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September 1999 
Vol. 5 No. 9 ISSN 1087-6219
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The California Supreme Court has ruled that a finding of past unlawful racial harassment may provide a basis for enjoining future racial epithets in the workplace. Such an injunction is not an unconstitutional prior restraint.
Seventeen Latino employees sued Avis and several individual defendants for racial discrimination and harassment under the Fair Employment and Housing Act. They alleged that the service manager at San Francisco International Airport called them derogatory names, and demeaned them on the basis of their race, national origin and lack of English language skills. The jury found that all the plaintiffs had been subjected to harassment, and awarded damages.
After the jury verdict the trial court found a substantial likelihood that the verbal harassment would continue, and enjoined the service manager from continuing his conduct. It enjoined Avis from allowing the service manager to commit the enjoined acts, and required Avis to distribute certain notices. The Court of Appeal upheld the constitutionality of an injunction, but directed the trial court to specify the particular words that were prohibited.
A three-justice plurality upheld the Court of Appeal's ruling. There is no question that courts may impose civil liability after the fact for violations of the employment discrimination laws. The First Amendment hostility toward prior restraints is not absolute. The United States Supreme Court has upheld restraints that follow a judicial determination that a specific pattern of speech is unlawful.
Justice Werdegar concurred, opining that the injunction was supportable, because it was limited to speech in the workplace where employees were a captive audience, and because it was a reasonable time, place and manner restriction. Justices Mosk, Kennard and Brown dissented on the ground that the injunction, even as limited by the Court of Appeal, violated the First Amendment.
Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121 (1999).
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The California Supreme Court has ruled that California's limits on recovery by a decedent's survivors do not offend the policies of federal civil rights law. The ruling came in response to a petition for review filed by Gutierrez, Preciado & House.
Patricia Cordova sued the Los Angeles County Sheriff's Department and others, alleging that she was subjected to sexual harassment by fellow deputy sheriffs and supervisors. She asserted several state law claims, and a federal claim under 42 U.S.C. section 1983. She died in a car accident while the action was pending.
Under California law, a decedent's survivors may pursue any action that was pending at the decedent's death. Code of Civil Procedure section 377.34 limits economic damages to those incurred before death, and bars any recovery for emotional distress damages.
The federal civil rights laws do not provide a rule for the survival of claims. State courts may apply their own rules when entertaining federal civil rights claims unless those rules would produce a different ultimate outcome than would obtain in federal court. 42 U.S.C. section 1988 directs the federal courts to look to state law where federal law is insufficient. However, they should not do so if the state law is inconsistent with the policies underlying the federal civil rights law.
The policies of section 1983 are to compensate those who suffered injury from the deprivation of their federal rights and to deter future wrongdoing. California's limits on the damages recoverable by survivors do not offend those policies. Where the plaintiff has died there is no way to compensate her for her injuries. The deterrence goal is served by the availability of punitive damages against individual section 1983 defendants, and by the prospect of substantial emotional distress damages in future cases.
Therefore, section 1988 would require a federal court to apply California's limits. Hence, the state courts are also free to do so. The Court declined to rule on whether the limitation would apply, if the civil rights violation caused the plaintiff's death.
County of Los Angeles v. Superior Court (Schonert), 1999 WL 604529 (Cal. Sup. Ct. Aug. 12, 1999).
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The Second District Court of Appeal in Los Angeles has invoked recent United States Supreme Court decisions in overturning a jury verdict in an Americans with Disabilities Act (ADA) case. The plaintiff did not prove that the defendant regarded him as having an impairment that substantially limited a major life activity.
James Real was a police officer for the Compton Police Department. He suffered injuries to his knee that left him with constant minimal-to-slight pain. An agreed medical examiner in his workers' compensation proceeding concluded that he should refrain from prolonged activities that might aggravate the pain. Compton's police chief concluded that those work restrictions precluded Real from working as a police officer for the City. City officials identified two openings in other departments, but Real was not qualified for them.
The ADA prohibits discrimination against qualified individuals with a disability. An individual has a disability if he or she has an impairment that substantially limits a major life activity, or if the individual is regarded as having such an impairment. The jury in Real's ADA lawsuit found that he was not disabled, but that the Compton Police Department regarded him as disabled. It awarded $700,000 in economic damages and $700,000 in emotional distress damages.
The Court of Appeal reversed the verdict, because there was no evidence that City officials regarded Real as having an impairment covered by the ADA. At best, the evidence showed that Real was regarded as being unfit to serve as a Compton police officer.
However, to establish substantial limitation on the major life activity of working, Real had to prove that he was regarded as precluded from a broad class of jobs, such as the law enforcement field in general. Sutton v. United Air Lines, 119 S.Ct. 2139 (1999); Murphy v. United Parcel Service, Inc., 119 S.Ct. 2133 (1999). His evidence only established that the police department regarded him as precluded from one particular job.
Real v. City of Compton, 1999 WL 592670 (Cal. Ct. App. Aug. 9, 1999).
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The First District Court of Appeal in San Francisco has ruled that a plaintiff exposed to asbestos may recover lost economic damages for the period of his shortened life expectancy. There is no deduction for the personal expenses that would have been incurred had the plaintiff's life expectancy not been shortened.
Robert Overly worked for Westinghouse as a field service engineer. He supervised installation of equipment on ships in shipyards. During a two-year period in the 1960's Overly spent a substantial period of time at the Ingalls Shipbuilding shipyard, where he was exposed to asbestos dust. He eventually developed mesothelioma, an incurable, fatal disease. The jury awarded him future economic benefits for his projected lifespan undiminished by the effects of the asbestos dust.
Ingalls argued that the economic damages for the years lost due to shortened life expectancy had not yet accrued, and would not accrue until Overly died. At that point, Overly's heirs could recover the damages as loss of support in a wrongful death action.
The court rejected the argument. The prevailing American rule is that a tort victim may base his recovery on his prospective earnings for the balance of his life expectancy undiminished by any shortening of that expectancy as a result of the injury. Any potential for a double recovery later by the heirs could be eliminated by a setoff in the wrongful death action.
Ingalls also argued that any award for future economic loss should be reduced by the personal expenses that Overly would have incurred, if his life expectancy had not been shortened. The court also rejected that argument. It would introduce undesirable elements of speculation and uncertainty into an already difficult calculation.
Overly v. Ingalls Shipbuilding, Inc., 1999 WL 605668 (Cal. Ct. App. Aug. 12, 1999).
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The Sixth District Court of Appeal in San Jose has ruled that the Brown Act does not authorize discovery into the personal recollections of city council members who participated in a closed session that is the subject of a court challenge.
The Mountain View City Council went into closed session to discuss a lease of City property to the Mountain View Chamber of Commerce. The city council did not take any action during the session. The session was not taped, and no minutes were taken.
Gary Wesley filed a lawsuit alleging that the closed session violated the Ralph M. Brown Act, which was enacted to ensure public access to official proceedings. The lawsuit named each council member as a defendant.
Wesley propounded interrogatories, which asked the council members to describe the discussions at the closed session. After the council members objected to the questions, the trial court granted Wesley's motion to require the council members to provide responses. The Court of Appeal granted a peremptory writ that directed the trial court to deny Wesley's motion.
The Brown Act provides that local legislative bodies may keep minutes of closed sessions, and that those minutes are confidential. The court may require in camera review of the minutes in an action alleging a Brown Act violation. The Act also provides for court-ordered taping of sessions if a Brown Act violation is adjudicated. It does not expressly provide that the proceedings themselves are confidential.
The Court of Appeal ruled that the Act provided the only means for obtaining disclosure of closed session proceedings. If the legislature had intended to allow disclosure in other ways, it would have enacted an express provision. Courts lack authority to require local legislators to provide their own accounts of the proceedings.
Kleitman v. Superior Court, 1999 WL 624561 (Cal. Ct. App. Aug. 18, 1999).
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Subsequent treatment of decisions reported on in earlier issues:
Amos v. Alpha Property Management (August 1999 issue), now reported at 73 Cal. App. 4th 895 (1999).
Daily Journal Corp. v. Superior Court (August 1999 issue), now reported at 20 Cal. 4th 1117 (1999).
Delgado v. American Multi-Cinema, Inc. (July 1999 issue), petition for review filed (Jul. 28, 1999).
Hollister v. Benzl (May 1999 issue), review denied (Jul. 28, 1999).
Marich v. QRZ Media, Inc. (August 1999 issue), petition for review filed (Aug. 11, 1999).
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (August 1999 issue), now reported at 20 Cal. 4th 1178 (1999).
Recording Indus. Ass'n of America v. Diamond Multimedia Sys. Inc. (July 1999 issue), now reported at 180 F.3d 1072 (9th Cir. 1999).
Zelig v. County of Los Angeles (August 1999 issue), now reported at 73 Cal. App. 4th 741 (1999), modified on denial of rehearing (Aug. 13, 1999).
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