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September 1998 
Vol. 4 No. 9 ISSN 1087-6219
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The Ninth Circuit has affirmed a lower court order that granted CBS and two newspapers access to Ted Kaczynski's sealed psychiatric competency report. The common law right to inspect and copy judicial records and documents outweighed Kaczynski's privacy interests.
After the jury was selected at his trial, Kaczynski asked to represent himself, because he disagreed with his lawyer's plan to present a mental illness defense. Concerned about his competency, the district court ordered Kaczynski to undergo a psychiatric examination to determine if he was mentally competent to stand trial. A Bureau of Prisons psychiatrist examined Kaczynski, interviewed his mother and brother, and filed a 47-page report under seal with the court. The district court determined that he could stand trial, but denied his motion to represent himself as untimely. Kaczynski then pleaded guilty to the Unabomber crimes.
The Sacramento Bee, the San Francisco Examiner and CBS moved for disclosure of the psychiatric report in order to inform the public about the district court's competency determination and Kaczynski's motivation for committing the crimes. The district court ordered the report released, after redacting some information about third parties, and some information about Kaczynski that did not relate to his competency or motivation.
The common law right of access requires a threshold showing of a legitimate need for disclosure, which was satisfied by the media's application in this case. Then the court must balance the public's legitimate interest in obtaining information about the workings of the criminal justice system against Kaczynski's privacy interest. In light of its redaction of information not directly related to the public's legitimate interest, the district court did not abuse its discretion in granting the motion.
United States v. Kaczynski, 1998 WL 510393 (9th Cir. Aug. 20, 1998).
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The California Supreme Court has disapproved a line of Court of Appeal cases extending back to 1982, which had held that the Workers' Compensation Act preempted state statutory and common law remedies for disability discrimination. Employees who are discharged because of a work-related disability may sue for violation of the Fair Employment and Housing Act, and for wrongful termination in violation of public policy.
In Judson Steel Corp. v. Workers' Comp. Appeals Bd., 22 Cal. 3d 658 (1978), the Supreme Court ruled that section 132a of the Labor Code provided a workers' compensation remedy for workers who suffered discrimination as a result of a work-related injury. Several Court of Appeal decisions concluded that the Judson Steel remedy was the exclusive remedy for disability discrimination under California law. See, e.g., Angell v. Peterson Tractor, Inc., 21 Cal. App. 4th 981(1994); Pickrel v. General Telephone Co., 205 Cal. App. 3d 1058 (1988).
The Courts of Appeal got it wrong. The exclusivity provisions of the Workers' Compensation Act do not refer to the division of the Act that contains section 132a. Further, the workers' compensation “bargain” does not include conduct covered by section 132a. Disability discrimination is just as contrary to public policy as sexual or racial discrimination, both of which have been held to fall outside the bargain.
Disability discrimination may also form the basis for a wrongful termination claim under Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167 (1980). The state policy against disability discrimination is a substantial and fundamental one that was well established under several statutes when the complaint in the present action was filed.
City of Moorpark v. Superior Court, 77 Cal. Rptr. 2d 445 (1998).
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The First District Court of Appeal in San Francisco has ruled that a Colorado attorney may recover fees in a California probate proceeding for advice to the Colorado executor of a California estate. His actions did not constitute the practice of law in California under Business and Professions Code section 6125.
In Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal. 4th 119 (1998) (discussed in the February 1998 issue of Appellate Decisions Noted), the Supreme Court refused to allow a New York law firm to recover its legal fees for work done for a California client on a California-based matter. It said that California had an interest in protecting its residents from attorneys who had not been certified to practice in California.
This case was different. A Colorado resident sought out a Colorado attorney for legal advice. California cannot require residents of other states to retain a California attorney every time they need advice about California law. Different considerations would apply if the Colorado attorney had entered California to participate in the probate proceeding. However, the executor retained a California firm to file papers and make all appearances.
Condon v. McHenry (In re Estate of Condon), 65 Cal. App. 4th 1138 (1998).
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The Ninth Circuit has ruled that an employer may not force an employee to arbitrate Americans with Disability Act claims based on an arbitration clause buried in a handbook. There was no evidence that the employer specifically called the employee's attention to the clause.
A week after William Kummetz went to work for Tech Mold, he received an “Employment Information Booklet,” and signed a separate acknowledgment that he had read the booklet and agreed to its terms. The district court entered summary judgment dismissing his disability discrimination lawsuit based on the arbitration clause, but the Ninth Circuit reversed.
Under the ADA, any agreement to arbitrate must be knowing. For an agreement to be knowing, the employer must explicitly present a choice to the employee, who must explicitly agree to waive the specific right in question.
In this case, the acknowledgment that Kummetz signed did not mention the arbitration clause. If he had signed the page of the handbook that contained the arbitration clause, the clause probably would have been enforceable.
Kummetz v. Tech Mold, Inc., 1998 WL 480900 (9th Cir. Aug. 18, 1998).
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The San Bernardino division of the Fourth District Court of Appeal has ruled that a non-supervisor is not personally liable for harassment under the Fair Employment and Housing Act (FEHA). It also agreed with the decision in Fiol v. Doellstedt, 50 Cal. App. 4th 1318 (1996) (discussed in the December 1996 issue of Appellate Decisions Noted) that a non-harassing supervisor is not liable under FEHA.
Maryann Carrisales claimed that co-worker Dave Selkirk sexually harassed her, and that two supervisors failed to take immediate and appropriate corrective action. There was a factual issue as to whether Carrisales's employer was liable under FEHA for responding inadequately. However, under Fiol, the supervisors were not liable, as a matter of law.
There was no claim against Selkirk. FEHA prohibits “any person” from harassing “an employee or applicant.” That requires an employment relationship between the harasser and the harassee. As to Selkirk, Carrisales was not an employee. The result is consistent with federal decisions under Title VII. See, e.g., Miller v. Maxwell's Int'l, Inc., 991 F.2d 583 (9th Cir. 1993), cert. denied, 510 U.S. 1109 (1994).
Carrisales v. Department of Corrections, 77 Cal. Rptr. 2d (Ct. App. 1998).
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The California Supreme Court has overturned the dismissal of a lawsuit for unlawful refusal to issue title insurance for property bought at tax sales. The Insurance Code does not displace other state laws that might outlaw the practice.
Several companies that purchased tax sale properties in El Dorado County claimed that they could not get title insurance for their properties. They alleged that the only title companies writing insurance in the county unlawfully conspired to refuse insurance for tax sale properties.
First American Title, the sole remaining defendant, asserted that the Insurance Code provisions governing title companies barred plaintiffs' claims. However, the exclusivity provisions related only to rate-making activities, and exemption from local regulation. There was no general exemption from other state laws. Therefore, plaintiffs had three viable claims:
The alleged conspiracy could establish an antitrust claim under the Cartwright Act. The implication of plaintiffs' allegations was that the conspiracy was preventing one or more of the conspirators from writing the policies.
There was also a viable deceptive advertising claim. Plaintiffs alleged that the conspirators had marketed title insurance as necessary and represented that they would insure all real estate that had good title. If the conspiracy allegations were true, those statements were deceptive.
Finally, plaintiffs also had a possible claim for intentional interference with existing contractual relations. A claim for interference with prospective economic advantage requires proof of some wrongful act other than the interference. Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376 (1995) (discussed in the November 1995 issue of Appellate Decisions Noted). However, intentionally inducing breach of an existing contract is a wrong in itself.
There was no basis for a negligence claim. Negligence law does not impose a general duty to avoid business decisions that may affect the financial interests of third parties.
Quelimane Co. v. Stewart Title Guar. Co., 1998 WL 540890 (Cal. Aug. 27, 1998).
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Subsequent treatment of decisions reported on in earlier issues:
Artiglio v. Corning Inc. (August 1998 issue), now reported at 18 Cal. 4th 604 (1998).
Beyda v. City of Los Angeles (August 1998 issue), now reported at 65 Cal. App. 4th 511 (1998).
City of Moorpark v. Superior Court (October 1996 issue), superseded by 77 Cal. Rptr. 2d 445 (Sup. Ct. 1998).
Delew v. Wagner (June 1998 issue), petition for certiorari filed (Aug. 10, 1998).
Duffield v. Robertson Stephens & Co. (June 1998 issue), now reported at 144 F.3d 1182 (9th Cir. 1998), petition for certiorari filed (Aug. 4, 1998).
Murillo v. Fleetwood Enterprises, Inc. (June 1998 issue), rehearing denied (Jul. 8, 1998).
Ortega v. O'Connor (August 1998 issue), now reported at 146 F.3d 1149 (9th Cir. 1998).
Quelimane Co. v. Stewart Title Guaranty Co. (July 1996 issue), superseded by 1998 WL 540890 (Cal. Sup. Ct. Aug. 27, 1998).
Robison v. Six Flags Theme Parks Inc. (July 1998 issue), petition for review filed (Jul. 27, 1998).
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