Recent California Appellate Opinions in Sexual Harassment and Employment Law

Integrated Healthcare Holdings, Inc. v. Fitzgibbons - Trial court's denial of Defendant's Anti-SLAPP motion is reversible error where defendant contended an e-mail message he sent questioning the financial condition of plaintiff concerned a matter of public interest under section 425.16, subdivision (e)(4), and that plaintiff failed to demonstrate a probability of prevailing on the merits of its claims for defamation, breach of contract, tortious interference, and violations of Business and Professions Code section 17200 et seq.

Aral v. Earthlink, Inc. - Arbitration agreement is unconscionable and unenforceable when it attempts to force California consumers with minor monetary claims to arbitrate in Georgia and prevents them from bringing class actions.

Burlage v. Superior Court - Despite that the superior court's discretion to review/vacate an arbitrator's decision of law or fact is generally "extremely limited" even when it causes substantial injustice (as stated by the California Supreme Court in Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 25,) when an arbitrator excludes material evidence that substantially prejudices a party pursuant to Code of Civil Procedure section 1286.2.1, the Superior Court may properly vacate the arbitrator's decision. Petition for writ of mandate denied.

Circuit City v. Mantor - Trial court's granting of employer's "renewed" petition to compel arbitration is reversed where second petition is based on claim that the decision in Luce Forward constituted intervening law which should change result.

Gatton v. T-Mobile - Even when only a minimal degree of procedural unconscionability is demonstrated, where a high degree of substantive unconscionability exists (i.e., a class action waiver) arbitration provision is unconscionable and unenforceable.

Gentry v. Superior Court (Circuity City) superseded by California Supreme Court Opinion issued August 30, 2007 - Where class arbitration would be a significantly more effective way of vindicating the rights of affected employees than individual arbitration, class action waiver is unenforceable; Also, a finding of procedural unconscionability is not required to invalidate a class arbitration waiver if that waiver implicates unwaivable statutory rights. But such a finding is a prerequisite to determining that the arbitration agreement as a whole is unconscionable.

Higgins v. Superior Court (Disney/ABC) - Five siblings who appeared in TV show "Extreme Makeover: Home Edition," were correct in their assertion that arbitration agreement they were signed before appearing on show was unconscionable and unenforceable, where clause was not conspicuous, in smaller type than rest of the agreement, limited their remedies, and no evidence was presented that the clause was ever explained to the siblings.

Martinez v. Master Protection - Arbitration agreement is procedurally and substantively unconscionable, permeated with illegality, and unenforceable. Trial court's appointment of arbitrator after arbitral tribunal refused to proceed with arbitration was also an abuse of discretion.

Matthau v. Superior Court (William Morris Agency) - Trial court erred in granting talent agency's petition to compel arbitration where neither of the opposing parties were parties to any of the arbitration agreements under which the talent agency sought arbitration, and none of the legal principles under which a nonsignatory may be bound to another's agreement to arbitrate applies.

Metters v. Ralphs Grocery Company - Ralphs Grocery Company fails to meet its burden on a motion to compel arbitration against its employee, by failing to prove an agreement to arbitrate.

Mitri v. Arnel Management Company - Where a defendant fails to prove existence of signed arbitration agreement, defendant's motion to compel arbitration is properly denied and defendant's argument in support thereof is "wholly without factual support or legal merit."

Murphy v. Check N' Go - In California, trial court, and not arbitrator, properly decides a motion to compel arbitration; trial court's order denying motion to compel arbitration in a wage and hour case was proper where alleged agreement was unconscionable, based on, among other things, presence of class action waiver. 1/29/08 Order modifying original decision in Murphy v. Check N' Go.

Nyulassy v. Lockheed Martin - Holding in Armendariz properly extends to post-dispute arbitration agreements made with employees, and arbitration agreement was properly found to be unconscionable even where employees attorney reviewed agreement before it was signed by employee.

Ontiveros v. DHL Express - Trial court's decision denying defendant's motion to compel arbitration because it was unconscionable and unenforceable was proper and order should be affirmed.

Vu v. Ralphs Grocery Company (unpublished, not citeable) - Plaintiff filed a class action against his employer, alleging the employer had violated the Labor and Business and Professions Codes by denying meal and rest periods and then failing to pay wages due as a result. Employer moved to compel arbitration, asserting plaintiff was bound by the written arbitration agreement. In opposition, the plaintiff argued the purported agreement, which precluded all class, collective and representative actions (among other limitations), was unconscionable on multiple grounds and therefore unenforceable; at the very least, he urged, he should be granted a continuance to conduct discovery pursuant to Gentry v. Superior Court (2007) 42 Cal.4th 443, 463. The trial court granted the petition to compel arbitration. Plaintiff sought appellate relief by filing a petition for writ of mandate. The Court of Appeal held that because the employer's arbitration agreement contained multiple defects and was unenforceable as a result, the petition should be granted and the matter should proceed in a court of law.

Whaley v. Sony - Trial court did not misapply the law in denying a motion to compel arbitration pursuant to Code of Civil Procedure section 1281.2, subdivision (c) because of the presence in the suit of non-parties to the arbitration agreement.

Wherry v. Award, Inc. - Trial court properly denied Defendants' motion to compel arbitration (after successful alternative writ petition by Plaintiffs instructing it to do so or show cause), where form arbitration agreement authored by the California Association of REALTORS® was found to contain multiple substantively unconscionable provisions, including a provision that shortened the statute of limitations and one that exposed Plaintiffs to the potential imposition of attorney's fees and costs in violation of Armendariz. The circumstances also indicated that Plaintiffs were presented with a "take it leave it" arbitration agreement when they first contracted with defendants, were told they were required to sign it if they wanted to work for defendants, no one described the agreement's contents, Plaintiffs were given but a few minutes to review and sign it, without any time to ask questions, and Plaintiffs were never given a copy of the document.

Harman v. City and County of San Francisco - Trial judge did not abuse discretion in refusing to reduce plaintiff's attorney fee award despite the award's claimed lack of proportion to the monetary recovery and the claimed lack of success as to some of plaintiff's claims, but court should not have awarded fees for prior unsuccessful appeal on attorney fee issue.

Horsford v. California State University Fresno - Trial court abused its discretion in deciding amount of attorney fees award to prevailing plaintiff's counsel in a FEHA action by: 1) failing to use counsels' time records as the starting point for its lodestar determination; 2) failing to adequately to consider the propriety of a higher hourly rate for plaintiff's counsel, a San Francisco attorney, in order to accomplish the purposes of FEHA; 3) failing to consider the relevant factors for awarding an enhancement multiplier; and 4) in requiring plaintiffs' counsel to look to their clients, under a contingency fee agreement, to make up for any undercompensation arising from the court's statutory fee award.

Engle v. Copenbarger - Attorney Fees Under FEHA recoverable after defendant's acceptance of a CCP section 998 offer to compromise which is silent as to fees.

Wysinger v. Automobile Club of Southern California - Trial court is not required to apportion attorney fees under FEHA between successful and unsuccessful claims.

Blum v. Superior Court (Copley Press)

Gelfo v. Lockheed Martin Corporation

Lazan v. County of Riverside

Wysinger v. Automobile Club of Southern California - In FEHA disability case, jury may properly find: 1) employer liability for failure to engage in interactive process; and 2) no liability for failure to accommodate disability; such result is not impermissibly"inconsistent."

Raine v. City of Burbank

McDonald v. AVCC

Noble v. Draper - Judgment against employee must be because claim alleging fraudulent inducement to enter employment, is not precluded by
their prior pursuit of wage claims in an administrative forum before the Labor Commissioner pursuant to Labor Code section 98 et seq.

Christie v. El Centro

Bearden v. U.S. Borax

Arenas v. El Torito Restaurants - Trial court did not abuse its discretion in denying class certification based on finding that "common questions of law and fact did not predominate over individualized issues."

Eicher v. ABI

Huntington Memorial Hospital v. Superior Court

JHK Enterprises v. Dept. of Industrial Relations

Singh v. Superior Court

Tien v. Tenet Healthcare Corporation

Kelly v. Stamps.com

Harris v. Santa Monica - Court erred in not giving "mixed motive" jury instruction under BAJI 12.26 (given that no CACI equivalent existed), ordering retrial. Note: This original opinion above was vacated after rehearing and a new opinion, with the same result was issued: Harris v. Santa Monica, Opinion After Rehearing.

Note: The Court of Appeal's opinion in Harris is no longer good law (no longer citeable), due to the California Supreme Court's order granting plaintiff's petition for review.

Puerto v. Superior Court (Wild Oats) - People have a right of privacy as to their address and phone numbers; However, trial court's requirement that witnesses sign an "opt-in" form before allowing to plaintiff's counsel access to addresses and telephone numbers of potential witnesses was improper; trial court is ordered to compel defendant to produce the information to plaintiff's counsel.

Johnson v. Ford Motor Company, Inc. (now superseded by the Supreme Court decision in Johnson v. Ford Motor Company)

Bullock v. Phillip Morris, USA (opinion after remand from the California Supreme Court following the decision in Williams v. Phillip Morris; Vacates original opinion affirming a punitive damages ratio of 33-to-1 as stated in Bullock v. Phillip Morris, USA) - Plaintiff demonstrated entitlement to punitive damages based on clear and convincing conduct of reprehensible conduct, but trial court erred in refusing defendant's jury instruction that while jury could consider harm to others in determining reprehensibility, it could not consider harm to others in setting the amount of the award necessary to punish defendant.

Wysinger v. Automobile Club of Southern California - In FEHA disability case, $1 million punitive damages award not disproportionate to $280,000 compensatory award.

Pinero v. Specialty Restaurants Corporation

Taylor v. City of Los Angeles - Supervisor may face personal liability for FEHA's anti-retaliation provision where employee protests discrimination against a co-worker and is subsequently retaliated against by the supervisor.

Butler v. VONS Companies

Frey v. City of East Palo Alto (Unpublished Opinion on Petition for Writ) - "Culture" of offensive insults and banter within wokrplace does not excuse racial comments by supervisor toward subordinate employees and 30 day suspension of supervisor imposed by employer and approved by trial court was not an abuse of discretion.

Hammond v. County of Los Angeles - Trial court improperly granted summary judgment on race claims under FEHA based on showing that retaliation may have continued more than one year before complaint was filed. Now superseded by Hammond v. County of Los Angeles - opinion after rehearing.

Nazir v. United Airlines - Trial court's order granting summary judgment/adjudication and sustaining hundreds of objections in blanket fashion was held to be improper. Defense counsel's filing of thousands of pages of documents and asserting hundreds of claimed facts as "undisputed" and "material" when in fact, many were not undisputed and/or material, was improper use of summary judgment/adjudication procedure. The court stated: "This, then, is what is before us for de novo review: an order granting summary judgment that purports to sustain without explanation 763 out of 764 objections to evidence, in a record the likes of which we have never seen - not here, not in the combined 11 years of law and motion experience of the members of this panel. Nevertheless, we deal with what is before us, and first hold that the trial court's "ruling" on defendants' objections was manifestly wrong. We then review the matter considering all the evidence properly in the record. And we reverse the summary judgment, concluding that eight causes of action must be decided by a jury."

Ambriz v. Kelegian

McCarther v. Pacific Telesis - Labor Code section 2331 (which requires employers to allow their employees to use "sick leave," as defined in section 233, to attend to an illness of a child, parent, spouse, or domestic partner, so-called "kin care" leave), applies to the "sickness absence" policy to which they are subject as employees of their respective defendant companies.

Angelucci v. Century Supper Club (Unruh Act)

Ahmadi-Kashani v. UC Regents - Before filing sexual harassment lawsuit under FEHA, employee plaintiff was not required to complete internal grievance process set forth in a collective bargaining agreement entered into between the University and her union.

Bradley v. California Department of Corrections - Temporary worker (nurse) was an "employee" entitled to protection under FEHA; employer had a duty to act immediately to stop the sexual harassment directed at Bradley by a coworker and to ensure that no further harassment occurred. Referring the matter to a lengthy and complicated investigative process alone is insufficient to comply with the protections mandated by the FEHA when continued contact with the harasser leads to further harassment.

Dukes v. Walmart, et al - District Court did not abuse discretion in certifying class action suit against Wal-Mart alleging sexual discrimination under Title VII of the 1964 Civil Rights Act.

Gober, Finton v. Ralphs Grocery Company

Hope v. California Youth Authority

Weeks v. Baker & McKenzie

Myers v. Trendwest Resorts (Summary Judgment)

Myers v. Trendwest Resorts (After Trial)

Singleton v. United States Gypsum

Wellpoint v. Superior Court (McCombs)

Jones v. The Lodge at Torrey Pines

Order Modifying

Order Granting Review on Limited Issue of Personal Liability for Retaliation under FEHA (see page 2)

California Supreme Court Opinion in Jones v. The Lodge at Torrey Pines - No personal liability for supervisors who retaliate against employees under FEHA (supersedes Court of Appeal's Opinion)

Flores v. Nelson

Stamps v. Superior Court

Barbosa v. Impco - A superior court Order granting defendant's motion for nonsuit should be reversed where the trial court improperly found there was no public policy protecting a mistaken but good faith claim to overtime wages. "The public policy in favor of the employer's duty to pay overtime wages protects an employee from termination for making a good faith but mistaken claim to overtime."

Brar v. City of Banning (Non-Published Opinion) - Government employer may terminate employee for displaying sexual images in workplace, even where terminated employee claims the display result from accidental "pop-up" ads resulting from internet use.

Casella v. SouthWest Dealer Services - Wrongful termination claim is properly tethered to violation of Penal Code section 487 (theft by fraudulent misrepresentation); thus trial court properly refused to grant defendant's motion to dismiss.

Franklin v. Monadnock Company

King v. U.P.S. (ordered published 6/22/07)