 |
|
|
|
February 1998 
Vol. 4 No. 2 ISSN 1087-6219
Copyright and Trademark Notice | Disclaimer
Go to the Newsletter Link to subscribe or to leave any comments you may have on the newsletter.
The California Supreme Court has ruled that an employer may discharge an employee, if it had reasonable grounds for believing that misconduct occurred. An implied agreement not to discharge except for good cause does not require the employer to prove that the misconduct actually occurred.
Rollins Hudig Hall International hired Ralph Cotran as a senior vice president in 1988. In March 1993 another employee complained that Cotran was sexually harassing two female employees - Carrie Dolce and Shari Pickett. Dolce and Pickett supplied Rollins with written statements that detailed extremely offensive behavior. Cotran said nothing about having had consensual relations with the two women.
Susan Held, Rollins's equal employment opportunity manager launched an investigation. Held spoke with 21 people, including five whom Cotran had asked her to interview. Held believed that Dolce and Pickett were credible. She concluded it was more likely than not that harassment had occurred. Rollins discharged Cotran on April 23, 1993.
At trial, Cotran claimed that he had a sexual relationship with Dolce from February 1991 to February 1993. He also testified that he had an affair with Pickett from January to April 1992. Cotran claimed that both women were angry, because he had been "two-timing" them. Cotran also said that Dolce was trying to force him to give her a substantial pay raise. Dolce and Pickett testified to the incidents recounted in their written statements, and denied any sexual relationships with Cotran.
The trial court instructed the jury to determine whether the misconduct had actually occurred. The jury determined that it had not, and awarded Cotran $1.78 million for lost compensation. The Supreme Court affirmed the Court of Appeal's reversal of the jury verdict.
Implied "good cause" for discharge means "fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual. A reasoned conclusion, in short, supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond." The Court noted that a wrongful termination claim based on an express good cause term might require a different standard.
Cotran v. Rollins Hudig Hall Int'l, 17 Cal. 4th 93 (1998).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The California Supreme Court has ruled that an out-of-state law firm may not enforce its fee agreement with a California business for legal services performed in California. The firm had practiced "substantial law" in California in connection with a dispute with another business located in California.
The Birbrower firm entered into a written fee agreement with ESQ Business Services for "[a]ll matters pertaining to the investigation of and prosecution of all claims and causes of action against Tandem Computers Incorporated." Both ESQ and Tandem have their principal places of business in California. The fee agreement provided for the application of California law.
Two Birbrower attorneys made several trips to California. They met with ESQ and its accountants to discuss the dispute, and the strategy for resolving it. They spoke on ESQ's behalf in meetings with Tandem representatives. They filed an arbitration demand in San Francisco, and participated in the selection of arbitrators. They gave advice and made recommendations during the negotiations that eventually led to a settlement.
ESQ sued the Birbrower firm for malpractice. Birbrower counterclaimed for payment of the fee owed under the fee agreement. The Superior Court dismissed that claim, and the Court of Appeal denied Birbrower's petition for a writ of mandate. The Supreme Court affirmed, but said that Birbrower could pursue a claim for severance of that portion of the fee agreement related only to services performed in New York.
Business and Professions Code section 6125 provides: "No person shall practice law in California unless the person is an active member of the State Bar." Practicing law includes legal advice and document preparation, whether or not done in the course of litigation. One who violates that provision may not recover compensation for legal services performed in California, even if there was full disclosure to the client.
Whether or not the practice of law has occurred in California is a complicated question in this day of law firms with offices in several states. The physical presence of a lawyer in California is a factor to be considered, but is not determinative. "The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations."
In this case, the Birbrower firm engaged in substantial activity constituting the practice of law in California. Therefore, it could not enforce the fee agreement with respect to those services.
However, California law permits a court to sever the illegal portion of a contract from the remainder. On remand, Birbrower may be able to show that some of the fee was attributable to services rendered in New York.
Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 1998 WL 1346 (Cal. Sup. Ct. Jan. 5, 1998).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The California Supreme Court has ruled that a district attorney acts on behalf of the State when preparing to prosecute and prosecuting, and when establishing policy and training employees in those areas. Therefore, his home county cannot be held liable for his policies under 42 U.S.C. section 1983. Further, the district attorney would not be subject to suit in his official capacity.
Neither a state nor its officials acting in their official capacities may be sued for damages under section 1983. However, local governments may be sued for civil rights violations that arise from their policies and customs, as may their officials acting in their official capacities.
In McMillian v. Monroe County, 117 S.Ct. 1734 (1997), the United States Supreme Court consider whether Alabama sheriffs represent the county or the state for purposes of section 1983. The issue is one for determination by the court as a matter of law, based on the status of the official under state law, custom and usage. In that case, the Supreme Court determined that the Alabama sheriffs represented the state.
In the present case, the California Attorney General supervises the district attorneys pursuant to the California Constitution. The district attorney prosecutes in the name of the people of the entire state. Although the counties provide for district attorney compensation, Government Code section 25303 prohibits the board of supervisors from obstructing the district attorney's investigative or prosecutorial function. In light of all those factors, the Supreme Court concluded that district attorneys acted for the state.
The Court noted that its conclusion "might differ were plaintiffs challenging a district attorney's alleged action or inaction related to hiring or firing an employee, workplace safety conditions, procuring office equipment, or some other administrative function arguably unrelated to the prosecution of state criminal law violations."
Pitts v. County of Kern, 1998 WL 30251 (Cal. Sup. Ct. Jan. 29, 1991).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The Second District Court of Appeal in Los Angeles has ruled that a plaintiff may not present expert testimony regarding the value of "hedonic" damages. Hedonic damages are those that compensate an injured party for the loss of enjoyment of life.
Shereen Loth suffered personal injuries when a 24-wheel tractor-trailer rig collided with her car. She claimed that, as a result of the accident, she lost a large part of her ability to enjoy life because continuing pain restricted her daily activities.
Loth's expert economist Stanley V. Smith testified that he had computed the basic economic value of life from (1) the cost of protective devices, (2) the extra compensation employers paid for performance of hazardous jobs, and (3) various cost-benefit analyses from federally mandated safety projects. The value of Loth's 44-year remaining life expectancy was $2.3 million. He told the jury that a 33 percent loss of enjoyment was worth $1.68 million, 10 percent $510,000, and 5 percent $255,000.
In California, a pain and suffering award may include compensation for loss of the enjoyment of life. However, the award must be based on the personal circumstances of each individual plaintiff. How others would feel if placed in plaintiff's position is irrelevant. Smith's expert testimony was improper for two reasons:
First, California law prohibits separate instructions on pain and suffering, and loss of the enjoyment of life. There is a concern that attempting to separate the two may lead to double recovery. Allowing expert testimony on loss of the enjoyment of life posed the same danger.
Second, the subject matter was not a permissible subject for expert opinion. Evidence Code section 801 limits such testimony to subjects "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." In the court's words, "[n]o amount of expert testimony on the value of life could possibly help a jury decide that difficult question. A life is not a stock, car, home, or other such item bought and sold in some marketplace."
Loth v. Truck-A-Way Corp., 60 Cal. App. 4th 757 (1998).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The Fifth District Court of Appeal in Fresno has ruled that an employer is not liable for disability discrimination, unless it knows about the employee's specific disability.
Edward J. Pensinger, Jr. had difficulty reading and writing from elementary school on. He went to work for Bowsmith, Inc. as a sales representative in August 1982. The job required him to make written "call reports." Pensinger claimed that his supervisor allowed him to make oral reports because of his reading and writing difficulties.
Some time after that supervisor left, the president of the company insisted that Pensinger submit written reports. Pensinger explained that he had a problem with reading and writing, but did not identify any particular learning disability. Bowsmith asked plaintiff to undergo testing to determine the extent of the problem, but he never did. The company discharged him for not providing the information that it required.
Over a year later an educational psychologist diagnosed Pensinger as suffering from "Developmental Reading Disorder," a recognized psychological disability. Pensinger sued, alleging that Bowsmith discharged him in violation of the public policy against disability discrimination contained in the Fair Employment and Housing Act (FEHA).
Bowsmith argued that Pensinger did not have a mental disability, because his learning disability did not substantially limit a major life activity. The court explained that the FEHA definition of "mental disability," unlike the definition of "physical disability," did not contain such a requirement. "While we may question the wisdom of making the hurdle higher for a person who has suffered the loss of a limb to prove he or she suffers from a disability for purposes of the FEHA, than it is for a person who does not read well, we are not at liberty to ignore the plain language of the statute or supplant our judgment for that of the Legislature."
Pensinger could not prove that Bowsmith knew about his learning disability. Knowledge of difficulty with reading and writing did not constitute knowledge of the disability. The deficiency could have been the result of poor education rather than a disability.
Pensinger v. Bowsmith, Inc., 60 Cal. App. 4th 709 (1998).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
Subsequent treatment of decisions reported on in earlier issues
Aronson v. Kinsella (November 1997 issue), review denied (Dec. 23, 1997).
Barris v. County of Los Angeles (January 1998 issue), now reported at 60 Cal. App. 4th 471 (1997).
Bates v. Jones (January 1998 issue), now reported at 131 F.3d 843 (9th Cir. 1997), petition for certiorari filed (Jan. 13, 1998).
Jackson v. County of Los Angeles (January 1998 issue), now reported at 60 Cal. App. 4th 171 (1997).
Mosca v. Lichtenwalter (November 1997 issue), review denied (Dec. 10, 1997).
Quackenbush v. Superior Court (January 1998 issue), 60 Cal. App. 4th 454 (1997).
Ram v. Rubin (August 1997 issue), cert. denied, 1998 WL 6429 (U.S. Jan. 12, 1998).
Copyright © 2004 Calvin House. Appellate Counsellor® and Appellate Decisions Noted® are registered marks used in commerce by Calvin House since 1995. All rights to those marks are claimed. |
Calvin House |
URL for this page http://www.appellate-counsellor.com/newsletter/9802.htm
