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December 1998 
Vol. 4 No. 12 ISSN 1087-6219
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The California Supreme Court has upheld a defamation verdict against a tabloid newspaper that claimed the right to republish false assertions from a book about the Robert Kennedy assassination.
In June 1968, Khalid Iqbal Khawar was working as a photojournalist at the Ambassador Hotel on the night that Robert Kennedy was killed. He stood near Kennedy to photograph Kennedy, and to allow his friends to photograph him close to Kennedy. Twenty years letter Robert Morrow wrote a book, in which he claimed that the Iranian secret police and the Mafia had assassinated Kennedy. He identified the actual assassin as “Ali Ahmand.” The book included four photographs of the man identified as Ali Ahmand standing in a group around Kennedy at the Ambassador Hotel.
A weekly tabloid called the Globe published an article summarizing the allegations of the book. The article included an enlarged copy of one of the photographs. The Globe added an arrow that pointed to the man claimed to be Ali Ahmand. Khawar claimed that he was the man depicted in the photograph, that he did not assassinate Robert Kennedy, and that the appearance of the article provoked death threats and vandalism directed at him. A jury awarded him $1,175,000.
The Supreme Court determined that Khawar was a private figure. He did not seek out public attention in connection with the Kennedy assassination. Neither the assassination nor the publication of Morrow's book focused any substantial media attention on him. The Court then rejected the Globe's claim that it had a right to make a neutral report of the allegations in Morrow's book. There is no such privilege at common law, or under the constitution.
The Court did not decide whether there might be a neutral reportage privilege for statements about public figures. It also noted that a different analysis might apply to republication of defamation in the context of a book review.
Khawar v. Globe Int'l, Inc., 19 Cal. 4th 254 (1998).
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The Second District Court of Appeal in Los Angeles has rejected arguments by the State and the County that they were not vicariously liable for a judge's sexual misconduct. The misconduct was within the scope of the judge's employment.
Pifen Lo, her common-law husband, and another man were co-defendants in a criminal case assigned to Los Angeles Superior Court Judge George W. Trammel, III. Lo alleged that Trammel forced her to submit to sexual demands by using his position as the judge who was supervising her probation and deciding the sentences for her husband and the other co-defendant. Some of the contacts occurred in Trammel's chambers, some at his home during non-business hours.
In two recent decisions, the California Supreme Court ruled that sexual misconduct was outside the scope of employment. Farmers Ins. Group v. County of Santa Clara, 11 Cal. 4th 992 (1995) (sexual harassment of a co-worker); Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal. 4th 291 (1995) (sexual assault on a patient by a laboratory technician).
However, those cases did not overrule a 1991 case that involved an on-duty police officer. In Mary M. v. City of Los Angeles, 54 Cal. 3d 202 (1991), the officer stopped a driver for suspicion of drunk driving. Following the traffic stop, he drove her home, where he raped her. In holding the City vicariously liable, the Supreme Court emphasized the “unique position of trust in our society” held by police officers.
Trammel more closely resembled the Mary M police officer than the Farmers co-worker or the Lisa M technician:
“While the judge lacks the police officer's uniform, badge, and gun, as well as the ability personally to physically restrain, search, and use force against suspects, he wears a distinctive sign of authority (his robe), sits in an elevated position (his bench), and has the power to incarcerate defendants for, in [the husband]'s case, life. The judge has an armed, uniformed bailiff who can and will enforce the judge's orders using the same coercive, physical restraints as a police officer on the street.”
The Court of Appeal also rejected the government entities' argument that the at-home conduct was outside the scope of employment. All of the conduct flowed from his core judicial function of handling the case of a criminal defendant.
Lo v. Superior Court, 1998 WL 787313 (Cal. Ct. App. Nov. 13, 1998).
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The California Supreme Court has ruled that actual innocence is an element of a criminal defendant's cause of action for legal malpractice. If innocence were not an element of the claim, a guilty person might profit from his own wrong.
A jury convicted Kelvin Eugene Wiley of battery causing serious bodily injury to a former girlfriend. In a subsequent habeas corpus proceeding, the court determined that one witness had lied, and that an inadequate investigation by Wiley's Deputy Public Defender deprived him of exculpatory witnesses. The court set aside the conviction, and the prosecutor declined to retry the case.
Wiley then sued the Deputy Public Defender for legal malpractice. The trial court ruled that Wiley's innocence was not an issue. The jury awarded $162,500.
A civil malpractice plaintiff only needs to show that the attorney's negligence caused damage. Different considerations apply to malpractice claims arising out of criminal proceedings. The criminal defendant's own act remains the ultimate source of his predicament regardless of his attorney's subsequent negligence.
Further, the criminal defendant has other protections against malpractice. The burden of proof is more stringent. If the attorney is incompetent, post-conviction relief is available based on the Sixth Amendment right to effective assistance of counsel. That remedy is sufficient reparation, unless the criminal defendant can also show actual innocence.
Wiley v. County of San Diego, 1998 WL 804695 (Nov. 23, 1998).
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The Ventura division of the Second District Court of Appeal has ruled that a “diagnostic hysterectomy” is not a pregnancy-related medical condition protected by the pregnancy discrimination provisions of the Fair Employment and Housing Act.
Julie Williams was a part-time cashier for MacFrugal's. She was discharged after she underwent a diagnostic hysterectomy. She conceded that she was not pregnant, and that neither pregnancy nor childbirth was directly involved in the hysterectomy.
FEHA prohibits discrimination based on “pregnancy, childbirth, or related medical condition of any female employee.” Williams argued that the prohibition applied to any medical condition involving a woman's reproductive organs.
That construction was too broad. The court applied the rule of statutory construction known as ejusdem generis: If a general term follows a specific one, it should be understood to refer to matters related to the specific term. Therefore, the “medical condition” must be related to pregnancy or childbirth.
Williams argued that the hysterectomy was “related” to pregnancy because it prevented her from becoming pregnant. However, the statute's aim was to end discrimination against pregnant workers, not to stop pregnancy.
Williams v. MacFrugal's Bargains·Close-Outs, Inc., 67 Cal. App. 4th 479 (1998).
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The Ventura division of the Second District Court of Appeal has ruled that an arbitrator's findings in a grievance proceeding must be accorded preclusive effect in an employee's later lawsuit involving common law claims.
Vons acquired a trucking facility in Santa Maria when it purchased several Williams Brothers Markets, which had a collective bargaining agreement with Teamsters Union Local 381. Vons had an existing agreement with Teamsters Union Local 63. Vons agreed to assume the obligations in the agreement with Local 381. An arbitrator ruled that Local 63 was entitled to the work at the Santa Maria facility, and awarded its members backpay. Vons closed the facility, citing economic reasons unrelated to the arbitrator's ruling.
Local 381 protested the closing in an arbitration proceeding under its collective bargaining agreement. The arbitrator ruled that Vons had legitimate economic reasons for the closing. Local 63's victory in the prior arbitration was not the reason.
Several members of Local 381 then sued Vons for fraud and negligent misrepresentation. They alleged that Vons had not told them about the dispute with Local 63. The trial court granted summary judgment for Vons, because Local 381's arbitration proceeding had established that Vons closed the Santa Maria facility for economic reasons unrelated to the Local 63 dispute. Therefore, any alleged misrepresentations about the Local 63 could not have caused plaintiffs' damages.
So long as an arbitration has the usual elements of an adjudicatory proceeding, the normal rules of res judicata apply to the award. Restatement (Second) of Judgments § 84 (1982). In this case, there was a hearing with an opportunity to present evidence, and to cross-examine. The arbitrator issued a detailed written decision. There was no question that the plaintiffs had been in privity with Local 381.
The United States Supreme Court has refused to accord preclusive effect to labor arbitrations in some lawsuits involving federal statutory rights. See, e.g., Alexander v. Gardner Denver Co., 415 U.S. 36 (1974). Those cases, which are not binding on state courts interpreting state law, rest on the policies underlying the particular statutory schemes. No such policy prevents application of res judicata to common law claims.
Kelly v. Vons Companies, Inc., 1998 WL 805638 (Cal. Ct. App. Nov. 23, 1998).
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Berger v. Hanlon (December 1997 issue), cert. granted, 1998 WL 289355 (Nov. 9, 1998).
Carrisales v. Department of Corrections (September 1998 issue), review granted (Nov. 4, 1998). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Carter v. Holiday Ice Skating Ctr. (November 1998 issue), now reported at 67 Cal. App. 4th 246 (1998).
Condon v. McHenry (In re Estate of Condon) (September 1998 issue), review denied (Nov. 4, 1998).
Duffield v. Robertson Stephens & Co. (June 1998 issue), cert. denied, 1998 WL 467389 (Nov. 9, 1998).
Etter v. Veriflo Corp. (November 1998 issue), now reported at 67 Cal. App. 4th 457 (1998), modified on denial of rehearing (Nov. 16, 1998).
Green v. Ralee Eng'g Co. (October 1998 issue), rehearing denied (Oct. 21, 1998).
Johnson v. City of Loma Linda (October 1998 issue), petition for review filed (Oct. 23, 1998).
Monteiro v. Tempe Union High Sch. Dist. (November 1998 issue), now reported at 158 F.3d 1022 (9th Cir. 1998).
Moreland v. Las Vegas Metropolitan Police Dep't (October 1998 issue), amended (Nov. 24, 1998).
Sheppard v. Freeman (November 1998 issue), now reported at 67 Cal. App. 4th 339 (1998).
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