Contributors

Monday, June 17, 2019

Conger v. Co. of LA

The Los Angeles County Sheriff ’s Department (the Department) rescinded appellant Thomas L. Conger’s probationary promotion to lieutenant based on investigatory findings that Conger had failed to report a use of force several months before the Department promoted him to the probationary position.  After unsuccessfully pursuing administrative remedies, Conger filed a petition for a writ of mandate in the trial court claiming that rescinding his promotion based on alleged conduct occurring before he was elevated to his probationary position constituted a demotion or a “denial of promotion on grounds other than merit,” thus entitling him to an administrative appeal under Government Code section 3304, subdivision (b), a provision of the Public Safety Officers Procedural Bill of Rights Act (POBRA) (§ 3300 et seq.).  Conger requested that the trial court issue an order directing the County of Los Angeles (the County), as well as its Civil Service Commission, Board of Supervisors, and Chief Executive Officer (collectively, respondents) to provide him that administrative appeal. 

The trial court denied the petition, ruling that the Department properly could consider Conger’s pre-probationary conduct in rescinding his probationary promotion, and that the decision to rescind the promotion based on Conger’s failure to report a use of force was merit-based. 

We agree with the trial court that the Department’s decision to deny Conger a promotion was merit-based.  We further conclude that Conger has failed to show that the written evaluation detailing his unreported use of force will impact his career adversely in the future apart from the loss of his probationary position.  Accordingly, we affirm the judgment.

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Friday, June 14, 2019

Doe v. Superior Court

Plaintiff/petitioner Jane Doe, a student-employee in the campus police department at Southwestern College, brought claims relating to sexual harassment and sexual assault against defendants/real parties Southwestern Community College District and three District employees.  Her complaint also alleged sexual harassment of two other female District employees, which was presumably relevant to Doe's allegations because it provided notice to the District regarding similar misconduct by at least one of the involved employees, campus police officer Ricardo Suarez.  Before her noticed deposition could take place, one of those female employees, Andrea P., was contacted by one of Doe's lawyers, Manuel Corrales, Jr.  When they discovered this contact, defendants moved to disqualify Corrales for violating Rule 4.2 of the California State Bar Rules of Professional Conduct, which generally prohibits a lawyer from communicating with "a person the lawyer knows to be represented by another lawyer in the matter."  The trial court granted the motion.

Although the District offered to provide counsel for Andrea, there is no evidence that at the time of the contact she had accepted the offer or otherwise retained counsel.  Corrales does not dispute that he knew the District was represented by counsel, or that Andrea was a District employee.  Whether he violated Rule 4.2 thus turns on subdivision (b)(2), which indicates that "[i]n the case of a represented . . . governmental organization, this rule prohibits communications" with a current employee of the organization, "if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability."  (Ibid., italics added.) 

In this case, Corrales contacted Andrea to discuss evidence of other alleged acts of sexual harassment by Suarez.  Her role was as a percipient witness.  To the extent her acts were discussed, Doe is not seeking to hold the District liable for what Andrea did.  If she reported acts of sexual harassment to the District, Doe would seek to impose liability for what the District did not do in response.  Likewise, if Andrea did not report the harassment, it might be evidence that the District's sexual harassment policies were inadequate.  The purpose of Rule 4.2 is to prevent ex parte contact with employees who engaged in acts or conduct for which the employer might be liable.  It is not designed to prevent a plaintiff's lawyer from talking to employees of an organizational defendant who might provide relevant evidence of actionable misconduct by another employee for which the employer may be liable.  Accordingly, we will issue a writ directing the superior court to vacate its order disqualifying Corrales as Doe's counsel in this matter.

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Tuesday, June 11, 2019

Ross v. County of Riverside

A prosecutor established a viable claim that he engaged in a protected activity for purposes of Labor Code Sec. 1102.5 where he showed that he disclosed information to people with authority over him which he reasonably believed disclosed a violation of or noncompliance with federal and state law applicable to criminal prosecutions and prosecutors. While the plaintiff did not expressly state in his disclosures that he believed the county was violating or not complying with a specific state or federal law, Sec. 1102.5 does not require such an express statement. A plaintiff arguably has a physical impairment that limited the major life activity of working where it required him to be absent from work periodically over several months to travel to an out-of-state clinic for medical testing.

Ross v. County of Riverside - filed May 20, 2019, publication ordered June 10, 2019, Fourth District, Div. One 
Cite as 2019 S.O.S. 2677 

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Monday, June 10, 2019

Beckington v. American Airlines, Inc.

Employees aggrieved by a union's breach of its duty of fair representation during collective bargaining cannot sue their employer for "colluding" in the union's breach.

Beckington v. American Airlines, Inc. - filed June 10, 2019 
Cite as 2019 S.O.S. 18-15648 

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Amalgamated Transit Union Local 276 v. San Joaquin Regional Transit District

Public Utilities Code Sec. 50150 does not authorize an election by all of a transit district's employees to fill the vacancy of a union representative on the district's retirement board.

Amalgamated Transit Union Local 276 v. San Joaquin Regional Transit District - filed May 8, 2019, publication ordered June 6, 2019, Third District 
Cite as 2019 S.O.S. 2657 

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Thursday, June 6, 2019

Bergelectric Corporation v. Secretary of Labor

A contractor was not performing "roofing work" when it installed solar panels on a roof. Substantial evidence supports a finding that workers were subject to the danger of falling where they were performing work eight to nine feet from the unprotected edge of a roof.

Bergelectric Corporation v. Secretary of Labor - filed June 6, 2019 
Cite as 2019 S.O.S. 17-72852 

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Thursday, May 30, 2019

​ Heimlich v. Shivji

Code of Civil Procedure section 998 creates an incentive for settlement.  It authorizes an award of costs to a party that makes a pretrial settlement offer when the opponent rejects the offer and obtains a lesser result at trial.  (Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1019.)  In 1997, the Legislature amended the statute to make the same incentive available in arbitrations.  (Stats. 1997, ch. 892, § 1, p. 6390; Pilimai v. Farmers Ins. Exchange Co. (2006) 39 Cal.4th 133, 139, 149.)  This case involves the procedures for seeking these costs in arbitration.

We hold a request for costs under section 998 is timely if filed with the arbitrator within 15 days of a final award.  In response to such a request, an arbitrator has authority to award costs to the offering party.  However, if an arbitrator refuses to award costs, judicial review is limited.  The Court of Appeal erred in relying on a narrow exception to those limits, for failure to consider evidence.  We reverse.

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