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December 1997 
Vol. 3 No. 12 ISSN 1087-6219
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The Ninth Circuit has ruled that the media and federal agents may be liable in a Bivens action for an unlawful search when they cooperate in the execution of a search warrant. The ruling reversed a summary judgment in favor of CNN and agents of the United States Fish and Wildlife Service.
71-year old Paul and 81-year old Erma Berger lived on a 75,000 acre Montana ranch. CNN learned about a Fish and Wildlife investigation of Paul Berger. (Berger had reportedly been seen poisoning or shooting eagles.) CNN entered into a written agreement with the Assistant United States Attorney in charge of the investigation. The agreement allowed CNN to accompany federal agents when they executed a search warrant at the ranch. In return, CNN promised to embargo the telecast until it was unlikely to have a prejudicial effect on any criminal proceedings.
CNN mounted cameras on the government vehicles, and wired one of the federal agents with a hidden microphone. The warrant authorized a search of the ranch, but not the residence. After Paul Berger allowed the agents into the residence, CNN recorded the conversations in the house. No one told the Bergers that CNN was taping the raid.
The Ninth Circuit rejected a qualified immunity defense, because the search invaded a clearly established right under the Fourth Amendment. The search had a major non-law enforcement purpose, entertainment, which was not disclosed in the warrant application. CNN's participation needlessly increased the invasion of the Bergers' privacy. It also violated a federal statute prohibiting private individuals from executing search warrants. The core Fourth Amendment protections include the right to be free from governmental facilitation of a private person's general search.
The court also rejected CNN's contention that it did not act “under color of law.” The written agreement between CNN and the government made the search “joint action,” which is sufficient involvement to make an otherwise private actor subject to a Bivens action. Dennis v. Sparks, 449 U.S. 24 (1980). The court suggested that media entry onto searched premises by means of government authority might be sufficient by itself to constitute joint action.
Berger v. Hanlon, 1997 WL 702818 (9th Cir. Nov. 13, 1997).
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The law governing liability for damages incurred by fetuses and parents during pregnancy and childbirth is still developing. Two recent decisions explore claims for direct victim emotional distress damages, and for wrongful birth.
In the first case, Dr. Jorge Arce was Diana Zavala's obstetrician during her pregnancy. She did not give birth on the due date that Dr. Arce assigned. Dr. Arce did not induce labor until the 18th day after the due date. The fetus died before labor was induced. Zavala's expert declared that Dr. Arce should have induced labor earlier. The San Diego division of the Fourth District Court of Appeal reversed a summary judgment for Dr. Arce.
Zavala could not maintain a wrongful death action on behalf of her fetus, because a fetus is not a “person” within the meaning of the wrongful death statute. Justus v. Atchison, 19 Cal. 3d 564 (1977). However, in Burgess v. Superior Court, 2 Cal. 4th 1064 (1992), the Supreme Court determined that a woman could recover emotional distress damages as the direct victim of a negligent delivery. In Burgess, the fetus was born alive. However, that was not a material difference. The recoverable damages for such a cause of action do not include any emotional distress arising from loss of the child's affection, society, companionship and love.
The second case, by contrast, involved a claim that a child should not have been born -- commonly called wrongful birth. Chris Jones was an Army sergeant stationed at Ford Ord. An Army gynecologist prescribed birth control pills for Jones's wife Karyn, but did not warn her that antibiotics could reduce the pills' efficacy. A short while later, an Army oral surgeon prescribed penicillin in connection with planned dental work. He did not warn about any effect on the birth control medication. Karyn became pregnant and gave birth to a baby girl.
The Ninth Circuit affirmed a judgment for the United States. The test that revealed the pregnancy also showed that Karyn must have conceived before she started taking the antibiotics. If they had established liability, the Joneses would presumably have sought the economic damages associated with raising an unplanned child.
The potential claim of an unplanned child in such circumstances would be one for “wrongful life.” However, wrongful life claims are generally limited to the extraordinary expenses incurred by someone with birth defects, or with damage sustained during pregnancy or childbirth. The theory in such cases is that the pregnancy would have been avoided, or the birth aborted, if the condition had been properly diagnosed, and the parents fully informed. Turpin v. Sortini, 31 Cal. 3d 220 (1982).
Zavala v. Arce, 58 Cal. App. 4th 915 (1997); Jones v. United States, 1997 WL 665548 (9th Cir. Oct. 28, 1997).
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The Second District Court of Appeal in Los Angeles has ruled that an attorney's pre-litigation investigation into the circumstances that gave rise to an employee's claim may be privileged. However, the privilege may be waived if the investigation is relevant to the employer's defense of the employee's lawsuit.
Wellpoint Health Networks laid off Barry McCombs after contracting the work of his department out to an accounting firm. The law firm of Lafayette, Kumagai & Clarke investigated McCombs's employment and discharge. It concluded that the employer had acted lawfully. McCombs sued, claiming racial discrimination and retaliation.
McCombs noticed a deposition of the lawyer who conducted the investigation, and subpoenaed all related documents. The trial court held that no privilege applied, because the lawyer had not been acting in his attorney capacity. The Court of Appeal said there was no evidence that the lawyer had stepped out of his attorney role. Therefore, the attorney-client and work product privileges applied.
However, if the employer intended to rely on the lawyer's investigation to prove that it had taken prompt and adequate remedial action in response to information about a hostile working environment, it would waive the privilege. In the case before the court, the pleadings were not far enough advanced to determine whether the employer would be raising such a defense.
Wellpoint Health Networks, Inc. v. Superior Court, 1997 WL 706218 (Cal. Ct. App. Nov. 13, 1997).
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The Third District Court of Appeal in Sacramento has ruled that the Department of Corrections could not discharge a correctional sergeant for complaining to a Hispanic officer about preferential treatment of Hispanics. The decision affirmed a ruling by the State Personnel Board that reduced the discharge to a 30-day suspension.
Johnny Wallace was a white sergeant who resented preferential treatment for Hispanics. He particularly resented the appointment of Sergeant Picone, a Hispanic female, to a more prestigious position that he wanted so that he could spend more time with his 13-year old son. Picone placed very low on a 1990 sergeant's examination, but received a temporary appointment as sergeant under the Department's statutorily mandated affirmative action program. She was appointed to the prestigious position ahead of Wallace because the Department wanted to increase the visibility of minority females. Picone did not take the next sergeant's examination, her temporary appointment expired, and she reverted to correctional officer status.
When Picone heard that Wallace had been making negative comments about her, she privately asked him to stop. Wallace vented his frustrations about affirmative action on her in coarse language. At one point, he grabbed hold of her shirt lapel, and started shaking her. The Department discharged Wallace for discourteous treatment and unlawful discrimination. The State Personnel Board said that his opinions about affirmative action were protected by the First Amendment, and that he could only be disciplined for discourtesy.
The Court of Appeal agreed. Determining the appropriate level of discipline for a public employee's speech-related activities requires a balance between the employee's interest in commenting as a citizen, and the employer's interest in promoting efficiency in the delivery of public services. The First Amendment only protects comments about matters of public concern. Discussion about personal grievances is not protected.
Although Wallace's comments to Picone dealt with his personal situation, they dealt with affirmative action, a subject of intense public concern. Since they were constitutionally protected, the Department had to demonstrate some resulting actual or potential harm. The affirmative action policy had already created divisions. Therefore, the court ruled: “Wallace's outburst was merely a manifestation of this preexisting disharmony.”
In dissent, Justice Sims stated that Wallace's conduct had contributed to the creation of a hostile work environment in violation of the anti-discrimination laws. The First Amendment does not protect expression that constitutes unlawful discrimination.
Recent issues of Appellate Decisions Noted have reported on other decisions that discussed the effect of the First Amendment on public employee discipline. See Fazio v. City and County of San Francisco (November 1997), Campbell v. California State Personnel Bd. and Kirchmann v. Lake Elsinore Unified Sch. Dist. (October 1997), and Weisbuch v. County of Los Angeles (August 1997).
California Dep't of Corrections v. State Personnel Bd., 1997 WL 710346 (Cal. Ct. App. Nov. 13, 1997).
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The First District Court of Appeal in San Francisco has invoked the “dual capacity” rule to overturn a summary judgment for an employer, which had been based on workers' compensation preemption.
Beth Weinstein injured her foot while working at St. Mary's Medical Center. She stopped working and began drawing temporary disability and ongoing medical payments in the workers' compensation system. While receiving medical treatment for her foot at the Medical Center a few months later, she slipped and fell in the hallway and sustained further injury. She sued the Medical Center for personal injury.
The Workers' Compensation Act generally preempts claims against an employer that grow out of the employment relationship. Cal. Lab. Code § 3600. However, if the employer acts toward the employee in another capacity, obligations may arise that fall outside the workers' compensation system. D'Angona v. County of Los Angeles, 27 Cal. 3d 661 (1980). Weinstein suffered her injury when she was on the Medical Center's premises as a patient, not as an employee.
Weinstein v. St. Mary's Med. Ctr., 58 Cal. App. 4th 1223 (1997).
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Subsequent treatment of decisions reported on in earlier issues:
Aronson v. Kinsella (November 1997 issue), now reported at 58 Cal. App. 4th 254 (1997).
Coalition for Economic Equity v. Wilson (May 1997 issue), cert. denied (U.S. Nov. 3, 1997).
Epstein v. MCA, Inc. (November 1997 issue), now reported at 126 F.3d 1235 (9th Cir. 1997).
Fazio v. City and County of San Francisco (November 1997 issue), now reported at 125 F.3d 1328 (9th Cir. 1997).
Hall v. LaRonde (September 1997 issue), review denied (Oct. 22, 1997).
Jones v. Bates (November 1997 issue), petition for certiorari filed (Oct. 30, 1997), rehearing en banc granted (Nov. 4, 1997).
Marks v. Loral Corp. (August 1997 issue), review denied (Oct. 29, 1997).
McGettigan v. Bay Area Rapid Transit Dist. (October 1997 issue), review denied (Nov. 12, 1997).
Mosca v. Lichtenwalter (November 1997 issue), petition for review filed (Nov. 3, 1997).
Reno v. Baird (October 1997 issue), petition for review filed (Oct. 31, 1997).
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