October 1996 Vol. 2 No. 10 ISSN 1087-6219
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In This Issue

• Court of Appeal recognizes right of public and press access to civil trials
• Supreme Court imposes strict liability for failure to warn of prescription drug danger
• Ninth Circuit recognizes private right of action under 42 U.S.C. sec. 1981
• FEHA disability discrimination claim not preempted by Workers' Compensation Act
• Court of Appeal explains proper uses of motions in limine
• Party must perform physical reenactment at videotaped deposition
• New York newspaper and reporter may be sued in California for libel
• UPDATES

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Court of Appeal recognizes right of public and press access to civil trials

The Second District Court of Appeal in Los Angeles has ruled that a trial court may not limit press and public access in a civil trial to just those proceedings that take place before the jury. The decision came in a lawsuit filed against Clint Eastwood by his former companion Sondra Locke.

The trial court entered the following order: "The primary purpose of this court is that the litigants appear before a fair and impartial jury untainted by information obtained that was not presented to the jury. This jury is not sequestered, and to prevent the jury from hearing information regarding evidence that may not be presented to the jury or is not relevant to these proceeding[s], it is necessary that only the litigants and their attorneys be present during those discussions with the court. . . . This court has instructed the bailiff to clear the courtroom of everyone other than the litigants and their attorneys at every break and when the jury is not present."

In overturning the order, the Court of Appeal drew on the standards developed by the United States Supreme Court for access to criminal proceedings. See, e.g., Waller v. Georgia, 467 U.S. 39 (1984) (qualified right of access to suppression hearing); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (qualified right of access to voir dire proceedings). Those cases establish a presumption of openness. To overcome it, the trial court must identify "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."

The present order was too broad, because it extended to all nonjury proceedings. That covered such matters as discussions about scheduling, and argument on jury instructions. To support a closure of proceedings that might involve disclosure of prejudicial evidence, the trial court would have to identify the evidence, and the ways in which one of the parties might be prejudiced. It did not.

The court did not decide whether the right of access to civil trials was co-extensive with the right applied in criminal proceedings. It noted that no case "has suggested that there is a difference of any constitutional consequence."

NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 1996 WL 528471 (Cal. Ct. App. Sept. 17, 1996).

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Supreme Court imposes strict liability for failure to warn of prescription drug danger

Rejecting a special rule for prescription drugs, the California Supreme Court has imposed strict liability for failure to warn of "reasonably scientifically knowable dangerous propensities." The court saw it as a straightforward application of the rule enunciated in Anderson v. Owens-Corning Fiberglas Corp., 53 Cal. 3d 987 (1993).

In Brown v. Superior Court, 44 Cal. 3d 1049 (1988), the Supreme Court had ruled that a prescription drug manufacturer was not strictly liable for unknowable defects. In Anderson, the court decided that an asbestos manufacturer was strictly liable if it did not give adequate warning of scientifically knowable dangers. In this case, the court saw no valid reason for applying a lesser standard to prescription drug manufacturers.

In dissent, Justice Baxter opined that a negligence standard was appropriate, because of "the vital public interest in the development, availability, and reasonable pricing of prescription drugs." In addition, FDA regulations impose restrictions on prescription drug warnings. That mandates an inquiry into the reasonableness of a drug manufacturer's efforts to comply. That is consistent with a negligence standard.

Carlin v. Superior Court, 56 Cal. Rptr. 2d 162 (Cal. Sup. Ct. 1996).

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Ninth Circuit recognizes private right of action under 42 U.S.C. sec. 1981

The Ninth Circuit has ruled that a minority-owned construction firm may maintain a claim under 42 U.S.C. sec. 1981 against Alameda County. The court held that a 1991 amendment to section 1981 overruled the Supreme Court's decision in Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989). However, it affirmed the District Court's dismissal of the claim, because the plaintiff had not adequately alleged an official policy or practice.

Section 1981 mandates an equal right "to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." In Jett, the Supreme Court ruled that the exclusive remedy for a section 1981 violation was a claim under 42 U.S.C. sec. 1983. However, such a claim cannot rest on respondeat superior liability.

The Civil Rights Act of 1991 added the following provision to section 1981: "The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." The Supreme Court had previously authorized claims under section 1981 against private actors. Runyon v. McCrary, 427 U.S. 160 (1976). Because the amendment establishes parallel protections against governmental and private actors, the court inferred a legislative intent to establish a parallel right of action.

Federation of African American Contractors v. City of Oakland, 1996 WL 529477 (9th Cir. Sept. 19, 1996).

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FEHA disability discrimination claim not preempted by Workers' Compensation Act

The Ventura Division of the Second District Court of Appeal has ruled that the Workers' Compensation Act does not preempt a disability discrimination claim under the Fair Employment and Housing Act. The ruling conflicts with Cammack v. GTE Corp., 48 Cal. App. 4th 207 (1996), reported on last month.

Cammack adhered to a long line of cases holding that the Workers' Compensation Act did preempt disability discrimination claims based on work-related injuries. See, e.g., Langridge v. Oakland Unified Sch. Dist., 25 Cal. App. 4th 664 (1994). A 1993 amendment provides that FEHA does not preempt other discrimination provisions "unless those provisions provide less protection." Cal. Gov't Code sec. 12993(a). However, the Cammack court discerned no intent to overrule existing law, because the legislative history of the amendment did not mention the Workers' Compensation Act.

In this case, the Court of Appeal refused to delve into the legislative history, because the statutory language was clear and unambiguous. See Delaney v. Superior Court, 50 Cal. 3d 785 (1990).

City of Moorpark v. Superior Court, 1996 WL 547582 (Cal. Ct. App. Sept. 26, 1996).

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Court of Appeal explains proper uses of motions in limine

The Second District Court of Appeal in Los Angeles has explained that parties should only use motions in limine to preclude prejudicial and inadmissible evidence. It reversed a non-suit entered after the trial court precluded plaintiff from offering a theory of her case at trial.

At her deposition, Deborah Kelly testified that she was injured while exiting from the smaller of two elevators in the building where she worked. Subsequent discovery disclosed that there had been problems with the larger elevator. Kelly then stated that she was not sure which elevator caused her injury. The trial court granted defendant's motions in limine to preclude any evidence about the larger elevator.

In reversing, the Court of Appeal commented on the overuse of motions in limine. It noted that the defendant had filed 28 such motions, and suggested that many of them lacked factual foundation. It would have been better to handle the issues raised by others informally at a pretrial conference.

The trial court erred in granting the motions directed at evidence about the larger elevator, because it denied the plaintiff a fair hearing on her case. In the absence of prejudice to her opponent, a party is not bound by deposition testimony. A request for admission is the discovery device for binding a party irrevocably to a position.

Kelly v. New West Fed. Sav., 1996 WL 535072 (Cal. Ct. App. Sept. 20, 1996).

Practice Tip This case may be limited to its narrow holding that a deponent is not irrevocably bound to her deposition testimony. Other courts do not take as restrictive a view of motion in limine practice. See, e.g., Dong v. Board of Trustees, 191 Cal. App. 3d 1572 (1987) (affirming non-suit entered after trial court barred any evidence of written communications in a libel case as being statements of opinion, not fact).

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Party must perform physical reenactment at videotaped deposition

The Second District Court of Appeal in Los Angeles has ruled that a deponent may be compelled to draw a diagram and demonstrate an accident at a videotaped deposition. The ruling conflicts with the Ventura division's decision in Stermer v. Superior Court, 20 Cal. App. 4th 777 (1993).

Code of Civil Procedure section 2025(o) provides that a court may compel an "answer," if the deponent "fails to answer any question." Stermer relied on dictionary definitions in ruling that a court could only compel verbal responses.

This court pointed to section 2025(l), which states that, in videotaped depositions, the examination "shall proceed as permitted at trial under the provisions of the Evidence Code." The Evidence Code authorizes demonstrative evidence at trial. Requiring the giving of demonstrative evidence also furthered the Discovery Act's policy of preventing trial by ambush.

Emerson Elec. Co. v. Superior Court, 1996 WL 545911 (Cal. Ct. App. Sept. 26, 1996).

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New York newspaper and reporter may be sued in California for libel

The Ninth Circuit has ruled that a California resident may sue a New York newspaper and its columnist in California for libel. The defendants had purposefully availed themselves of the privilege of conducting business by publishing an article that affected the plaintiff's reputation in his home state.

The New York Daily News daily distributed 13 to 18 copies of its newspaper in California, .0017% of its circulation. One of its columnists wrote a libelous article about Berry Gordy, the founder of Motown Records. Gordy had lived in California for 24 years, and most of his friends, family, and business associates resided in California.

Rejecting the defendants' arguments that 13 to 18 copies were not enough to support jurisdiction, the Ninth Circuit said that circulation volume was not determinative. The critical fact was the residence of the libel's target in California, where he would suffer most from damage to his reputation. The defendants were "primary participants" in an intentional wrong directed at a California resident.

Gordy v. The Daily News, L.P., 1996 WL 506913 (9th Cir. Sept. 9, 1996).

Practice Tip Claims against sources of information for defamatory articles provide a variation on the Ninth Circuit's theme. A source's information may find its way into a publication distributed in the plaintiff's home state. The source lacks the control over the final form that an editor or reporter would have. Therefore, courts tend to decline jurisdiction over a mere source, even if the author of the offending article might be subject to suit. See, e.g., Reynolds v. International Amateur Athletic Fed'n, 23 F.3d 1110 (6th Cir.), cert. denied, 115 S.Ct. 423 (1994) (no jurisdiction over the IAAF in Ohio for information from a press release issued in London about an Ohio resident).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Brown Group Retail, Inc. v. Franchise Tax Board (May 1996 issue), review denied (Aug. 14, 1996).

Cammack v. GTE Corp. (September 1996 issue), now reported at 48 Cal. App. 4th 207 (1996).

Cohen v. San Bernardino Valley College (September 1996 issue), now reported at 92 F.3d 968 (9th Cir. 1996).

Durkin v. Shea & Gould (September 1996 issue), now reported at 92 F.3d 1510 (9th Cir. 1996).

Fletcher v. Kalina (September 1996 issue), now reported at 93 F.3d 653 (9th Cir. 1996).

General Motors Corp. v. Superior Court (September 1996 issue), now reported at 48 Cal. App. 4th 580 (1996).

In re Imperial Corp. of America Related Litigation (September 1996 issue), now reported at 92 F.3d 1503 (9th Cir. 1996).

Kellogg v. Asbestos Corp. Ltd. (February 1996 issue), review denied (May 15, 1996).

San Diego Gas & Electric Co. v. Superior Court (September 1996 issue), now reported at 13 Cal. 4th 893 (1996).

Sanders v. Arneson Products, Inc. (September 1996 issue), now reported at 91 F.3d 1351 (9th Cir. 1996).

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