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June 2004 
Vol. 10 No. 1 ISSN 1087-6219
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The California Supreme Court has rejected a challenge to the Women's Contraception Equity Act (WCEA) by a charitable organization affiliated with the Roman Catholic Church. The organization must either drop its prescription drug benefit or extend the benefit to cover prescription contraceptives.
The WCEA requires health plans that include prescription drugs to cover prescription contraceptives. It allows "religious employers" to exclude coverage for contraceptive methods that are contrary to the religious employer's religious tenets.
Catholic Charities is a separately incorporated nonprofit public benefit corporation that offers social programs as part of the social justice ministry of the Roman Catholic Church. It does not qualify as a "religious employer," because its purpose is not to inculcate religious values, the majority of its employees are not Roman Catholics, it does not primarily serve Roman Catholics, and it does not satisfy the IRS exemption for religious entities. The organization offers a prescription drug benefit that does not cover prescription contraceptives. The organization does not provide such coverage, because it follows the Roman Catholic Church's teaching that contraception is a sin.
Applying the WCEA to Catholic Charities does not violate either the free exercise clause or the establishment clause. Religious beliefs do not excuse compliance with valid and neutral laws of general applicability like the WCEA. The exemption for religious employers did not violate the establishment clause, because exemptions from governmentally imposed burdens to accommodate free exercise are permissible.
Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527 (2004).
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The California Supreme Court has ruled that public agencies handling 911 calls are only liable for acts of their employees that amount to gross negligence or bad faith. Civil Code section 1799.107 provides a qualified immunity for such employees' actions.
Three-year old Felicia and her parents alleged that she was denied early and prompt medical attention following an electric shock because a 911 emergency dispatcher failed to send emergency personnel and equipment. The trial court sustained defendants' demurrer without leave to amend.
Government entities are not liable for injuries unless a statute expressly provides for liability. Government Code section 815.2 imposes liability for negligent acts or omissions by an entity's employees within the scope of employment, except that there is no liability if the employee is immune.
Section 1799.107 provides that emergency rescue personnel are not liable for injuries caused by actions within the scope of their employment, "unless the action taken was performed in bad faith or in a grossly negligent manner." 911 emergency dispatchers are covered by the provision, because they engage in activities related to first aid and medical services, rescue procedures and transportation.
Plaintiffs' counsel conceded at the demurrer hearing that he had no basis for amending the complaint to allege gross negligence or bad faith. Therefore, the dispatcher enjoyed immunity under section 1799.107, and the dispatcher's employer was immune under section 815.2.
Eastburn v. Regional Fire Protection Authority, 31 Cal. 4th 1175 (2003).
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The California Supreme Court has ruled that an employee's failure to use available corrective measures is not a complete defense to a hostile environment claim. However, failure to use such measures may reduce the recoverable damages under the doctrine of avoidable consequences.
Theresa McGinnis worked for the Department of Health Services, where she was subjected to a hostile environment by her supervisor from early 1996 until late 1997. Although the Department offered methods for employees to complain about and secure redress from sexual harassment, McGinnis did not complain to management until November 1997, whereupon the Department took prompt action that led to the harasser's retirement.
The Department invoked the United States Supreme Court's decision in Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Faragher affords an employer a complete defense to Title VII actions, if it can prove that it exercised reasonable care to prevent and correct harassment, and that the plaintiff failed to take advantage of the employer's preventive and corrective measures.
The California Supreme Court refused to recognize a similar defense under the Fair Employment and Housing Act. The FEHA differs from Title VII by expressly providing for strict liability for supervisor harassment. However, under general damages principles, a plaintiff may not recover damages that she could have reasonably avoided by the use of reasonable effort or expenditure after the unlawful act.
State Department of Health Services v. Superior Court, 31 Cal. 4th 1026 (2003).
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The California Supreme Court has ruled that public employees need not exhaust both their Fair Employment and Housing Act (FEHA) administrative remedy and their internal administrative remedy before pursuing filing a lawsuit in Superior Court. It is enough to file an administrative charge with the Department of Fair Employment and Housing (DFEH) and then receive a right to sue letter.
Steve Schifando claimed that he was forced out of his job with the Los Angles Parks and Recreation Department because of his physical disability. He filed an administrative complaint with the DFEH, and received a right to sue letter. He did not file a demand for reinstatement with the Board of Civil Service Commissioners, as required by the City Charter.
A long line of cases holds that potential litigants must exhaust internal remedies before resorting to court. Courts should not be burdened with disputes that can be resolved through an alternative forum.
Those cases do not apply here, because the Legislature has specifically mandated its own administrative review process for FEHA claims. To hold otherwise would force public employees to first litigate their discrimination claims in a civil service proceeding with the risk of being barred from pursuing them later in the forum intended by the Legislature.
The Court did not rule on what would happen in a case where a public employee chooses to pursue both the internal and the FEHA remedies at the same time.
Schifando v. City of Los Angeles, 31 Cal. 4th 1074 (2003).
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The California Supreme Court has ruled that a child care center is not liable for injuries suffered by its children when a driver intentionally drove his car through a fence surrounding the center and onto the playground.
There was a four-foot fence around the playground at a facility owned by Southcoast Childcare Centers. Steven Abrams intentionally drove his large Cadillac through the fence, onto the playground, and into a group of children. He killed two children, and injured several others. He was convicted of first degree murder, and sentenced to life without parole.
Although a sturdier fence might have prevented the assault, the center was not liable for the resulting injuries. Since there was no evidence that the center or other similar business establishments had been the targets of violence or criminal acts in the past, Abrams's actions were not foreseeable. Therefore, the center did not owe a tort duty to prevent the assault.
Wiener v. Southcoast Childcare Centers, Inc., 2004 WL 964080 (Cal. Sup. Ct. May 6, 2004).
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Subsequent treatment of decisions reported on in earlier issues:
Carter v. California Department of Veterans Affairs (June 2003 issue), retransferred to Court of Appeal (Nov. 19, 2003).
Drummond v. City of Anaheim (October 2003 issue), now reported at 343 F.3d 1052 (9th Cir. 2003), petition for certiorari filed (Mar. 8, 2004).
Johnson v. State of California (March 2003 issue), cert. granted, 124 S.Ct. 1505 (Mar. 1, 2004).
Mitsubishi Materials Corp. v. Superior Court (February 2003), retransferred to Court of Appeal (Sep. 24, 2003), subsequent opinion, 113 Cal. App. 4th 55.
Morris v. De La Torre (October 2003 issue), review granted (Dec. 10, 2003). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Salazar v. Diversified Paratransit, Inc. (December 2002 issue), retransferred to Court of Appeal (Nov. 19, 2003), subsequent opinion, 117 Cal. App. 4th 310.
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