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April 1999 
Vol. 5 No. 4 ISSN 1087-6219
Copyright and Trademark Notice | Disclaimer
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The Ninth Circuit has affirmed the dismissal of a trademark claim by a former singing group member's assignee. The court concluded that an original member who had been continuously associated with the group since its inception had a better claim.
Herb Reed founded The Platters singing group in 1953. Paul Robi joined the group in 1954 as a replacement for one of the original members. In 1956, all of The Platters attempted to assign their rights in the name to an entity called The Five Platters, Inc. That assignment was later ruled ineffective. Paul Robi left The Platters in 1965, following conviction on narcotics charges. In November 1988, he assigned his rights in The Platters name to his wife Martha Robi. Not long thereafter, he died. Since the assignment, Martha Robi has managed and presented a singing group called “The Platters.”
Martha Robi sued Herb Reed, asserting exclusive rights to “The Platters” name. Reed counterclaimed, asserting that he had the exclusive rights. The district court entered summary judgment for Reed, and the Ninth Circuit affirmed.
The rights to The Platters trademark were originally held collectively by all the members of the group. Since the 1956 assignment was ineffective, it did not affect ownership of the rights. However, Robi lost any rights he may have had when he left the group in 1965. Therefore, he had no rights to assign to his wife in 1988.
Reed's rights were superior to Martha Robi's for two reasons. First, he had remained involved with the original group, and was in a position to control the quality of its services. that made him a rightful claimant to the original rights. Second, he had begun asserting his individual right to The Platters name in the early 1980s. Martha Robi had not asserted her individual right until 1988. That gave him chronological priority.
Robi v. Reed, No. 97-16909 (9th Cir. Apr. 2, 1999).
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In a recent decision, the Ninth Circuit has explained the defenses available to employers for hostile environment claims in the wake of the Supreme Court's recent pronouncements on the applicable law.
Danielle Burrell worked as a cashier at Star Nursery. She alleged that the store manager sexually harassed her by making sexual references, by saying that he wished to take a trip to the mountains with her, and by making comments about her physical appearance. The district court granted summary judgment for Star Nursery on the ground that it did not have actual or constructive knowledge of the store manager's harassment. The Ninth Circuit reversed.
Title VII imposes liability on employers for claims of sexual harassment by co-workers only if management-level employees knew or should have known about the harassment. However, two recent decisions by the United States Supreme Court impose vicarious liability for claims of harassment by those with supervisory authority, overturning previous Ninth Circuit precedent. See Burlington Indus. v. Ellerth, 118 S.Ct. 2257 (1998); Faragher v. Boca Raton, 118 S.Ct. 2275 (1998).
An affirmative defense is available if the harassment does not culminate in a tangible employment action, such as discharge, demotion or undesirable reassignment. To establish the defense, the employer must prove (1) that it exercised reasonable care to prevent and correct any harassing behavior, and (2) that the plaintiff employee failed to take advantage of the preventive and corrective measures established by the employer.
The district court did not consider the new standard established by the Supreme Court. Therefore, the Ninth Circuit remanded to allow the parties to address the elements of the new standard.
Burrell v. Star Nursery, Inc., 1999 WL 160796 (9th Cir. Mar. 25, 1999).
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The First District Court of Appeal in San Francisco has ruled that the workers' compensation remedy preempts a wrongful death claim against the decedent's employer, even if the death resulted from allegedly criminal acts.
Ray Vuillemainroy was killed in a workplace accident when the brakes failed on a heavily loaded truck, as he was driving down a steep haul road. His representatives sued the employer for wrongful death. Plaintiffs alleged that the employer's conduct amounted to involuntary manslaughter. According to their complaint, the employer's trucks and haul roads were chronically and deliberately left unmaintained and unsafe. The Court of Appeal affirmed summary judgment for the employer.
As a general rule, the Workers' Compensation Act provides the exclusive remedy against an employer for injury or death of an employee. Cal. Lab. Code § 3600. The remedy is exclusive even where the employer's misconduct is serious, willful or intentional. For such conduct, the Act increases the employee's recovery by one-half. Cal. Lab. Code § 4553.
The California Supreme Court has by decision established certain exceptions to Workers' Compensation Act exclusivity, where the alleged conduct “could not be considered a normal risk of employment or is contrary to fundamental public policy.” See Fermino v. Fedco, Inc., 7 Cal. 4th 701 (1994) (exclusivity did not bar claim for false imprisonment).
However, allegations of criminal conduct alone are not sufficient to invoke the exception to exclusivity. The reach of the Fermino decision extended only to “those classes of intentional employer crimes against the employee's person by means of violence and coercion.” Criminal violations arising out of health and safety regulations do not come within the exception. A long line of decisions has recognized that workers' compensation exclusivity bars claims based on unsafe working conditions, even if the employer acted recklessly or deliberately. See, e.g., Up-right, Inc. v. Van Erickson, 5 Cal. App. 4th 579 (1992).
The court concluded: “Indeed, to accept plaintiffs' position that a death caused by an employer's criminal negligence is beyond the compensation bargain would invite the wholesale labeling of workplace fatalities as manslaughters to circumvent the workers' compensation system. Even while fashioning limited exceptions to the rule of exclusivity, the Supreme Court has consistently cautioned against opening such a Pandora's Box.”
Vuillemainroy v. American Rock & Asphalt, Inc., 1999 WL 164147 (Cal. Ct. App. Mar. 26, 1999).
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The Second District Court of Appeal in Los Angeles has determined that the ethical rules require an attorney to return obviously privileged documents that are inadvertently produced. However, it overturned an award of sanctions for failure to return such documents, because there had been no established California law on the subject.
By mistake, the State Compensation Insurance Fund included 273 pages of litigation claims summary forms in a document production of 7,000 pages. The heading at the top of each form read: “ATTORNEY-CLIENT COMMUNICATION/ATTORNEY WORK PRODUCT.” When State Fund discovered the mistake, it asked Adam Telanoff, the attorney who received the production, to return the forms. He refused to do so. The trial court ordered the documents returned, and awarded $6,070 in sanctions against Telanoff and his law firm. The Court of Appeal reversed the sanctions award.
The claim forms remained privileged despite production in response to a discovery request. To establish a waiver, the opponent of the privilege would have to prove an intent to relinquish voluntarily a known right. Inadvertent disclosure by a party's attorney during discovery does not constitute a waiver.
The Court of Appeal drew upon ABA Formal Opinion No. 92-368 to formulate the following rule: “When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified. We do, however, hold that whenever a lawyer ascertains that he or she may have privileged attorney-client material that was inadvertently provided by another, that lawyer must notify the party entitled to the privilege of that fact.”
State Compensation Ins. Fund v. WPS, Inc., 70 Cal. App. 4th 644 (1999).
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The San Diego division of the Fourth District Court of Appeal has ruled that there can be no equitable tolling of the statute of limitations for legal malpractice actions set forth in Code of Civil Procedure section 340.6.
The doctrine of equitable tolling applies where a plaintiff who possesses several legal remedies “reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage.” Addison v. State of California, 21 Cal. 3d 313 (1978).
Section 340.6 provides: “In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist.” In Laird v. Blacker, 2 Cal. 4th 606 (1992), the Supreme Court interpreted that provision as expressing the Legislature's intention “to disallow tolling under any circumstances not enumerated in the statute.” Therefore, equitable tolling was not available.
Gordon v. Law Offices of Aguirre & Meyer, 83 Cal. Rptr. 2d 119 (Ct. App. 1999).
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Subsequent treatment of decisions reported on in earlier issues:
Adams v. City of Fremont (January 1999 issue), time for grant or denial of review extended to Apr. 12, 1999.
Barris v. County of Los Angeles (January 1998 issue), affirmed (Mar. 25, 1999).
Comedy III Prods., Inc. v. Gary Saderup, Inc. (January 1999 issue), review granted (Mar. 17, 1999). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Drain v. Betz Laboratories, Inc. (March 1999 issue), petition for review filed (Mar. 15, 1999).
Gonzalez v. Hughes Aircraft Employees Federal Credit Union (March 1999 issue), now reported at 70 Cal. App. 4th 468 (1999).
Khawar v. Globe Int'l, Inc. (December 1998 issue), petition for certiorari filed (Mar. 17, 1999).
Lee v. Technology Integration Group (March 1999 issue), now reported at 69 Cal. App. 4th 1549 (1999).
Lilley v. Elk Grove Unified Sch. Dist. (January 1999 issue), review denied (Mar. 17, 1999).
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