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September 1997 
Vol. 3 No. 9 ISSN 1087-6219
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The Ninth Circuit has ruled that a reporter may lawfully record an interview without permission. It affirmed summary judgment for ABC in a case brought by a flight attendant on the plane that O.J. Simpson took to Chicago the night that Nicole Brown Simpson and Ronald Goldman were murdered.
Beverly Deteresa was a flight attendant on American Airlines flight 668 the night of June 12, 1994. On June 19, Anthony Radziwill, an ABC producer, talked to her at the door of her condominium. Deteresa said that she did not wish to appear on his show, but mentioned that she was frustrated at news reports that she knew were false. When Radziwill called her the next morning, Deteresa again declined to appear. He told her that he had audiotaped their previous conversation, and that a camera operator had videotaped it from a nearby public street. Deteresa's husband told ABC not to use the tape. ABC ran a 5-second clip from the videotape on its “Day One” program, and reported the substance of the interview.
Deteresa alleged five causes of action, including eavesdropping in violation of Penal Code section 632. Section 632 prohibits eavesdropping upon or recording a confidential communication. A communication is confidential if the circumstances “reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” It is not confidential if the parties “may reasonably expect that the communication may be overheard or recorded.” Deteresa knew that Radziwill worked for ABC. She did not ask him to keep the conversation confidential. Therefore, “no one in Deteresa's shoes could reasonably expect that a reporter would not divulge her account of where Simpson had sat on the flight and where he had or had not kept his hand.”
The other four causes of action also lacked merit: (1) There was no privacy violation, because she was in public view while being videotaped. The taped interview did not involve intimate details of her life. (2) Federal law exempts eavesdropping by a party to the conversation. (3) The fraud claim rested on non-disclosure, but there was no evidence of a relationship that would give rise to a duty to disclose. (4) Deteresa had no evidence of the widespread unlawful conduct necessary to support an unfair business practices claim.
Deteresa v. American Broadcasting Cos., 1997 WL 420298 (9th Cir. Jul. 29, 1997).
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The Ventura division of the Second District Court of Appeal has held that physical presence is not required for personal jurisdiction over an out-of-state party who contracts with a California vendor. Electronic contacts by e-mail and telephone are sufficient.
Blake Hall wrote a software module in California. He contacted Brad LaRonde in New York by e-mail. LaRonde agreed to incorporate Hall's module into LaRonde's retail software package, with Hall to receive $1 for every sale that included his module. Hall and LaRonde arranged for modifications to the module through e-mail and telephone communications. Hall did all his work in California. LaRonde never went to California. Hall sued LaRonde for non-payment in California.
In Interdyne Co. v. SYS Computer Corp., 31 Cal. App. 3d 508 (1973), the court found jurisdiction lacking where a California plaintiff shipped goods to a New Jersey buyer, after negotiating for several months by mail and telephone. “When a California business seeks out purchasers in other states-purchasers who are not 'present' in California for general purposes-deals with them only by out-of-state agents or by interstate mail and telephone, it is not entitled to force the customer to come to California to defend an action on the contract.”
Here, the Court of Appeal pointed out that the speed and ease of electronic communications had increased substantially since the Interdyne decision. “There is no reason why the requisite minimum contacts cannot be electronic.” Further, LaRonde had not just purchased product from Hall. He had worked with Hall to integrate the software module into LaRonde's product.
Hall v. LaRonde, 1997 WL 447002 (Cal. Ct. App. Aug. 7, 1997).
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The California Supreme Court has determined that local trial court reduction delay rules are subject to Code of Civil Procedure section 575.2's prohibition on dismissals that are the fault of counsel, not of the litigant. The 1990 Trial Court Delay Reduction Act does not override that prohibition.
The superior court dismissed Danny Garcia's complaint after his attorney failed to comply with local court rules governing the progress of cases toward trial. The Court of Appeal reversed because there was no evidence that Garcia had caused the violation. The Supreme Court affirmed.
Code of Civil Procedure section 575.2(b) provides: “It is the intent of the Legislature that if a failure to comply with these [local] rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party's cause of action or defense thereto.”
The defendants contended that the case was governed by Government Code section 68608(b), which is part of the Trial Court Reduction Delay Act. It provides: “Judges shall have all the powers to impose sanctions authorized by law, including the power to dismiss actions or strike pleadings, if it appears that less severe sanctions would not be effective after taking into account the effect of previous sanctions or previous lack of compliance in the case. Judges are encouraged to impose sanctions to achieve the purposes of this [Act].”
Section 68608(b) is not an independent grant of sanction power. It allows judges to impose “sanctions authorized by law.” A sanction imposed in violation of section 575.2(b) is not authorized by law. The Court disapproved Intel Corp. v. USAIR, Inc., 228 Cal. App. 3d 1559 (1991) and Laguna Auto Body v. Farmers Ins. Exchange, 231 Cal. App. 3d 481 (1991) to the extent that they are inconsistent with its conclusion.
Garcia v. McCutchen, 1997 WL 461984 (Cal. Sup. Ct. Aug. 14, 1997).
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The Ninth Circuit has ruled that a 25-pound lifting restriction does not substantially limit a major life activity. Therefore, a person with such a restriction has no claim under the Americans with Disabilities Act.
Cynthia Thompson worked for Holy Family Hospital as a registered nurse. She sustained a work-related injury in April 1987. After a recurrence that caused her to miss work, her doctor released her to return to work in February 1992 with the following restrictions: no lifting more than 25 pounds on a continuous basis, no lifting more than 50 pounds twice a day, and no lifting more than 100 pounds once a day. Holy Family decided that she could not provide total patient care with those restrictions, and placed her on a leave of absence. The Ninth Circuit affirmed a summary judgment dismissing her ADA claim.
The ADA prohibits discrimination against a person with a disability. A “disability” is “a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual.” 42 U.S.C. § 12102(2). “Lifting” and “working” are “major life activities.” 29 C.F.R. § 1630.2(i).
The Ninth Circuit joined the Fourth, Fifth and Eighth Circuits in concluding that lifting restrictions like Thompson's did not demonstrate a substantial limitation on her ability to lift. A person can do plenty of lifting within those restrictions.
There was also no substantial limitation on her ability to work. Thompson had to show that she was “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j), 3(i). Inability to perform one particular job, or the job of her choice, does not prove a substantial limitation.
Thompson v. Holy Family Hospital, 1997 WL 464695 (9th Cir. Aug. 8, 1997).
Discuss this decision in the Appellate Counsellor 9th Circuit List.
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The Ninth Circuit has rejected a claim of qualified immunity by school district officials who allegedly failed to prevent a student teacher and male students from sexually harassing a female sixth grader. The duty to prevent such harassment was clearly established under Title IX at the time in question.
Oona was in the sixth grade during the 1992-93 school year. She alleged that her teacher, her principal and the director of elementary education failed to take steps to prevent sexual harassment. A student teacher allegedly engaged in inappropriate touching. Male students allegedly used offensive language.
In Doe v. Petaluma Sch. Dist., 54 F.3d 1447 (9th Cir. 1995), the Ninth Circuit had held that a duty under Title IX to prevent harassment was not well established in 1990. In February 1992, the Supreme Court decided Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60 (1992). That case established that failure to prevent sexual harassment was a Title IX violation. By October of 1992, when the conduct that Oona alleged began, that rule was clearly established.
Oona R.-S.- v. McCaffrey, 1997 WL 458675 (9th Cir. Aug. 13, 1997).
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The Ninth Circuit has explained the circumstances under which a bank may provide information about a customer to law enforcement officials without violating the Right To Financial Privacy Act. A bank may provide identifying information and the nature of possible illegal activity even if the law enforcement officials request it without a certification of compliance with the Act.
The Act generally prohibits release of a customer's records to law enforcement officials absent certification that the officials have complied with the Act. To comply, officials must notify the customer, who has an opportunity to contest any disclosure. However, the Act also provides that “[n]othing in this title shall preclude any financial institution … from notifying a Government authority that such institution … has information which may be relevant to a possible violation of any statute or regulation.”
In the present case, a federal agent contacted Bank of America, which provided information relevant to a possible violation of the law by its customer. The customer contended that the Bank of America did not “notify” the government, since it had responded to a government inquiry. The exception should apply only if the bank “volunteers” the information. However, “notify” does not mean “volunteer.” It means give notice, or inform. Therefore, the exception does not include a requirement that the bank keep silent in the face of a government inquiry.
Puerta v. United States, 1997 WL 453641 (9th Cir. Aug. 12, 1997).
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Subsequent treatment of decisions reported on in earlier issues:
1111 Prospect Partners, L.P. v. Superior Court (November 1995 issue), review dismissed (Jul. 9, 1997).
Alexandria S. v. Pacific Fertility Med. Ctr. (June 1997 issue), review denied (Jul. 30, 1997).
Astaire v. Best Film & Video Corp. (July 1997 issue), now reported at 116 F.3d 1297 (9th Cir. 1997).
Coalition for Economic Equity v. Wilson (May 1997 issue), request for rehearing en banc denied (Aug. 21, 1997).
Durkin v. Shea & Gould (September 1996 issue), cert. denied, 117 S.Ct. 1553 (1997).
Hashimoto v. Dalton (August 1997 issue), now reported at 118 F.3d 671 (9th Cir. 1997).
Marks v. Loral Corp. (August 1997 issue), now reported at 66 Cal. Rptr. 2d 46 (Ct. App. 1997).
People v. Coley (March 1997 issue), review denied (May 14, 1997).
Sharon P. v. Arman, Ltd. (July 1997 issue), now reported at 56 Cal. App. 4th 266 (1997).
Smith v. FEHC (May 1996 issue), cert. denied, 117 S.Ct. 2531 (1997).
Yeaw v. Boy Scouts of America (July 1997 issue), review granted (Aug. 20, 1997). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
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