Victims of employment harassment/discrimination are not alone. Recent “Me too” evidence case gives victims of harassment/discrimination a helping hand in employment cases. Pantoja v. Anton (August, 2011) 198 Cal.App.4th 87.

             “Me too” evidence is a type of evidence used in employment cases. Typically, a victim of harassment/discrimination may come to learn that others have also been the victim of harassment/discrimination and will want to use that evidence to help them prove their case. That is where the phrase “me too” evidence comes into play. See Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties (2009) 173 Cal. App. 4th 740. Having others who experienced harassment/discrimination at the same place of work can be very helpful to your case because as they say, “where there is smoke, there is fire.” But, like any evidence, there is always a question of whether it will be admitted into the court by the judge.

Defense lawyers, representing employers, do not like me too evidence, and they will do as much as possible to keep it out. Defense lawyers take the position that the victim of harassment/discrimination had to know that others were also experiencing harassment/discrimination at the time it was going on in order for me too evidence to be admitted into court. See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.

If a judge or jury hears that others at work experienced the same harassment/discrimination that you did, then that me too evidence will likely convince the judge/jury that you are not making up or exaggerating your claim. And, when it comes time for the judge/jury to decide if you are right or wrong, having another person also experiencing the same problems can make that crucial difference in your case.

                Generally, in order to have me too evidence admitted into evidence (allow the judge/jury to see/hear it), the victim needs to show that the victim knew that this other victim was or had experienced the same harassment/discrimination that you experienced. Sounds simple, but like many employment cases, victims do not always complain or voice their concerns out of fear of retaliation, losing their jobs in an already weak economy or just plain humiliation. Therefore, a lot of times, a victim of harassment/discrimination may never know of the other victims until well into after a lawsuit was filed, if at all. By then, courts may not admit that me too evidence because you did not know of the other victim while you yourself were going through the harassment/discrimination. Luckily, for employees, that no longer has to be the case.

                In Pantoja v. Anton (August, 2011) 198 Cal.App.4^th 87, the California Appellate Court ruled that a victim seeking to admit me too evidence did not need to know of the other victim’s harassment/discrimination in order to have me too evidence admitted into court. Instead, the Appellate Court ruled that a victim of harassment/discrimination can use recently discovered me too evidence to (1) impeach the defendant who denies ever committing harassment/discrimination before or (2) to show intent of the defendant to harass/discriminate against others in the same way.

Based on a reading of this ruling, the Appellate Court has provided victims of harassment more opportunities to prove they were a victim of harassment/discrimination. It no longer has to be a “he said, she said” type case. This ruling undoubtedly expands the rights of victims of harassment/discrimination in proving they were the unfortunate victims of harassment/discrimination.

Posted by: Attorney Angelo F. Campano at acampano@campanolaw.com; Tel: 661-945-5300.

California really does take its tree cutting seriously. (Stanley Kallis v. Aaron Sones, LASC SC104866)

In another recent tree case, the Appellate Court was asked to decide what and how much in damages must be paid when a tree, growing between two properties, is damaged by one of the property owners.

In Kallis v. Sones, these were two neighbors who lived side by side for years. They never seemed to have a problem. In between their property was a tree that grew 70 feet in height. The tree grew on the property line that divided both properties, also referred to as a “line tree”. See Scarborough v. Woodill (1907) 7 Cal.App.39, 40. And eventually, part of the tree grew so tall that the Sones family felt that the part of the tree, hanging over their yard, would be a danger to their home. So, the Soneses decided to protect their home by cutting the tree. The only problem is that the Soneses cut down the entire tree, even though some of that tree also grew on their neighbor’s property. The Soneses claimed they gave their neighbors a written notice but there was no proof this was ever done. (In a prior posting, I suggested that anyone deciding to cut down a tree that may also be on a neighbor’s yard should give written notice of the tree cutting. Had there been proof of this, the court may have decided differently.)

The Sones family was sued by the Kallis family, and the court sided with the Kallis family. The court awarded what it would cost to restore a tree similar in height and size, also referred to as “restoration cost”. See Heninger v. Dunn (1980) 101 Cal.App.3d 858, 862. The court also doubled that award under Civil Code Section 3346. The total amount came to exceed $100,000. The Soneses appealed and claimed that the damages, if any, should have been reduced to reflect the fact that the tree grew on both properties, so the Soneses were entitled to a credit for half the tree they owned. That’s a fair argument however the Kallis family argued that the tree provided a lot of personal value to them, a value that could not easily be replaced. The Court heard testimony on this “personal value” and held that the personal value of the tree to the Kallis family justified the entire amount ordered, including the doubling of that award.

The summary of this case is that a tree growing between two property owners is owned by both property owners, and if you are going to cut away any part of that jointly owned line tree, make sure to (1) notify your neighbor and (2) avoid causing harm, personal or otherwise, to the part of the tree owned by the neighbor next door.

Do not go out on a limb when cutting a neighbor’s overhanging tree branches.

Generally, in California, a landowner can cut branches of a neighbor’s tree if the branches overhang in his/her yard. But, the landowner cannot cut so much of the tree if it ends up damaging or destroying the neighbor’s tree. In a recent case, the Appellate Court added that the landowner who cuts down over hanging branches of a neighbor’s tree can also be responsible for damages if the tree trimming affects the aesthetic or functional value of the tree.

In Rony v. Costa, a defendant landowner wanted to clear some overhanging branches of a tree that were growing from a tree located on a neighbor’s yard. The case is not clear if the defendant landowner informed the neighbor that the branches would be cut down. Under the law, the defendant landowner generally has the right to cut overhanging branches. But, the landowner went too far, according to the Appellate Court, when the tree branch cutting harmed the aesthetic and functional value of the tree. The tree, itself, did not die nor was it damaged significantly. The tree owner, however, testified that the tree, before its branches were cut, provided shade and made her yard more attractive to the eye. That was the aesthetic value.

On appeal, the Appellate Court held that a tree owner can recover for the loss of a tree’s aesthetic value. In other words, the Appellate Court allowed the tree owner to recover for the emotional damage caused by the tree branch cutting. Aesthetic value is generally a subjective decision and often difficult to place a value on. In this case, the tree owner could not place a dollar figure on her emotional damage, but the Appellate Court held that she did not have to do so. A jury “was free to place any dollar amount on aesthetic harm, unless the amount was ‘ “…so grossly excessive as to shock the moral sense, and raise a reasonable presumption that the jury was under the influence of passion or prejudice.” See Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-509 [15 Cal.Rptr. 161, 364 P.2d 337] [affirming award of hard-to-measure emotional distress damages]; See Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1011-1014 [283 Cal.Rptr. 644] [affirming awards for reputational and emotional harms].)

In California, trees are very well protected. Code of Civil Procedure 733 and Civil Code 3346 allow a tree owner to recover up to 3 times the cost of repairing the damaged tree.  Under case law, according to the Appellate Court, the tree owner can recover for the damage caused to the aesthetic value of her tree. In addition, Code of Civil Procedure 1029.8 allows a tree owner to recover attorneys’ fees against the unlicensed person who actually caused the damage when a license is required to perform the work.

Not mentioned in the court opinion is whether the defendant landowner informed the tree owner that the overhanging branches were going to be cut. Although not required, it is recommended that the person about to cut branches or roots let the tree owner know in advance what is going to be done. Including the tree owner in on the plan could help keep the consequences of what happened here out of court.

www.campanolaw.com

An Employee refusing to sign a disciplinary memo can be fired and denied unemployment benefits.

            In many jobs, employers have written warnings or notices they give to employees who are believed to have violated a work rule. Typically, these warnings/notices have a place at the bottom where the employee is supposed to sign his/her name. Generally, it is so the employee cannot later on say they never knew of the warning/notice. Sometimes, the employee refuses to sign the warning/notice because it might be looked at like an admission of fault. In a recent case, one employee refused to sign his name, and was fired for not signing the warning/notice. The employee filed for unemployment benefits and was initially given benefits. The employer appealed that decision and the Appellate Court sided with the employer. The Appellate Court found the employee committed misconduct for not signing the warning.

            In Paratransit, Inc. v. Craig Medeiros, the fired employee filed for unemployment benefits. In California, an employee can be refused unemployment benefits if the unemployment judge finds the employee committed “misconduct”. In this case, the fired employee was granted unemployment benefits by the unemployment judge. The employer appealed, the case made its way to the Appellate Court, where the employer prevailed. The Appellate Court found the discipline notice/warning was a standard policy at work and signing the warning was required as part of the job. Further, the Appellate Court found that just below the signature line, it read “employee signature as to receipt”. The Appellate Court found, in this instance, that the employee signing the notice/warning was just to give the employee notice of the violation, not that the employee admitted fault.

            In the Paratransit, Inc. v. Craig Medeiros, the Appellate Court seemed to support the employer and find the employer’s actions reasonable. According to the Appellate Court, the discipline notice/warning was a part of the job, and the notice/warning made it clear that the employee signing his name was not an admission of fault. The Appellate Court found misconduct by the employee because the employee refused to comply with the employer’s reasonable work rules/policy of signing the warning/notice. With a finding of misconduct, the employee was denied unemployment benefits.

http://www.campanolaw.com/
acampano@campanolaw.com

Bloggers may not always be allowed to post negative reviews about businesses.

            The courts may not protect people who post negative postings of businesses on the internet. Deciding whether the business owner can stop negative postings will depend on the corporate structure of the business, according to one recent Appellate Court.

            In Summit Bank v. Robert Rogers, the Appellate Court sided with the blogger, who posted negative comments about a publicly traded bank. The blogger worked for the bank until he resigned. The bank sued for defamation and the blogger filed what is referred to as an Anti-SLAPP Motion to strike the lawsuit. The blogger filed the motion claiming his posts were protected speech because issues surrounding the bank were of “public interest”. (See CCP Section 425.16)

            In analyzing the phrase “public interest”, the Appellate Court initially held that the phrase “public interest” is not defined by the statute (CCP Section 425.16). In the absence of a statutory definition, the Appeals Court applied existing case law and held that comments, positive or negative, about a business were of “public interest” if the blogger who posted the negative comments can prove that (1) the company is publicly traded (2) the number of investors and (3) whether the company promotes itself with numerous press releases. See Ampex Corp. v. Cargle (2005) 128 Cal.app.4^th 1569, 1576.

            Here, according to the Appellate Court, the postings were of public interest because the blogger could prove all three factors with conclusive evidence. The bank was publicly traded; the bank had investors; and the officers/executives issued many press releases promoting their publicly traded bank to attract more investors. The Appellate Court also noted that a public concern was the recent bank meltdowns going on throughout the country. Therefore, the public had even a stronger interest in the solvency of banks.

            In the end, the Appellate Court sided with the blogger. Although the Appellate Court, in Summit Bank, sided with the blogger and held the postings were protected speech, it appears the Appellate Court took that position because the blogger could prove the 3 factors listed above. The blogger had the burden of proof, which is not something to quickly overlook. One view to take from this opinion is that if your business is not publicly traded, does not have many investors, and you do not issue numerous press releases, a court may decide that the negative postings on the internet about that business are not of public interest and not protected speech. Whether or not the bank could prove a probability of success on the merits and whether the postings are defamatory are separate questions.

No overtime pay for personal attendants

Overtime for personal attendants? A person hired to care for an elderly person is not entitled to overtime if that person is hired as a personal attendant. Overtime is earned if a person works in excess of 8 hours a day or more than 40 hours a week. A personal attendant is defined as someone hired to supervise, feed or dress the client/elderly person. See Joy Cash v. Iola Winn 2012 WL 1662629 (Cal. Ct. App. 2012)

Witnesses are not always welcomed in the courtroom.

      In court, witnesses can help support a person’s claims. Without a witness the case will boil down to the “he said she said” type case. When you have a witness, your chances of proving a point can increase; however, that increase depends on your witness backing up what you say. Ideally, the witness has personal independent knowledge of what happened, and does not have to be reminded of what happened. That is the ideal answer, but not always the most practical. So, sometimes parties want their witness inside the courtroom to watch and hear what is being said so that when the witness takes the stand the witness will almost repeat what was said earlier. Fortunately, there is California Evidence code §777 which says, in part, “…the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.”

      The purpose of Evid Code §777 is to maintain fairness and veracity in the courtroom. This is done by keeping witnesses outside the courtroom until they called to testify. That way, the witness cannot be guided by what was said or heard, but instead by his/her own memory. In a case I defended, Evid Code §777 helped win the case.

      In the case I defended, my client was accused of doing bad things. Of course, that was not true, I knew that it was untrue, and believed in my client from day one. When we went to court to fight the case the purported “victim” showed up with two witnesses. In criminal cases we do not have the luxury of depositions (testimony taken under oath before trial), so we had to rely on what we believed. But we also relied on Evidence Code §777, and the court agreed to keep the two witnesses outside the courtroom. That code proved pivotal because the “victim” took the stand and testified that my client did bad things. When I had the chance to cross-examine the “victim”, I asked him if his witnesses outside were going to back him up on everything he says happened. The “victim” made it clear these witnesses were there when these alleged bad things happen. With that said we called in witness number one and this witness contradicted what the “victim” said happened. Then, we called in witness number two and that witness contradicted not only the “victim” but even the first witness. When done, the judge dismissed the case and politely suggested that the “victim” think twice about making these allegations again. Making an Evid Code 777 request and keeping the witnesses outside the courtroom until they are called into testify can help keep the trial fair and honest.

http://www.campanolaw.com/

Employers cannot change arbitration agreement after complaint made by employee.

In a recent case, the California Appellate Court ruled that an arbitation agreement between an employer and employee cannot be modified after the employer believes the employer may file a lawsuit, even if the arbitration agreement expressly allows the employer to modify the arbitration agreement. The Court held that allowing the employer to make changes to its arbitration agreement after the employer learns of a complaint by its employee makes the agreement illusory, and thus unenforceable. As the Court stated, ..."Were it otherwise, the employer could amend the contract in anticipation of a specific claim, altering the arbitration process to the employee‘s detriment and making it more likely the employer would prevail." See Amir Peleg v Neiman Marcus Group, Inc.

(by Attorney Angelo F. Campano at acampano@campanolaw.com)

Help maybe on the way for business owners from negative online reviews.

 (written by Angelo F. Campano, owner/Campano Law Group, http://www.campanolaw.com/)

Is your name or business reputation important to you? Have you or your business been negatively criticized on line by someone? Been told there is nothing you can do to stop it from happening? Well, there may be some alternatives available to help you... protect your name, your business and reputation from those anonymous online reviews that seem to pop up out of nowhere.

When a negative review is posted on line, it is almost impossible to find out who posted it. The person posting the review is allowed to hide their true name or even if they were a customer of the person/business they are criticizing. This is blatantly unfair to the business owner who has worked so hard and long to build their reputation, all to have it reviewed negatively by someone who may never have even stepped foot into your business. The other day I recently watched a “reality” television (I won’t disclose which show from the east coast) show where a person who blogged badly about the business turned out to never had been to the business or bought anything from that business. How is that fair to the business? It’s not. Yet, the law seems to give greater protection to the negative posters.

The law generally protects the actual website that hosts these reviews. That protection, however, may be changing since that protection is more and more taken advantage of by the websites. As for the people that post these anonymous reviews, the law is not as protective as one would think or like. The websites themselves, that allow you to post your review, are not in a rush to protect the people posting anonymous reviews. Ever read the “terms and conditions” you agreed to before you posted your review? If not, then read it because you will likely see that you, as the poster of the anonymous review, could end up having to pay back the very same website that allowed you to post your negative review. The very website you post your negative review on can end up being your enemy.

In the case of Wong v. Jing (2010) 189 Cal.App.4th 1354, the plaintiff, a dentist, received a bad review on line by a former patient’s parents. The dentist believed it to be defaming and sued both the patient’s parents who wrote the story and Yelp for posting it on its website. At some point in the case, Yelp was dismissed by the person suing. But, the people who wrote the story were not as lucky in having the entire case dismissed despite trying hard to do so. The defendants filed an anti-slapp motion claiming their stories were based on their right to speak. An anti-slapp motion can be very powerful device if sued for speaking out on certain subjects. The appeals court agreed that part of the lawsuit arose from protected speech but also ruled that the story was potentially defaming to the dentist and allowed that part of the lawsuit to go forward. The law does not protect defamation. That meant that the people who wrote the story could end up having to pay a lot of money for writing a story that falsely harmed the dentist’s reputation and business.

One aspect of the appellate court’s ruling that was very briefly discussed but of interest (well, maybe just of interest to those who like to read appellate court cases) and maybe of help to businesses, is that the appellate court made a distinction between equitable relief and causes of action and the use of anti-slapp motions. The appellate court ruled that that the anti-slapp motion, used often by the defense, does not apply to equitable relief. Rather, the motion only applies to causes of action.”…Specific performance and injunctive relief are equitable remedies and not causes of action for injuries”. See Wong v. Jing citing Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618 [129 Cal. Rptr. 2d 546]. So, the conclusion one can draw is that a business owner may prevail in its lawsuit against negative reviews by seeking equitable relief (e.g. removal of the negative review) rather than by just asking for monetary compensation.

To many business owners, the business becomes part of your family, which you want to protect. If you, as a business owner working hard to promote and protect your business and reputation, receive a negative anonymous online review, help may be on the way. The Wong v. Jing case helps suggests an alternative way for the business owner to protect itself from the anonymous online reviews that you, the business owner, may have thought that nothing can be done.

Employer has to pay again, maybe.

Who bears the loss when a settlement check is supposedly lost and cashed by forger? According to Court, the employer must pay another settlement check to former employee who claims original settlement check was stolen and cashed by thief. See Barrett Business Services, Inc. v. Workers Compensation Appeals Board

California employment law update: Who needs lunch anyway?

In a very closely watched employment case, California Supreme Court rules that employers no longer have to ensure that employees stop working for their lunch breaks. Employees are free to work through lunch. Per the Court, ..."The employer is not obligated to police meal breaks." See Brinker Restaurant Corp. v. Super. Ct.

California Supreme Court teaches public school districts a lesson

            May a public school district be held liable when school supervisors allegedly negligently hire, retain or supervise a school guidance counselor who purportedly molests a student, when the school supervisors who hired the counselor knew or should have known that that the counselor had a history of child molestation? Yes, according the unanimous decision by the California Supreme Court in the case of C.A., a minor v. William S. Hart Union High School District.

           The question may be simple and the answer may be appear be even more simple to many people. The trial and appellate courts, however, thought differently by deciding that the public school district had no such duty for the acts of its supervisors at the school, and therefore, the school district as a whole was not liable for the harm to the student.

           If one reads the case carefully, the issue is not whether the school district is liable to the student for the acts of the allegedly molesting counselor; but rather is the school district liable to individual student because the supervisors at that individual school allowed the counselor to work at the school knowing of the counselor’s actions? This question required an in depth focus on the laws of vicarious liability and respondeat superior, which typically means one being responsible for the acts of another.

           In answering the question, the California Supreme Court held that the school supervisors owe its students a duty of care, and that the school district can be liable for the negligence of those individual supervisors. In support of its holding, the California Supreme Court held that there is a “special relationship” between the schools, supervisors and its students. Quoting from the case, the Court stated that:

 “…a school district and its employees have a special relationship with the district’s pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, “analogous in many ways to the relationship between parents and their children.” (Hoff v. Vacaville Unified School Dist., supra, 19 Cal.4th at p. 935; see M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517; Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at pp. 1458-1459.)… We conclude plaintiff’s theory of vicarious liability for negligent hiring, retention and supervision is a legally viable one. Ample case authority establishes that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable. (See, e.g., Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1458- 1461.) If a supervisory or administrative employee of the school district is proven to have breached that duty by negligently exposing plaintiff to a foreseeable danger of molestation by his guidance counselor, resulting in his injuries, and assuming no immunity provision applies, liability falls on the school district under Government Code section 815.2.”

           To sum up, what this case means is that the school district, and not just the individual school and supervisors, can be held liable for the acts of the supervisors at the school that leads to harm to its students. In light of the recent and ongoing allegations/investigations of public schools in California, school districts will not always be able to shield itself from the harm suffered by its students.

Additional Resources

Campano Law Group
http://www.campanolaw.com/
acampano@campanolaw.com
Tel: 661-945-5300

California Courts Website

Keep it out of court with a Motion in Limine.

Don’t want the jury to see something negative about your case? Then, make a motion in limine. A Motion in limine is a motion made before trial to exclude evidence from trial on the ground that the evidence is either irrelevant or subject to discretionary exclusion as unduly prejudicial. See Ulloa v. McMillin Real Estate & Mortgage, Inc. (2007) 149 Cal.App.4^th 333, 337-338. In other words, you are asking the judge to keep something out of the trial because you think it might be bad for your case and do not want the judge or jury to see or hear it.

There are times, however, when a motion in limine can be made to request the judge to permit you do something or to present evidence at trial, although this type of motion is rarer.

Motions in limine are usually made before trial starts, because by then you will know or have an idea of what the other side will try to show the judge or jury during the trial. Motions in limine, however, can be made during trial and typically happen when you learn that the other side is about to bring evidence into the trial and, at the last minute, you want to ask the judge to keep out, i.e. you make a motion in limine.

When you make your motion in limine, it is usually done in writing, and will have the specific evidence you want excluded from trial. Most motions in limine, however, that I have seen from other attorneys forget to be specific and instead become too general for the judge to decide on whether to grant or deny the motion. A typical too general of motion in limine, for example, is one that asks the judge to exclude all evidence not produced before trial. Although it is a reasonable motion to make because it is not fair to guess what evidence will suddenly pop up at trial, this type of motion is too general for the judge to know what evidence was or was not produced during trial. A better way to make this motion is to be specific and ask the judge to exclude the specific evidence you think will be brought to trial. A specific motion in limine, for example, is to make a motion in limine to exclude any photographs of vehicle in accident not produced during discovery. With this motion, the judge can cut to the chase, and find out within minutes what photographs of the vehicle were produced and were not produced. Then, the judge can make his ruling, by either granting, denying or reserving a decision until during trial.