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Berger Kahn's monthly e-publication 
The most important court decisions of the month
Welcome to Berger Kahn's monthly e-publication summarizing the most important California state and federal court decisions.

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Employee's Violent History Was A Valid Nondiscriminatory Reason For Termination
 
Curley v. City of North Las Vegas
(US Ct. of App. 9th Cir.), filed December 2, 2014

Michael Curley sued the City of Las Vegas for disability discrimination, alleging hearing impairment related discrimination and retaliation for filing an EEOC complaint. The District Court granted the City’s summary judgment motion and Curley appealed. Curley had worked for 13 years as a pretreatment inspector. Over the years, Curley received many oral and written reprimands for verbal altercations, insensitive remarks, damaging City property, and making violent threats against his coworkers. Curley initially filed a complaint with the EEOC, claiming among other things that the City had refused to accommodate him for his hearing impairment. He later claimed that the truck noise caused his hearing to deteriorate. Curley asked to be removed from any duties that required him to be near that type of truck. But because this was an essential function of his position, the City denied his request and instead, recommended he use hearing protection. Shortly after, Curley was involved in a fight with a co-worker which prompted the City’s investigation. As a result, the City scheduled a fit-for-duty assessment and ultimately decided to fire Curley. Curley sued, and the City moved for summary judgment. Curley argued that he was considered fit for duty. But the Court found that Curley was properly terminated for his past violent threats -- and not the risk of future violence. And the City had other reasons, including nonperformance of duties, as reasons for his termination. While the Court acknowledged there may be a close temporal proximity between his EEOC complaints and his termination, the City’s investigation defeated any inference that the two were connected. Therefore, the Ninth Circuit affirmed the District Court’s order granting summary judgment in the City’s favor.






Employee Who Disclosed Kickback Scheme Could Maintain Wrongful Termination In Violation Of Public Policy
 
Ferrick v. Santa Clara University
(Ct. of App. 6th Dist.), filed December 1, 2014

Linda Ferrick worked as a senior administrator in Santa Clara University’s real estate department. She witnessed and reported many instances of her immediate supervisor, Nick Travis embezzling funds, engaging in kickback schemes, evading taxes, misdirecting public monies, making false representations in real estate deals, violating state code controlling licensed realtors, and threatening public health and safety. Travis asked Ferrick’s son-in-law to procure a truck for the department. When Ferrick processed the bill, she changed the total to reflect what she believed to be the correct price. Her son-in-law refunded the difference, but Ferrick was placed on administrative leave and later terminated. She sued, claiming that she was fired in violation of public policy. The court sustained Santa Clara’s demurrer to the complaint without leave to amend because the complaint failed to show how Ferrick was terminated in violation of public policy. The trial court noted that the complaint did not show how the supervisor violated laws which would affect the public benefit. On appeal, Ferrick argued that Travis had violated Penal Code section 641.3 (commercial bribery) and California Code of Regulations, title 22, section 926-3 (taxable value of lodging). In particular, Ferrick described a kickback scheme Travis was running where he would receive a 3% fee for every tenant he placed in a certain building. Rejecting the other factual contentions, the Court reversed the judgment and held that Ferrick had a reasonable basis to suspect commercial bribery since she disclosed her suspicions. Taken liberally, Ferrick’s allegations would state a tort cause of action for wrongful termination in violation of public policy.






Restaurant With Dangerous Parking Lot May Be Liable For Patron's Death
 
Annocki v. Peterson Enterprises
(Ct. of App. 2nd Dist.), filed November 14, 2014; pub. order December 5, 2014

Joseph Annocki was driving his motorcycle on Pacific Coast Highway. Terry Turner was driving out of a restaurant parking lot when his vehicle hit Annocki. Annocki’s parents sued Peterson Enterprises who operated the restaurant. The parking lot opened to Pacific Coast Highway where a temporary padded divider sat in the median. The parents alleged that Turner was confused when he exited the parking lot and tried to make a left hand turn onto the highway (rather than a right turn). Annocki’s parents alleged that Peterson failed to adequately staff the parking lot and that there was no available attendant to help patrons safely exit the parking lot. They further alleged that the parking lot created a danger of decreased visibility and that there should have been signage to direct patrons to the safest exit and emphasize that only right turns could be made onto the highway. Peterson demurred, arguing that it had no duty to warn of any alleged dangerous conditions on the highway and that it had no duty to post signs since Annocki’s parents had not alleged that the accident was foreseeable. The trial court sustained Peterson’s demurrer. But the Court of Appeal disagreed. It held that “the property configuration here allowed restaurant patrons to leave [the] premises in a manner that was unsafe to themselves and others.” Peterson also had a “duty to warn patrons of the danger in exiting its parking lot as it was on notice of the dangerous conditions of the highway and the risk it posed to patrons leaving the restaurant as well as the danger to persons traveling the highway from a patron exiting the lot in an unsafe manner.” The Court of Appeal reversed the judgment to allow Annocki’s parents to amend their complaint to allege additional facts to establish Peterson’s duty.






OTHER CASES OF INTEREST:


Doctor's Non-Economic Damages Assessment Cannot Be Offset By Pre-Trial Settlement

Rashidi v. Moser
(Cal. Sup. Ct.), filed December 15, 2014

Hamid Rashidi became permanently blind in one eye after Dr. Franklin Moser performed his nose surgery. Rashidi sued Moser and Cedars-Sinai for medical malpractice and battery. He also sued Biosphere Medical for product liability, failure to warn, negligence per se, breach of express and implied warranty and misrepresentation. Rashidi settled with Biosphere for $2 million and Cedars-Sinai for $350,000 and the case went to trial against Dr. Moser alone. The jury found that Dr. Moser’s negligence caused Rashidi’s injury and awarded future medical care, past economic damages, and future noneconomic damages. The court ultimately reduced the non-economic damages to $250,000 to conform to the required cap. Moser moved for offsets for the pre-trial settlements, but the trial court rejected his claim. The Court of Appeal, however, held that when the pretrial settlement did not differentiate between economic and noneconomic damages offsets were required because “the amount attributable to the joint responsibility for economic damages may be used as an offset.” The California Supreme Court granted Rashidi’s petition for review. The Court noted that noneconomic damages are “only ascertainable at trial.” It also agreed with Rashidi’s argument that “if non-settling defendants were assured of an offset against noneconomic damages regardless of their degree of fault, an agreement with one defendant would diminish the incentive for others to settle.” Ultimately, the California Supreme Court concluded that the $250,000 cap on noneconomic damages imposed by Section 333.2, applied “only to judgments awarding noneconomic damages” and therefore, the Court of Appeal erred in allowing Dr. Moser to have a setoff against damages “for which he alone was responsible.”

 

Our Dedicated Key Decisions Team! 
 

Lance LaBelle
Orange County


David Ezra
Orange County


Ann Johnston
S. F. Bay Area


Roberta Winston
San Diego
 
 
Hear Us Speak!

 
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