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February 1997 
Vol. 3 No. 2 ISSN 1087-6219
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The California Supreme Court has ruled that the City of Glendale could routinely test job applicants for drugs, but could not routinely test current employees who apply for a promotion. The Court applied both Fourth Amendment principles and California's constitutional right of privacy.
Glendale required all applicants for initial positions and for promotions to submit to drug testing. Test subjects were required to provide a urine sample in a restroom cubicle while a monitor listened, but did not watch, from an adjacent cubicle. As safeguards against subterfuge, blue water was placed in the toilet bowl, and the warmth of the sample was checked.
The Court determined that the Fourth Amendment prohibited routinely testing candidates for promotion. Recent United States Supreme Court decisions authorizing suspi-cionless drug testing all involved much stronger state interests. Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602 (1989) (railroad employees directly involved in serious train accidents); Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (United States Customs Service employees who (1) were directly involved in drug interdiction, (2) carried guns, or (3) handled classified material); Vernonia Sch. Dist. 47J v. Acton, 115 S.Ct. 2386 (1995) (student athletes).
However, neither the Fourth Amendment nor the California right of privacy barred drug tests for new job applicants. An employer considering a current employee for promotion has observed the employee's behavior over time. There is no similar opportunity to evaluate a new job applicant.
Although the decision involved a governmental employer, it has implications for private employers. The California right of privacy, unlike the Fourth Amendment, applies to private entities. California employers who wish to test job applicants should assure themselves that their procedures pass muster under the case.
Government employers should watch for the United States Supreme Court's decision in Chandler v. Miller, 73 F.3d 1543 (11th Cir.), cert. granted, 117 S.Ct. 38 (1996). It involves a Georgia law that required drug tests for those seeking public office. The case was argued on January 14, 1997.
Loder v. City of Glendale, 59 Cal. Rptr. 2d 696 (Sup. Ct. 1997).
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The California Supreme Court has ruled that a merchant does not have to comply with an armed robber's demand for money, even if the robber threatens the life of a customer. The ruling overturns a Court of Appeal decision that was discussed in the January 1996 issue of Appellate Decisions Noted.
A robber shoved a gun into Kathy Brown's back at a Kentucky Fried Chicken restaurant, and demanded that a clerk give him all the money in the cash register. When the clerk temporized, the robber threatened to shoot Brown, who suffered emotional distress as a result. The clerk eventually handed over the money. Brown suffered no physical harm. The police had distributed crime prevention pamphlets in the area, which said that one should never refuse an armed robber's demand for money.
Public policy bars any liability for failure to comply with an armed robber's demand for money. Requiring compliance might actually encourage robberies. Nor was there any convincing proof that compliance actually prevents injury. The Court did leave open the possibility that liability might arise, if a merchant physically resists an armed robber.
Kentucky Fried Chicken of California, Inc. v. Superior Court, 59 Cal. Rptr. 2d 756 (Sup. Ct. 1997).
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In a decision that should convince employers not to give any job references, the California Supreme Court has ruled that school districts may be liable for misleading statements in letters of reference for a vice principal. The ruling came in a lawsuit by a 13-year old student at the school that hired the vice principal based on the allegedly false recommendations.
Randi W. alleged that Robert Gadams molested her in his office at Livingston Middle School. She also alleged that several school districts and their employees had supplied misleading letters of recommendation to the placement office at the college where Gadams received his teaching credentials. Those defendants allegedly knew that the college would provide the letters to prospective employers. Each defendant allegedly knew about prior misconduct, but nonetheless gave a glowing recommendation.
The letters contained no outright misrepresentations of what the defendants allegedly knew. However, the letters included “misleading half-truths,” which are actionable. By recommending Gadams without reservation, the letters implied that he was fit to interact appropriately with female students. The defendants allegedly knew that the implication was false.
The defendants had a duty to Randi W. to be truthful, even though the letters were not directed to her, and she did not rely on them. It was reasonably foreseeable that a female student in her position would be injured as a result of the allegedly false statements in the letters. Further, the Restatement provides for liability in the absence of reliance, where the plaintiff suffers physical harm as a result of a misstatement that threatened physical danger to others. Restatement (Second) of Torts §§ 310, 311 (1977).
The decision may place employers on the horns of a dilemma. Negative statements in a letter of reference risk liability to the employee for defamation, while positive statements risk liability to third persons. The Court counseled that employers could avoid liability by “writing a 'no comment' letter omitting any affirmative representations regarding [an employee]'s qualifications, or merely verifying basic employment dates and details.” Those limited disclosures would not trigger an affirmative duty to disclose negative facts.
Randi W. v. Muroc Joint Unified Sch. Dist., Case No. S051441 (Cal. Sup. Ct. Jan. 27, 1997).
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The Third District Court of Appeal in Sacramento has explained how Code of Civil Procedure section 2034's expert witness disclosure requirements apply to treating physicians. Plaintiff's counsel must provide an expert witness declaration for a treating physician who will testify about the standard of care in a medical malpractice case.
Section 2034 requires a party to provide an expert witness declaration for any witness “who has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action.” Section 2034 also provides that a treating physician is entitled to expert witness fees, if asked at deposition to provide opinions about “past or present diagnosis or prognosis” or “the reasons for a particular treatment decision.”
A doctor who testifies about the standard of care in a malpractice case moves beyond his or her role as a treating physician. Such an opinion does not flow from treating or diagnosing a patient. It is necessarily an opinion formed for the litigation. If a party were not required to provide an expert witness declaration for such testimony, the opposing party might be caught unawares.
Plunkett v. Spaulding, 1997 WL 18983 (Cal. Ct. App. Jan. 21, 1997).
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The Santa Ana Division of the Fourth District Court of Appeal has ruled that failure to submit a privilege log to support objections to an inspection demand does not waive the attorney-client privilege.
Korea Data Systems (KDS) asserted a "boiler plate" attorney-client privilege objection to an inspection demand from AAmazing Technologies. KDS did not provide a privilege log detailing its objections until AAmazing filed a motion to compel. The trial court ruled that KDS waived the privilege by not providing a timely privilege log.
Code of Civil Procedure section 2031 provides that a party waives the privilege, if it does not file a “timely response” asserting the privilege. KDS did assert the privilege in a timely response, although the response was not sufficiently specific. However, the discovery statutes do not provide for waiver as a sanction for failure to state the claim specifically. A trial court must follow the usual rule for discovery sanctions, by first imposing a monetary sanction, and then considering issue, evidence or terminating sanctions if a party does not obey an order compelling further responses.
Korea Data Sys. Co. v. Superior Court, 1997 WL 7279 (Cal. Ct. App. Jan. 9, 1997).
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The Ninth Circuit has ruled that a creditor resisting a preference claim on a constructive trust theory must comply with strict tracing rules. Since the creditor could not trace its funds into the debtor's account, the bankruptcy trustee recovered the funds paid to the creditor.
Taylor provided temporary personnel to Coastal, which was a subsidiary of Advent, the bankrupt debtor. Coastal transferred most of its income to Advent. Advent paid Taylor for some of the services provided to Coastal. When the bankruptcy trustee sought to recover those payments as preferences, Taylor claimed that those funds were held in constructive trust.
Funds that the debtor legitimately holds in constructive trust are not property of the bankruptcy estate. Therefore, such funds are not subject to the preferential and fraudulent transfer provisions of the Bankruptcy Code. 11 U.S.C. §§ 547(b), 548(a).
Taylor claimed that some of the funds that Coastal transferred to Advent had been wrongfully diverted, and did not belong to Advent. However, since all the funds went into a commingled bank account controlled by Advent, Taylor could not show that the money it received came from the wrongfully diverted sums, instead of from money that legitimately belonged to Advent.
Taylor Assoc. v. Diamant (In re Advent Management Corp.), 1997 WL 4761 (9th Cir. Jan. 8, 1997).
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The First District Court of Appeal in San Francisco has ruled an arbitration clause in an employment contract too one-sided to be enforced. It required the employee to arbitrate his claims, while allowing the employer to sue in court for certain breaches.
An arbitration clause appearing in an adhesion contract is unconscionable, if it (1) is not within the reasonable expectations of the weaker party, or (2) is unduly oppressive. In this case, the contract was one of adhesion because the employer presented it on a take it or leave it basis. Its one-sidedness was unduly oppressive.
The court rejected the employer's argument that the Federal Arbitration Act barred a state court from striking down an arbitration clause. As long as the ground relied on is applicable to contracts generally, there is no violation of the Act.
Stirlen v. Supercuts, Inc., 1997 WL 6975 (Cal. Ct. App. Jan. 9, 1997).
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Subsequent treatment of decisions reported on in earlier issues:
Alander v. Vaca Valley Hospital (November 1996 issue), review denied (Nov. 26, 1996).
Campanelli v. Bockrath (January 1997 issue), now reported at 100 F.3d 1476 (9th Cir. 1996).
Emerson Elec. Co. v. Superior Court (October 1996 issue), review granted (Jan. 22, 1997). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Gosvener v. Coastal Corp. (January 1997 issue), now reported at 59 Cal. Rptr. 2d 339 (Ct. App. 1996).
Hecht v. Superior Court (December 1996 issue), review denied and official reporter directed not to publish the decision (Jan. 15, 1997). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Kentucky Fried Chicken of California Inc. v. Superior Court (January 1996 issue). superseded by 59 Cal. Rptr. 2d 756 (Sup. Ct. 1997).
Romano v. Rockwell Int'l, Inc. (January 1997 issue), now reported at 14 Cal. 4th 429 (1996).
Rosenthal v. Great Western Fin. Sec. Corp. (January 1997 issue), now reported at 14 Cal. 4th 394 (1996).
Vons Companies, Inc. v. Seabest Food, Inc. (January 1997 issue), now reported at 14 Cal. 4th 434 (1996).
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