdiction over a defendant who intentionally engages in unlawful conduct that causes harmful effects in the state. See, e.g., Calder v. Jones, 465 U.S. 783 (1984). In this case, Pavlovich used the new medium of the Internet to inflict harm on California plaintiff, thereby subjecting himself to personal jurisdiction in California.
Pavlovich v. Superior Court, 109 Cal. Rptr. 2d 909 (Ct. App. 2001).
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The California Supreme Court has ruled that the legislature has exempted gun manufacturers from liability in negligence for making a product whose benefits do not outweigh the risk of injury.
Gian Luigi Ferri killed eight people and wounded six during a rampage at an office in San Francisco. Survivors and representatives of some of the victims sued Navegar, which made two of the three weapons used in the rampage. Although California forbids advertising and sale of the Navegar weapons that Ferri used, he acquired them through lawful sales in Nevada.
Civil Code section 1714.4 provides that, “[i]n a products liability action, no firearm or ammunition shall be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged.” Further, injuries from the discharge of a firearm “are not proximately caused by its potential to cause serious injury, damage, or death, but are proximately caused by the actual discharge of the product.”
Plaintiffs attempted to avoid section 1714.4's bar by arguing that Navegar was negligent in selling its guns on the general civilian market knowing it would attract buyers likely to misuse it, rather than restricting sales to buyers with a lawful use, such as the military or the police. The argument failed, because it was simply another way of arguing that the risks outweighed the benefits-exactly the sort of inquiry that section 1714.4 bars.
Merrill v. Navegar, Inc., 26 Cal. 4th 465 (2001).
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The California Supreme Court has ruled that school administrators may exercise their broad authority over student behavior to stop students and conduct investigations so long as they do not do so in an arbitrary, capricious or harassing manner. They do not need reasonable suspicion.
A school security officer noticed that Randy G fixed his pocket nervously after he saw her. Thinking that he was acting “very paranoid and nervous,” she and another officer summoned Randy G from his classroom, and secured his consent to a pat down search. The search turned up an illegal knife with a locking blade. As a result he was declared a ward of the court.
In a proceeding to declare him a ward of the court, Randy G moved to suppress the knife as the product of consent tainted by an unlawful detention. The court of appeal found the detention lawful because there was reasonable suspicion. The Supreme Court ruled that reasonable suspicion was not necessary.
Public schools have custodial power over the students in their charge. Compulsory attendance laws require students to attend school. While in school, students are subject to the same degree of physical control that their parents exercise over them. Encounters between students and school personnel are constant, and more varied than those between citizens and the police.
In light of the considerable restraints that already exist in school, an official who stops a student to ask a question does not restrain his liberty over and above the existing restraints. Therefore, the official need not have reasonable suspicion. It is enough that the official refrain from acting arbitrarily, or for purposes of harassment.
In re Randy G., 110 Cal. Rptr. 2d 516 (2001).
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The California Supreme Court has ruled that traffic officers may not put motorists into danger. They have a duty not to put them in harm's way.
A Highway Patrol officer directed a motorist in the far left lane to pull over and stop in the center median area of Highway 78 in San Diego County. There was more room in the center median area than on the right shoulder. A pickup truck drifted toward the center median, and struck the motorist's vehicle, injuring the occupants.
Tort law recognizes a negligence duty not to expose another person to an unreasonable risk of harm through the reasonably foreseeable conduct of a third person. That general principle applies to law enforcement officers who direct citizens to proceed to a particular location.
Although the Highway Patrol also argued that its officer had not breached his duty, there was sufficient evidence from which a jury could conclude that he had. The Patrol's own officer safety manual indicated a strong preference for having motorists stop on the right shoulder rather than the center median.
The Court also rejected the Patrol's argument that the driver of the pickup truck was a superseding cause of the accident. The risk of harm posed by the negligence of an oncoming driver was one of the foremost risks against which the tort duty was intended to protect.
Lugtu v. California Highway Patrol, 110 Cal. Rptr. 2d 52 (2001).
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The Ninth Circuit has ruled that employers who do not disclose the method that they use to calculate leave accrual under the Family and Medical Leave Act (FMLA) must use the method most favorable to their employees.
The FMLA requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave during a 12-month period. An employer may choose one of four methods for calculating the 12-month period. It must apply the chosen method consistently to all employees. If the employer does not select a method, it must use the method that provides the most beneficial outcome for the employee.
America West fired Penny Bachelder for excessive absences after determining that she had exceeded her FMLA leave allotment. It used the “rolling method” for calculating leave. Under that method, the employer counts back 12 months from the date on which the employee uses any FMLA leave. When that calculation adds up to 12 weeks, the employee may not take any additional leave for 12 months.
Although its handbook stated that employees were entitled to up to 12 weeks of leave within any 12-month period, that was not sufficient notice of America West's selection. It just parroted the statutory provisions. Therefore, America West should have used the more favorable calendar year method, which affords each employee 12 weeks of FMLA leave every calendar year.
Because America West fired Bachelder for absences that were protected by the FMLA, it engaged in unlawful retaliation.
Bachelder v. American West Airlines, Inc., 2001 WL 883701 (9th Cir. Aug. 8, 2001).
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Subsequent treatment of decisions reported on in earlier issues:
Catholic Charities of Sacramento, Inc. v. Superior Court (July 2001 issue), now reported at 90 Cal. App. 4th 425 (2001).
Estate of Amos v. City of Page (August 2001 issue), now reported at 257 F.3d 1086 (9th Cir. 2001).
Hoffman v. Capital Cities/ABC, Inc. (August 2001 issue), now reported at 255 F.3d 1180 (9th Cir. 2001).
Holmes v. California Nat'l Guard (July 2001 issue), now reported at 90 Cal. App. 4th 297 (2001), petition for review filed (Jul. 31, 2001).
LaVine v. Blaine School Dist. (August 2001 issue), now reported at 257 F.3d 981 (9th Cir. 2001).
Lugtu v. California Highway Patrol (April 2000 issue), superseded by 110 Cal. Rptr. 2d 52 (2001).
Nichols v. Azteca Restaurant Enterprises, Inc. (August 2001 issue), now reported at 256 F.3d 864 (9th Cir. 2001).
Thomas v. Anchorage Equal Rights Commission (February 1999 issue), ordered dismissed on ripeness grounds, 220 F.3d 1134 (9th Cir. 2000).
Wittkopf v. County of Los Angeles (August 2001 issue), now reported at 90 Cal. App. 4th 1205 (2001).
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