April 1998 Vol. 4 No. 4 ISSN 1087-6219
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In This Issue

• Boy Scouts not subject to California anti-discrimination law
• Court of Appeal hands down first published interpretation of Proposition 209
• Who is a supervisor under FEHA?
• Federal court has inherent power to impose sanctions for judge shopping
• When may court dismiss a juror for refusal to deliberate?
• UPDATES

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Boy Scouts not subject to California anti-discrimination law

The California Supreme Court has ruled that the Boy Scouts of America organization is not subject to the Unruh Civil Rights Act. In separate decisions, the court rejected claims by two Cub Scouts who refused to affirm a belief in God for religious reasons, and by a former Eagle Scout whose application for Scoutmaster was rejected because he was gay.

The Unruh Civil Rights Act prohibits discrimination on the basis of sex, race, color, religion, ancestry, national origin or disability in “all business establishments of every kind whatsoever.” Cal. Civ. Code § 51. In Isbister v. Boys' Club of Santa Cruz, Inc., 40 Cal. 3d 72 (1985), the court had applied the Act to a Boys' Club that offered its recreational facilities to all male local youths. In its most recent pronouncement, the court ruled that a private country club met the definition, because it offered its facilities to nonmembers on a regular basis for a fee. Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594 (1995). (The Warfield case was discussed in the August 1995 issue of Appellate Decisions Noted.)

This case was distinguishable because the Boy Scouts is “an expressive social organization whose primary function is the inculcation of values in its youth members, and whose small social-group structure and activities are not comparable to those of a traditional place of public accommodation or amusement.” Unlike the Boys' Club or the country club, the Boy Scouts did not sell access to their basic activities and services.

In separate concurring opinions, Justices Mosk, Werdegar and Brown took the majority to task for failing to lay down a coherent and comprehensive definition of “business establishment.” In Justice Werdegar's words, “a competent attorney in many foreseeable cases still would not be able to advise a client with a reasonable degree of certainty whether the act applies.”

Justice Kennard rested her concurring opinion on constitutional concerns. In her view, if the court had found the Boy Scouts' membership policies subject to the Unruh Act, the organization would have had a compelling argument that the Act violated its associational and free speech rights. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995).

Randall v. Orange County Council, Boy Scouts of America, No. S039161 (Cal. Sup. Ct. Mar. 23, 1998); Curran v. Mount Diablo Council of the Boy Scouts of America, No. S039738 (Cal. Sup. Ct. Mar. 32, 1998).

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Court of Appeal hands down first published interpretation of Proposition 209

The Third District Court of Appeal in Sacramento has become the first court to publish an interpretation of Proposition 209, the anti-affirmative action initiative. It disapproved a policy that allowed state agencies to consider minority and female applicants for employment even though they did not place as high on the civil service list as normally required.

State agencies must fill open positions from the three highest ranks on the relevant civil service list. The State Personnel Board had adopted regulations allowing state agencies to use “supplemental certification” to augment the list with members of underutilized groups who placed in lower ranks. A group was underutilized if there were fewer persons in the classification “than would reasonably be expected by their availability.”

A 1981 study of the Department of Fish and Game found severe underrepresentation of females, African Americans, Hispanics and the disabled in its workforce. The Department adopted a supplemental certification procedure to assure that at least three names from each group would appear on the certified civil service list. A white male and a Native American male sued for declaratory and injunctive relief. While the action was pending, the United States Supreme Court decided Richmond v. Croson Co., 488 U.S. 469 (1989), which generally prohibited minority preference plans absent strong evidence of past discrimination. In December 1989, the state dropped the supplemental certification procedure for the Department, but did not rescind the authorizing regulations. The trial court dismissed the action as moot, but the Court of Appeal reversed.

The action was not moot, because plaintiffs had a claim to equitable relief for violation of their rights, and because the Board had not withdrawn the supplemental certification regulations. Proposition 209 applied, even though the conduct that gave rise to the suit occurred several years before it was adopted, because courts apply current law in deciding claims like plaintiffs' for prospective relief. The Court of Appeal directed the trial court to fashion an equitable remedy. However, it noted that removal of those appointed from the underrepresented group (which plaintiffs had requested) would not be a proper remedy.

Kidd v. State of California, No. C009484 (Cal. Ct. App. Mar. 20, 1998).

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Who is a supervisor under FEHA?

The Second District Court of Appeal in Los Angeles has explained that, for purposes of the Fair Employment and Housing Act's (FEHA) prohibition on harassment, a supervisor is one who can “significantly affect” an employee's employment status. It ruled that an insurance sales manager who was the only manager at a branch office met the definition.

Justine Lai and Elvira Viernes worked as sales agents in Prudential Insurance Company's Alhambra office. They claimed that Chiman Dialani forced them to engage in sexual conduct with him. Dialani was the only manager at the Alhambra office. He could not hire, fire or promote any of the other employees in the office. However, he trained them, supervised and directed the performance of their duties, and recommended them for hiring, promotion, transfer and discharge.

FEHA makes an employer strictly liable for sexual harassment by a “supervisor,” but does not define the term. Cal. Gov't Code § 12940(h)(1); Fiol v. Doellstedt, 50 Cal. App. 4th 1318 (1996). This court ruled that a supervisor is one “who has been invested by the employer with sufficient authority in the employment workplace that he or she has sufficient actual or reasonably perceived power or control or direction in the work environment to significantly affect an employee's employment status.”

The court listed the following “objective criteria,” by which to determine whether a particular employee meets the definition: (1) What is the employee's job title? (2) Do his or her duties include responsibility to oversee, evaluate, orientate or train other employees? (3) Does he or she have the power to discipline or recommend discipline? (4) Can he or she significantly influence other employees' working conditions? (5) Does he or she have day to day supervision of the workplace?

Dialani met the definition, because his title was manager, he had responsibility for recruiting, training and supervising the sales agents, he determined when sales meetings were held, he controlled time off, he handed out paychecks, and he reported on the performance of the sales agents. Prudential also argued that FEHA did not impose strict liability, but rested on ordinary respondeat superior principles. However, FEHA's legislative history established that the Legislature intended to adopt the principles of guidelines adopted by the EEOC in 1980, which had imposed strict liability for supervisorial harassment.

Lai v. Prudential Ins. Co. of America, 1998 WL 117981 (Cal. Ct. App. Mar. 17, 1998).

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Federal court has inherent power to impose sanctions for judge-shopping

The Ninth Circuit has upheld a district court's authority to impose sanctions for judge-shopping. However, it reversed the dismissal of the offending parties' lawsuits, and directed the lower court to consider less drastic alternatives.

Several individuals were involved in a melee with the police in El Monte on the night of June 11-12, 1994. On June 12, 1995, they filed suit in federal district court alleging civil rights violations - the Hernandez action. On June 23, they received notice that the case had been assigned to Judge Manuel L. Real. On July 11, they filed substantially the same complaint in the Los Angeles County Superior Court - the Garza action. The defendants removed that case to federal court. It was assigned to Judge Real as a related case.

At a hearing to consider dismissal of both cases, plaintiffs' counsel explained that he had filed the second case in state court because “I get to pick my juries out there.” He said that he had initially filed in federal court, “because there are discovery advantages in being in Federal Court.” Judge Real dismissed both cases with prejudice based on “blatant judge shopping.”

The Ninth Circuit reversed. A district court has inherent power to dismiss an action for judge-shopping on its own motion. However, dismissal is a harsh penalty, to be imposed only in extreme circumstances. Before it imposes dismissal as a penalty, a district court must consider five factors: (1) the public's interest in expeditious resolution of litigation, (2) the court's need to manage its docket, (3) risk of prejudice to defendants, (4) the public policy favoring resolution on the merits, and (5) the availability of less drastic sanctions.

Here, only the first two factors weighed in favor of dismissal, and the District Court did not consider less drastic alternatives. Therefore, dismissal on the basis of judge-shopping was an abuse of discretion. However, the Garza case was properly dismissed based on the one-year statute of limitations. The Court of Appeals denied plaintiffs' request that the case be assigned to a difference district judge on remand. There had been no erroneous findings that Judge Real would have difficulty putting out of his mind. Reassignment was not required to preserve the appearance of justice, but would involve some waste and duplication of effort.

Hernandez v. City of El Monte, 1998 WL 86158 (9th Cir. Mar. 3, 1998).

When may court dismiss a juror for refusal to deliberate?

The First District Court of Appeal in San Francisco has upheld a jury verdict that followed the dismissal of the one juror who had been holding out for acquittal. The trial court had good cause to dismiss the juror for failure to deliberate.

During deliberations on a robbery charge, 11 jurors requested in writing that the trial court replace Juror No. 4 with an alternate. They complained that the juror was unwilling to evaluate the facts based on the law given. A later note complained that Juror No. 4 was unfairly sympathetic to the defendant. Fellow jurors opined that Juror No. 4 was unwilling to articulate an opinion so that the others could refute it, and that she added points to the jury instructions. They also said that she was reading a book during deliberations, and would not volunteer her thoughts.

Juror No. 4 said that she thought she had applied the instructions properly, but had simply come to a different conclusion. She also said that she did not want to return to deliberations because the other jurors had mistreated her.

The trial court replaced Juror No. 4 with an alternate under Penal Code section 1089. Section 1089 provides that a juror may be discharged if found for “good cause” to be “unable to perform his duty.” (A similar provision appears in Code of Civil Procedure section 233.) The Court of Appeal reviews such determinations for abuse of discretion. In this case, the evidence about Juror No. 4's state of mind was conflicting. However, there was sufficient evidence to support the trial court's conclusion that Juror No. 4 had abandoned her role as a juror. Therefore, it did not abuse its discretion.

People v. Metters, 1998 WL 102086 (Cal. Ct. App. Mar. 10, 1998).

UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Application Group, Inc. v. Hunter Group, Inc. (March 1998 issue), now reported at 72 Cal. Rptr. 2d 73 (Ct. App. 1998).

Barris v. County of Los Angeles (January 1998 issue), review granted (Mar. 18, 1998). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.

Bates v. Jones (January 1998 issue), cert. denied, 66 U.S.L.W. 3492 (Mar. 23, 1998).

Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court (February 1998 issue), modified (Feb. 25, 1998).

Cotran v. Rollins Hudig Hall Int'l (February 1998 issue), rehearing denied (Feb. 25, 1998).

Muller v. Automobile Club of Southern California (March 1998 issue), now reported at 61 Cal. App. 4th 431 (1998).

Wooden v. Raveling (March 1998 issue), now reported at 71 Cal. Rptr. 2d 891 (Ct. App. 1998).

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