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November 1996 
Vol. 2 No. 11 ISSN 1087-6219
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Because their employer is the government, public employees have free speech rights in the workplace. However, the government may impose greater restrictions in its role as employer than in its role as regulator of the general public. Pickering v. Board of Educ., 391 U.S. 563 (1968) Two recent Ninth Circuit decisions explore the scope of permissible restrictions.
The California Board of Education ordered the employees in its Child Nutrition and Food Distribution Division to refrain from written and oral religious advocacy in the workplace. It also banned display of religious materials outside the employees' personal cubicles. Monte Tucker, a computer analyst whose beliefs required him to credit God for his work, challenged the restrictions.
In directing entry of judgment for Tucker, the Ninth Circuit ruled that the Department had not carried the burden of showing that its interests outweighed those of its employees. The Department's only legitimate interest was to avoid the appearance of endorsing a particular religion. Its order was overbroad, because it applied even to private discussions during breaks. The ban on all workplace display of religious materials was too restrictive. The Department could have provided employee bulletin boards, and restricted postings to them.
In the second case, an employee of the Washington State Democratic Caucus claimed that his legislator employers fired him for opposing illegal campaign activity by other Caucus employees. The Ninth Circuit rejected a legislative immunity defense, because personnel decisions are administrative rather than legislative.
The legislators also claimed qualified immunity. Public employees have a clearly established right not to be discharged for speech about matters of public concern. The public employer may show that its interest in efficiency outweighs the employee's interest. The Caucus made no such claim. Therefore, its defense failed.
Tucker v. State of California Dep't of Educ., 1996 WL 563608 (9th Cir. Oct. 3, 1996); Chateaubriand v. Gaspard, 1996 WL 566855 (9th Cir. Oct. 7, 1996).
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The First District Court of Appeal in San Francisco has ruled that the "dual capacity" doctrine will not save a hospital employee's malpractice claim for medical care administered as part of an employee health benefit. Therefore, the Worker's Compensation Act provided her exclusive remedy.
Eleanor Alander's hand was punctured with possibly contaminated scissors, while she was working as a volunteer at Vaca Valley Hospital. As part of its employee health program, the hospital paid for voluntary HIV antibody testing in such situations, either in-house or at an outside laboratory. Alander chose to have the hospital test her. As a result of the testing, she sustained nerve damage in her right arm.
The Worker's Compensation Act is usually the sole remedy against an employer for injuries suffered in the course of employment. Cal. Lab. Code sec. 3602(a). If the defendant steps out of its employer role, and becomes a medical care provider, the dual capacity doctrine authorizes a separate malpractice action. Duprey v. Shane, 39 Cal. 2d 781 (1952). The doctrine does not apply if the medical care is provided as part of the employment relationship. Bell v. Macy's California, 212 Cal. App. 3d 1442 (1989)
In this case, Alander received the hospital's testing services as a benefit of her employment. The hospital provided the testing pursuant to its obligations under the employee health program. The dual capacity doctrine did not apply.
Alander v. Vaca Valley Hospital, No. A070687 (Cal. Ct. App. Sept. 5, 1996).
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The Second District Court of Appeal in Los Angeles has affirmed dismissal of a claim that law enforcement officials should have protected an informant from gang retaliation. There was no duty, because the officials did not affirmatively promise protection.
Moises Torrez was affiliated with the Happy Town gang. Pomona detectives assured Torrez and his mother that no harm would come to him, if he gave them a statement. He then implicated a fellow gang member in a murder. At trial, Torrez stonewalled the prosecution's examination. The prosecutor then read his statement to the jury. A week later, fellow gang members killed Torrez in retaliation.
Law enforcement officials have a duty to warn, if their actions create a foreseeable peril to a specific potential victim. Wallace v. City of Los Angeles, 12 Cal. App. 4th 1385 (1993). This case did not implicate that duty, because Torrez and his mother were well aware of the dangers associated with talking to the police.
Public officials may also be liable for injuries sustained by citizens asked to assist in the performance of dangerous law enforcement duties. Walker v. County of Los Angeles, 192 Cal. App. 3d 1393 (1987) (private citizen injured while helping animal control officer capture abandoned dog). However, private citizens have an obligation to provide evidence in criminal prosecutions, enforceable by subpoena. There could be no duty to Torrez, in the absence of a specific commitment to protect him from gang retaliation.
Hernandez v. City of Pomona, 1996 WL 576770 (Cal. Ct. App. Oct. 8, 1996).
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The California Supreme Court has ruled that inactive status does not necessarily render a lawyer unfit to be a lawyer. Therefore, a criminal defendant may not have his conviction reversed just because his lawyer did not meet his MCLE obligations.
A criminal defendant's right to counsel includes the right to be represented by someone who is admitted to practice in California. A conviction must be reversed if the defendant's lawyer was never admitted, was fraudulently admitted, or resigned. In re Johnson, 1 Cal. 4th 689 (1992).
However, a lawyer is not disbarred for failure to meet his or her MCLE obligations. He or she is placed on inactive status, subject to restoration upon proof of compliance. The decision to place a lawyer on inactive status does not necessarily reflect on the lawyer's competence. It may result from mere failure to keep proper records. Therefore, inactive status does not per se establish ineffective assistance of counsel.
People v. Trin Trung Ngo, 1996 WL 609562 (Cal. Sup. Ct. Oct. 24, 1996).
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The San Diego division of the Fourth Appellate District Court of Appeal has ruled that the trial court may allow settling defendants to participate in the trial. The settling defendants stood to gain from the plaintiffs' success at trial.
In a classic "Mary Carter" settlement, the plaintiff secretly agrees with one of multiple defendants on a sliding scale payment, which will be reduced upon recovery from the other defendants. At the ensuing trial, the settling defendant presumably tries to maximize the plaintiff's recovery. The non-settling defendants are not told about the change in the alignment of interests.
California Code of Civil Procedure section 877.5 recognizes sliding scale settlements, but requires disclosure to the court and to the non-settling parties. If a settling defendant testifies at trial, the court may tell the jury enough about the agreement to reveal possible bias.
In this case, the settling defendants' insurers agreed to pay plaintiffs $3.5 million up front, and guaranteed an additional $4.5 million. They agreed to divide recoveries from the non- settling defendants, with 80% to the settling defendants and 20% to the plaintiffs until the guaranteed amount was recouped. Further recoveries were allocated 20% to the settling defendants, and 80% to the plaintiffs. The agreement provided for the settling defendants to remain in the action for trial.
The Court of Appeal declined to overturn the trial court's rulings (1) that the settlement was in good faith, and (2) that the settling defendants could participate at trial. The statutory disclosure requirements obviated any potential unfairness.
Alcala Co. v. Superior Court, 1996 WL 570164 (Cal. Ct. App. Oct. 7, 1996).
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The First District Court of Appeal in San Francisco has upheld an award of the costs of court-ordered mediation. Such an award is within the discretion conferred by California Code of Civil Procedure section 1033.5.
Section 1033.5 lists a number of recoverable cost items, such as filing fees and deposition costs. Subdivision (c) gives the trial court discretion to award additional costs not otherwise prohibited, if they are "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation."
Encouraging early resolution of disputes has become "a necessary part of litigation as conducted in this state." Therefore, the prevailing party may recover court-ordered mediation costs. The court did not decide whether the costs of voluntary mediation were recoverable.
Gibson v. Bobroff, 57 Cal. Rptr. 2d 235 (Ct. App. 1996).
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The Second District Court of Appeal in Los Angeles has dismissed an appeal from an order compelling compliance with a subpoena. The decision conflicts with a 1993 ruling by the Fourth District.
The Department of Corporations issued a subpoena to Merging Capital, which refused to comply. The Department filed a petition to compel compliance. The court ordered compliance. Merging Capital did not comply. The Department did not seek enforcement of the order. Merging Capital appealed.
There is no inherent right to appeal. The right is wholly statutory. In Millan v. Restaurant Enter. Group, Inc., 14 Cal. App. 4th 477 (1993), the Court of Appeal held that an order compelling compliance with a Department of Labor Standards Enforcement subpoena was appealable under Code of Civil Procedure section 904.1, as a final judgment in a special proceeding.
This court refused to follow the decision, ruling that an order to produce was not among the appealable orders set forth in section 904.1. Further, since Merging Capital has suffered no adverse consequences from its failure to comply, it was not an aggrieved party under section 902.
The court also declined to treat the appeal as a petition for a writ of mandate, because there was no showing that Merging Capital lacked an adequate remedy at law. If Merging Capital were found in contempt of the order, it could seek a writ of certiorari, also known as a writ of review. Mitchell v. Superior Court, 28 Cal. App. 3d 759 (1972); Cal. Civ. Proc. Code secs. 1067 et seq.
Bishop v. Merging Capital, Inc., 1996 WL 596661 (Cal. Ct. App. Oct. 17, 1996).
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Subsequent treatment of decisions reported on in earlier issues:
City of Moorpark v. Superior Court (October 1996 issue), now reported at 57 Cal. Rptr. 2d 156 (Ct. App. 1996).
Compassion in Dying v. State of Washington (April 1996 issue), cert. granted sub nom. Washington v. Glucksberg, 1996 WL 411596 (Oct. 1, 1996).
Emerson Elec. Co. v. Superior Court (October 1996), now reported at 56 Cal. Rptr. 2d 897 (Ct. App. 1996).
Gordy v. The Daily News. L.P. (October 1996), now reported at 95 F.3d 829 (9th Cir. 1996).
Kelly v. New West Fed. Sav. (October 1996), now reported at 49 Cal. App. 4th 659 (1996).
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (October 1996), now reported at 49 Cal. App. 4th 487 (1996).
Quelimane Co. v. Stewart Title Guaranty Co. (July 1996 issue), review granted (Sept. 18, 1996). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Siegel v. Fidelity National Title Ins. Co. (August 1996 issue), review denied (Sept. 18, 1996).
Weinbaum v. Goldfarb, Whitman & Cohen (August 1996 issue), review denied (Sept. 25, 1996).
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