My Published Decisions

Haluck v. Ricoh Electronics, Inc., 151 Cal.App.4th 994, 60 Cal.Rptr.3d 542 (2007)

Nelson v. Carlson, 17 Cal. App. 4th 732; 21 Cal. Rptr. 2d 485 (1993)

Pomona College v. Superior Ct of Los Angeles; Corin, 45 Cal.App.4th 1716 (1996)

Vazquez v. Cargill, Inc., 509 F.Supp.2d 903 (2007)

My Non-Published Decisions

Susan Duffy vs. Trustees of the California State University, Super. Ct. No. NCO21275 (2000)

Case Law References

EMPLOYMENT

Brinker UPdate

Brinker Restaurant Corp. v. Superior Court, (April 12, 2012), ___ Cal.4th ___. (SC S166350) - employers need only provide, but not ensure breaks are taken.

The California Supreme issued its long awaited decision in “Brinker”, which clarifies the law on meal and rest breaks and class actions. The Court upheld an employer’s right NOT to make an employee take a break; confirmed employer's obligation to provide break time, and upheld in part the class certification: Brinker Restaurant Corp. v. Super. Ct. (SC S1663504/12/12) Wage and Hour.

Download Brinker court decision

Accardi v Sup Ct of Ventura, 17 CA 4th 341, 21 Cal.Rptr. 2nd 292 (2nd DCA 1993) - E.D. from sex harassment not preempted by workers' comp.; cont'g viols; Context matters.

Avila v Continental Airlines, 165 CA 4th 1237-CFRA(2008) -Knowledge of protected conduct req’d; E’er charged w/knowledge upon submission of CFRA req.;E’ee protected from retal.

Barnett v U.S. Air, Inc., 228 F. 3d 1105 (9th Cir. 2000) - Disabilities (ADA), mandatory duty to engage in interactive process, and providing of reasonable accommodations.

Bihun v At&T Information Systems, Inc., 13 Cal. App. 4th 976 (1993) - court allowed evidence of harasser's conduct toward other women ("me too").

Britt v Sup. Ct., 20 Cal.3d 824 (1978) - privacy protections, balancing test. Cicairos v. Summit Logistics, Inc., 133 Cal. APP. 4th 949 35 Cal. Rptr. 3d 243 (2005)- Employer burden to provide break.

Cotran v. Rollins Hudig Hall, 17 C4th 93, 69 CR2d 900 (1998) - good faith investigation.

Crab Addison, Inc. v. Super. Ct., 169 CA 4th 958, 87 CR 3d 400 (2008) - W&H class action, discovery allowed of member identity and contact information.

Dukes v. Wal-Mart, 603 F.3d 571 (9th Cir. 2010) - Largest gender discrimination class action in history; Rule 23 Class action practice clarified.

Ellison v Brady, 924 F. 2nd 872 (9th Cir 1991) - in evaluating sexual harassment claims, focus on victim's perspective.

Faust v Calif.Portland Cement Co., 150 CA 4th 864 - CFRA (2007) - Employer aware once employee submits request for CFRA leave, employee protected from retaliation.

Fisher v San Pedro Peninsula, 214 CA 3d 590, 262 CR 2d 842 (1989) - "Reasonable woman" standard, hostile work environment.

Foley v. InteractiveData Corp., 47 Cal.3d 654, 254 CR 211 (1988) - implied contract law.

Gantt v Sentry Insurance, 1 Cal.4th 1083-WTVP(1992) - WTVPP not preempted by WCA.

Guz v Bechtel, 24 Cal. 4th 317(2000) - Age discrimination case re RIF, rebuttable

presumptions, range of age gap.

Harris v Forklift, 114 S. Ct. 367 (1993) - sex harassment, reasonable person, severe or pervasive.

Hernandez v Hillsides, Inc., 47 Cal. 4th 272 (2009) - workplace privacy - hidden

surveillance cameras in office was legitimate.

Hope v Cal Youth Authority, 134 CA 4th 577 (2005) - damages, mitigation, burdens of proof.

Humphrey v Memorial Hospital Assn., 239 F.3d 1128 (9th Cir. 2001) - disabilities, duty to engage in interactive process and provide reasonable accommodations.

Johnson v United Cerebral Palsy, 173 CA 4th 740 (2009) - discrimination, effects of timing on inferences, prior discrimination claims against manager admissible.

Kotla v The Regents of the Univ of Cal, 115 CA 4th 283 (2004) - scope of expert witness testimony permitted; expert witness excluded.

Lyle v Warner Bros. TV Prod., 38 Cal. 4th 264 (2006) - sex harassment, "Friends" case.

Martinez v Combs, 49 Cal. 4th 35, 109 Cal. Rptr. 3d 514-W&H-CSC (2010) - defined

employer under LC & IWC.

McDonnell Douglas v. Green, 411 U.S. 792 (1973) - Seminal discrim. case, burden shifting.

Mogilefsky v. Superior Court, 20 Cal App. 4th 1409 (1993) - same sex harassment actionable.

Nacht v Lewis Architects, Inc. v Sup.Ct, 47 CA 4th 214, 54 CR 2d- 575 (1996) -

disclosure of witness interviews, declarations, attorney work product privilege.

Nazir v. United Airlines, 178 Cal.App. 4th 243 (2009) - abusive MSJ practices.

City of Ontario v Quon, USSC (2010)- Review of police officer’s text messages sent on

employer-issued pager did not violate his Fourth Amendment rights.

Reeves v Safeway Stores Inc., 121 CA 4th 95 (2004) - MSJ, sep. stmts.; cat's paw theory.

Reid v Google SC S158965 (2010) - stray remarks under federal proc’s N/A to state court.

Richards v CH2M Hill, Inc., 26 Cal. 4th 798, 111 CR 2d 87 (2001) - cont'g violations.

Rico v Mitsubishi Motors Corp., 42 Cal. 4th 807, 68 Cal. Rptr. 3d 758 (2007) - inadvertent disclosure of work product privileged documents.

Roby v McKesson, 101 Cal.Rptr.3d 773 (2009) - Harassment claim supported by evidence of personnel actions; Punitive damages reduced to 1:1 ratio.

Silva v. Lucky Stores Inc., 65 Cal.App. 4th 256 (1998) - Investigation adequate where employer took complaints seriously. “Me too” evidence relevant to employer notice.

Turner v Anheuser Busch, 7 Cal. 4th 1238 (1994) - Seminal constructive discharge case.

Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128 [74 Cal.Rptr.2d 510 (1998) - Sx har., E’er duty to take reas. steps prevent; “me too” evid.

Yanowitz v L'Oreal USA,Inc., 36 Cal. 4th 1028 (2005) - adverse employment actions.

Cuilette v. City of Los Angeles, 2011 Cal. App. LEXIS 477 (2011) - Employee injured on the job, was allowed to return to work with doctor’s release allowing permanent light duty, then terminated when the Employer City learned he was given a “100% disabled” worker’s compensation rating. Plaintiff sued for disability discrimination and failure to accommodate in violation of FEHA. The trial court granted summary judgment for City, which was reversed on appeal. Plaintiff then won a $1.57 million jury verdict at trial, leading to another appeal, retrial (though damages finding remained). City again held liable for not proving it had a legitimate nondiscriminatory basis for terminating plaintiff’s employment. On this 3d appeal, because the City had many light-duty assignments, the proper inquiry was whether plaintiff could perform the essential functions of the light-duty assignment; plaintiff proved he could, defendant failed to ask. City held to have violated FEHA and failed to reasonably accommodate.

Wills v. Superior Court, 194 Cal. App. 4th 312 (2011) - Employee of OCSC suffered from bipolar disorder, a mental disability. After several incidents of verbal outbursts and emails from plaintiff involving threats of violence against coworkers, OCSC terminated plaintiff. Plaintiff sued alleging disability discrimination, failure to engage and failure to accommodate among others. Summary judgment was granted on 2 grounds, including failure to exhaust administrative remedies, and the threats of violence. The Court of Appeal acknowledged her mental disability, but held the FEHA authorized “an employer to distinguish between disability-caused misconduct and the disability itself in the narrow context of threats or violence against coworkers." Affirmed.

EMPLOYMENT.. Wage & Hour

Home Depot U.S.A. Inc. v. Sup. Ct. (Harris), 191 Cal. App. 4th 210 (2nd Dist. 2010) - (“Seating” case): Court upheld employees’ right to pursue civil penalties under PAGA for violations of IWC Wage orders; further that Wage Order 7-2001 requires retail employers to provide employees with “suitable seats” when appropriate.

Pineda v. Bank of America, 50 Cal.4th 1389 (2010) - CSC held that Labor Code 203 - waiting time penalties may not be recovered in a UCL cause of action; thus 4 year statute of lims does not apply; 3 year SOL applies to LC 203 claims.

UPS Inc. v. Sup. Ct. (Allen), 121 Cal. Rptr. 3d 765 (2/16/2011); reh. granted 3/16/11 - Holding consistent with Marlo v. UPS, 2009 U.S. Dist. LEXIS 41948 (C.D.Cal 2009), that employees can recover 2 hours of pay per day for employer missing both meal and rest periods in same day.

DISCOVERY

Deyo v. Kilbourne, 84 Cal. App. 3d 771 (1978) - Interrogatory primer.

Rifkind v. Superior Ct., 22 Cal. App. 4th 1255 (1994) - seminal case on what are/are not proper deposition questions.

Tylo v Superior Ct., 55 Cal. App. 4th 1379-ED (1997) - discovery (med records), depos. "... the rules of discovery do not allow unrestricted access to all species of information."

ARBITRATION

Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83, 99 Cal. Rptr. 2d 745 (2000) - FEHA claims mandatory arbitration agreements subject to min. requirements.

Burlage v. Superior Ct, 178 Cal. App. 4th 524, 100 Cal. Rptr.3d 531(2009) - Arb. Award vacated due to Arbitrator decision to exclude evidence, "more than mere erroneous evidentiary ruling".

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S. Ct. 1302, 249 L. Ed. 2d 234, (2001) - USSC held Empl.cases subj.to mand. arb agreements under FAA, w/lims.

Stolt-Nielsen v AnimalFeeds Int'l, 130 S. Ct. 1758 (USSC 2010) - Arbitrator has no discretion to impose arbitration in class action where agreement is silent on class actions.

Ting v. AT&T, 319 F.3d 1126 (2003) & Acorn v. Household Int'l Inc., 211 F. Supp. 2d 1160 (2002) - Arbitration proceeding secrecy orders held unconscionable.

ARBITRATION / CLASS ACTIONS

AT&T Mobility LLC v. Concepcion, 2011 U.S. LEXIS 3367 (U.S. 4/27/2011) - In a cell phone service consumer case, being afforded wide sweeping application, the USSC held that an arbitration agreement with a class-action waiver, cannot be denied enforcement.

Dukes v. Wal-Mart Stores, Inc., 564 U.S. ____ (2011) - Gender Discrimination class action on behalf of female employees of Wal-Mart was certified by the District Court, substantially affirmed by the U.S. Court of Appeals for the Ninth Circuit. The USSC in a decision describing this as “one of the most expansive class actions ever”, reversed, holding that the plaintiff class did not meet the Rule 23 (a) requirement of common questions of law or fact.

MEDIATION & SETTLEMENT

Cassel v. Superior Ct., 179 Cal. App. 4th 152 (2009) - Lawyer/client Commun’s outside presence of mediator/opp., not inadmissible in later malpractice action. 12/10: Rev. granted by CSC & reversed (No. S178914, January 13, 2011) (Baxter, Chin dissenting). Held: Evidence ruled nondiscoverable and inadmissible by the trial court based on the mediation confidentiality statutes was not, as a matter of law, excludable merely because they were private attorney-client communications outside the mediator or any other mediation participant. Such attorney-client communications, like any other communications, were confidential and therefore were neither discoverable nor admissible — even for purposes of proving a claim of legal malpractice — insofar as they were “for the purpose of, in the course of, or pursuant to, a mediation . . . ” (§ 1119, subd. (a).)

Oubre v Entergy Operations, Inc., 118 S. Ct. 838 (1998) - Settlement release must strictly comply with OWBPA to bar employee's age discrimination claims.

Freedman v. Brutzkus, 182 Cal. App. 4th 1065 (2010) - attorney signature " approving as to form and content" on settlement agreement is not actionable representation to opposing attorney. (see also Vega v. Jones Day, et al (2004) 1221 Cal. App. 4th 282.).

LITIGATION

Costco Wholesale Corp. v. Superior Ct., 47 Cal. App. 4th 725 (2009) - Commun's w/outside counsel who conducted fact-finding investigation, interviewed witnesses, prepared 22 pg opinion letter to in-house counsel, are privileged.

TORTS

Diaz v. Carcamo, 2011 DJDAR 9280 (2011) - 3-car accident led to allegations against 1 driver’s Employer of negligence and negligent hiring. Employer stipulated to vicarious liability for its employee’s actions, because the employee was acting within the course and scope of his employment. In so stipulating, the Court affirmed the policy that the employer’s own liability cannot exceed that of its employee. Thus, Diaz could not pursue a claim of negligent hiring or entrustment. Furthermore, that stipulation rendered evidence of the negligent employee’s history irrelevant.