After-Acquired Evidence Was Admissible In A Discrimination Case
Horne v. International Union of Painters and Allied Trades, District Council 16
(Cal. Ct. of App., 1st Dist.), filed December 3, 2013, published December 3, 2013
Raymond Horne, an African American male, applied for a position as an organizer with the International Union of Painters and Allied Trades, District Council 16. After a white male was hired for the position, Horne sued the Union Council for employment discrimination.
During discovery, Horne admitted he was previously convicted of possessing narcotics for sale, and he served a prison term for that conviction. He was paroled after that term of imprisonment. The Union Council did not know these facts when it failed to hire him.
After learning these facts, the Union Council demanded that Horne dismiss his lawsuit. It asserted that federal law barred him from employment as an organizer because of his prior narcotics conviction. Horne disputed the Union Council’s claim that federal law rendered him ineligible for that position.
The Union Council moved for summary judgment, arguing that federal law rendered Horne ineligible for the position.
Horne opposed the motion. He objected to the proffered prior conviction evidence, asserting that the Union Council could not rely on evidence obtained after its failure to hire to justify its employment decision.
The trial court granted the Union Council’s motion for summary judgment. It found that Horne was unable to establish a prima facie case of discrimination because he did not show that he was qualified to be an organizer applicant. It relied on evidence that at the time of the employment decision, federal law prohibited him from serving as a union organizer.
HOLDING & REASONING
The Court of Appeal affirmed. It concluded that the trial court had properly applied the law.
California has adopted the three-stage burden-shifting approach established by the United States Supreme Court for trying of discrimination claims such as Horne’s claim. Under this approach, Horne had the initial burden to prove a prima facie case of discrimination by a preponderance of the evidence. If he did so, then the burden would shift to the Union Council to offer any legitimate, non-discriminatory reasons for failing to hire him. If the Union Council could do this, the trial court would assess whether the proffered reasons might be pretextual.
To prove a prima facie case in a failure-to-hire case, the applicant must show among other things, that he or she was qualified for the position. But Horne’s narcotic possession conviction disqualified him for the position.
The court rejected Horne’s argument that under the after-acquired evidence doctrine, neither the trial court nor appellate court could consider evidence of ineligibility because it did not come to light until after the Union Council decided not to hire him. The after-acquired evidence doctrine precludes consideration of evidence bearing on the employer’s motive that was unknown to the employer before the decision not to hire was made. The reasoning behind this rule focuses on the employer’s motive: an employer could not have been motivated not to hire a job applicant based on information that it did not have at the time of the employment decision. Unless the information was known to the employer at that time, it cannot bear on the issue of whether the decision not to hire the applicant was based on a non-discriminatory reason.
Since evidence of Horne’s conviction was not being used to show the Union Council’s motive for not hiring him, the after-acquired evidence doctrine did not preclude the court’s consideration of Horne’s ineligibility for the position.
In a dissenting opinion, Justice Humes argued that Horne should not have been precluded from showing that the Union Council had discriminated against him. However, the dissenting opinion conceded that Horne’s remedies might have been limited by the fact that he was actually ineligible for the organizer position. The dissenting opinion seemed to be more theoretical than practical.
The Sophisticated User Doctrine Requires Awareness Of The Particular Risk That Caused Injury
Buckner v. Milwaukee Electric Tool Corporation
(Cal. Ct. of App., 5th Dist.), filed December 20, 2013, published December 20, 2013
Kevin Buckner worked as a maintenance man. He was injured while using a power drill on a piece of angle iron. The injury occurred when the drill bit bound and the drill motor itself rotated, twisting Buckner’s arm. Milwaukee Electric Tool Corporation manufactured the drill some 17 years earlier. Buckner sued Milwaukee and others, alleging causes of action sounding in negligence and strict products liability.
Milwaukee asserted that Buckner was a sophisticated user of the drill, and any failure to warn was not a legal cause of his injuries because he already knew or should have known of the dangers involved in using the drill.
Buckner’s theory at trial was that the drill could not be used safely without a side handle, also known as an anti-torque bar. He asserted the drill was negligently and defectively designed because it did not include an interlock device that would prevent the drill from being used when the side handle was not attached. He also asserted Milwaukee failed to adequately warn of the dangers of using the drill, because there was no label on the drill advising that the side handle had to be used to avoid serious injury, and the warnings in the operator’s manual were insufficient to advise of the need to use the side handle and the potential for serious injury if it was not used.
The evidence showed that Buckner’s employer, who owned the drill, no longer had the operator’s manual for the drill. There was also evidence Buckner was experienced in using power tools and drills and was aware they could bind.
The jury found the drill was not negligently or defectively designed. It did not determine whether there was a failure to warn or that the warning was inadequate, because it resolved the failure to warn issue by finding Buckner was a sophisticated user.
Buckner moved for a new trial on the ground of insufficiency of the evidence. He asserted, among other things, that there was insufficient evidence to support the jury’s finding that he was a sophisticated user.
The trial court granted Buckner’s motion as to his failure to warn claim. Milwaukee appealed.
HOLDING & REASONING
The Court of Appeal affirmed.
A new trial may be granted on the ground of insufficiency of the evidence to justify the verdict. However, it should not be granted, “unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.”
The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless an appellate court finds a manifest and unmistakable abuse of discretion.
The sophisticated user doctrine is an exception to a manufacturer’s general duty to warn consumers of dangers inherent in its product. Sophisticated users need not be warned about dangers of which they are already aware or should be aware. Because sophisticated users are charged with knowing the particular product’s dangers, the failure to warn about those dangers is not the legal cause of any harm that product may cause.
To establish the defense, a manufacturer must identify the relevant risk, show that sophisticated users are already aware of the risk, and demonstrate that the plaintiff is a member of the group of sophisticated users.
In this case, it was not enough that Buckner was aware of the danger that the drill might bind and counter rotate when it is used improperly or when the drill bit strikes an obstacle. In order to establish the defense, Milwaukee had to demonstrate that sophisticated users of the product know what the risks were, including the degree of danger involved (i.e., the severity of the potential injury), and how to use the drill to reduce or avoid the risks.
Thus, Milwaukee was required to prove sophisticated users know there is a danger the drill may bind and counter rotate, this may cause serious injury to the user, and the risk may be reduced or eliminated by proper use of a side handle.
The court ruled that with this test in mind, the trial court concluded the jury’s finding that Buckner was a sophisticated user was clearly wrong.
The court rejected Milwaukee’s argument that the jury’s determination, even if wrong, was a harmless error. In this regard, Milwaukee argued that Buckner could not establish that any failure to warn caused his injuries. It asserted that, even if the language, “always use side handle” had been added to the drill’s warning label, as Buckner contended it should have been, his employer would not have retained the side handle or the operator’s manual; the label still would have been largely illegible, and Buckner would not have read it.
The court disagreed: “Because the jury found plaintiff was a sophisticated user of the drill, it did not reach the questions whether defendant failed to adequately warn of the risks of the drill and whether any such failure to warn was a substantial factor in causing plaintiff’s injury.” This failure warranted retrying the case.
This case shows the difficulty entailed in successfully raising a sophistocated user defense. This opinion suggests that specific evidence of likely injuries may be required – not just general evidence of product awareness or usage.
Other Cases Of Interest
A Hiring Decision Was Potentially Protected Activity
Hunter v. CBS Broadcasting, Inc.
(Cal. Ct. of App., 2d Dist.), filed November 18, 2013, published December 11, 2013
Kyle Hunter filed a discrimination complaint alleging that CBS Broadcasting refused to hire him as a weather news anchor because of his gender and age. Hunter alleged that CBS instead hired young, pretty women for such positions.
CBS filed an anti-SLAPP motion, to strike the complaint pursuant to Code of Civil Procedure section 425.16. It argued that its selection of a newscaster qualified as an act in furtherance of its free speech rights. The trial court denied the motion, concluding that Hunter’s claims did not arise from CBS’s hiring decision, but rather from its discriminatory employment practices.
The Court of Appeal reversed the trial court’s order and remanded for the trial court to consider whether Hunter has demonstrated a reasonable probability of prevailing on the merits of his claims.
Section 425.16 requires that a court engage in a two-step process when determining whether to grant a defendant’s anti-SLAPP motion. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause of action fits one of the categories spelled out in Section 425.16(e). If the defendant makes this showing, the court proceeds to the second step of the anti-SLAPP analysis. In the second step, the court decides whether the plaintiff has demonstrated a reasonable probability of prevailing at trial on the merits of its challenged causes of action.
If the defendant does not meet its burden on the first step, the court should deny the motion and need not address the second step.
The trial court erred in concluding that CBS failed to make its initial showing.
Reporting the news and creating a television show both qualify as “exercise[s] of free speech.” CBS’ selections of its weather anchors, which were essentially casting decisions regarding who was to report the news on a local television newscast, “helped advance or assist” both forms of First Amendment expression. The conduct therefore qualifies as a form of protected activity.
Hunter’s complaint made clear that the injury-producing conduct underlying his employment discrimination claims consists of CBS’s decisions about whom to hire as the on-air weather anchors for prime time newscasts. Thus, his complaint was about CBS’ exercise of its free speech rights and CBS had met its initial burden.
California Is Not A Proper Workers’ Compensation Forum for A Professional Athlete Who Only Played One Game In The State
Federal Insurance Company v. Workers’ Compensation Appeals Board
(Cal. Ct. of App., 2d Dist.), filed December 3, 2013, published December 3, 2013
Adrienne Johnson was a professional basketball player. She was not employed by a California team. She never resided in California. Of the 34 games she played as a professional, only one was in California. She suffered no specific injury in California. However, she became disabled based on a cumulative injury.
Johnson sought workers’ compensation benefits from her employer under California law.
The California Workers’ Compensation Appeals Board awarded Johnson benefits. Her employer’s insurer appealed.
The court held that California does not have a sufficient interest in this matter to apply its workers’ compensation law and to retain jurisdiction over the case.
Only Special Damages Were Recoverable
Kalpoe v. Superior Court
(Cal. Ct. of App., 2d Dist.), filed December 17, 2013, published December 17, 2013
Deepak Kalpoe and Satish Kalpoe are residents of Aruba. They were questioned in connection with the 2005 disappearance of Natalee Holloway, an American teenager on a high school trip to Aruba.
Phillip C. McGraw is the host of a CBS television show that purports to present investigations of crimes in the form of a “news magazine.”
The CBS parties hired a private investigator, Jamie Skeeters, to travel to Aruba in the summer of 2005 to investigate Holloway’s disappearance. Skeeters arranged to meet with Deepak by representing that he would help exonerate Deepak. Skeeters secretly recorded and videotaped the meeting with Deepak. During the meeting, Skeeters asked Deepak if he and Satish had sex with Holloway the night she disappeared.
CBS broadcasted an episode of the show which was devoted entirely to Holloway’s disappearance. The videotape showed that when asked by Skeeters, Deepak indicated that Holloway had sex with him and Satish.
After the episode aired, Deepak claimed he had not consented to the videotaping and recording of the meeting, and had not known that Skeeters was recording it. He also claimed that when Skeeters asked if Holloway had sex with him and his brother, he responded “No,” shaking his head, and that the videotape played on the show had been manipulated.
The Kalpoes sued the CBS parties for defamation, defamation per se, invasion of privacy, negligent and intentional infliction of emotional distress, fraudulent misrepresentation and deceit, negligent misrepresentation and deceit and civil conspiracy.
At trial, the CBS parties filed a motion in limine seeking to bar the Kalpoes from introducing any evidence at trial regarding general or punitive damages for defamation, defamation per se, false light, negligent and intentional infliction of emotional distress. The motion was based on Civil Code section 48a, which requires that a plaintiff must demand a correction or is limited only to recovering special damages. The CBS parties argued that because the Kalpoes had not demanded a correction, they could not introduce evidence of general or exemplary damages. The Kalpoes did not dispute that they did not demand a correction. The trial court granted the motion.
The Kalpoes sought relief by way of a petition for a writ of mandate.
The Court of Appeal denied relief. It held that based on the express language of Section 48a, a “news” show enjoyed the same protections as a news report. Since the Kalpoes had not demanded a retraction, they could not recover general or punitive damages.
A Dismissal Request Can Start The Clock Running For An Appeal
Dattani v. Lee
(Cal. Ct. of App., 1st Dist.), filed December 19, 2013, published December 19, 2013
Kaushik Dattani sued Geen Hong Lee. The complaint contained four causes of action.
By order dated June 27, 2012, the court granted Lee’s motion for summary adjudication of Dattani’s first cause of action. On September 10, 2012, Dattani filed a request for dismissal of all the remaining causes of action in order to pursue an appeal.
On April 16, 2013, the court filed a “Judgment by the Court Under Code of Civil Procedure section 437c” prepared by Dattani’s counsel.
On May 6, 2013, Dattani filed a notice of appeal from the April 16 judgment.
Lee moved to dismiss the appeal as untimely.
The Court of Appeal granted Lee’s motion. It held that Dattani’s request for dismissal was the equivalent of a September 10, 2012 judgment, and was appealable as of September 10, 2012. Dattani had 180 days to file his notice of appeal or until March 9, 2013. Since he waited more than 180 days, his notice of appeal was untimely.
A Challenge To A Judge Was Untimely
Fry v. Superior Court
(Cal. Ct. of App., 2d Dist.), filed December 9, 2013, published December 9, 2013
Jack Fry, Gary Cline, Sandra Carlsen, Yvette Moreno, and the Retired Fire & Police Association brought a writ proceedings against the City of Los Angeles. On March 18, 2013, the Los Angeles Superior Court clerk notified them that the case had been assigned to Judge Joanne O’Donnell in Department 86, a writs and receivers department. They responded on April 3, by faxing an affidavit of prejudice, pursuant to Code of Civil Procedure section 170.6, to the court’s “central fax filing office.”
Along with the applicable form, their counsel sent a Judicial Council Form MC-005, entitled “Facsimile Transmission Cover Sheet.” Other than asking that the affidavit be filed, the transmittal form did not direct that it be sent to Judge O’Donnell or the presiding judge.
The trial court eventually denied the challenge. It ruled that the challenge was untimely because the filing instructions did not direct it to Judge O’Donnell or the presiding judge.
Fry and the others sought review.
The Court of Appeal denied relief. It reasoned that the Code of Civil Procedure required the assigned judge or presiding judge be alerted to a challenge so it could be ruled on promptly. Since the challenge wasn’t directed to either the assigned judge or presiding judge when it was filed, it was not timely.