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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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Disclosing Plaintiff’s Immigration Status To The Jury Was Reversible Error
 
Velasquez v. Centrome
(Ct. of App. 2nd Dist.), filed January 30, 2015

Wilfredo Velasquez sued Centrome, Inc. after he developed lung disease from workplace exposure to diacetyl, a flavor compound with known risks to the respiratory system. After a motion in limine hearing, the trial court found that Velasquez’ status as an undocumented immigrant was relevant to his ability to receive a lung transplant. As a result, during jury selection, the trial court told prospective jurors Velasquez was an undocumented immigrant. The trial court later decided to exclude the evidence of Velasquez’ immigration status, finding that it was prejudicial. The jury ultimately found that Centrome’s negligence was not a substantial factor in causing Velasquez’ lung cancer. Velasquez argued that the jurors were prejudiced because they knew he was not a legal immigrant. The trial court denied Velasquez’ motion for new trial. On appeal, the Court agreed that “when an undocumented immigrant plaintiff files a personal injury action, but does not claim damages for lost earnings or earnings capacity, evidence of his or her immigration status is irrelevant.” The Court of Appeal also held that Velasquez’ immigrant status was irrelevant to whether he would be eligible for a lung transplant since alienage was not considered in a transplant decision. Since the trial court ultimately recognized the prejudice inherent in informing the jury of Velasquez’ immigration status, it should have declared a mistrial.






Award To Homeowner Who Experienced Low-Level Shocks Overturned
 
Wilson v. Southern Cal. Edison Co.
(Ct. of App. 2nd Dist.), filed February 9, 2015

A jury awarded over $4 million dollars to Simona Wilson for her intentional infliction of emotional distress, nuisance, and negligence claims against Southern California Edison. Wilson alleged that Edison failed to properly maintain her neighbor’s electrical substation, resulting in electrical currents in Wilson’s home. While Edison previously offered to change Wilson’s piping to eliminate voltage shocks in Wilson’s master bedroom shower, Wilson had refused and insisted that Edison eliminate all stray voltage. Although it rejected Edison’s claim that the Public Utilities Commission had jurisdiction over the lawsuit, the Court of Appeal reversed the judgment. It found that Wilson did not present sufficient evidence to support her distress claim since there was no evidence that her alleged physical ailments were caused by the electricity in her shower. Also, since Edison responded to all Wilson’s complaints, Wilson could not show that Edison’s conduct was “so extreme as to exceed all bounds of that tolerated in a civilized community.” The Court found that the negligence claim also failed. It was undisputed that stray voltage was an unavoidable byproduct of grounding, so Edison did not breach a duty owed to Wilson by failing to eliminate all stray voltage at Wilson’s home. The Court also held that the nuisance claim must be retried since the trial court refused to give the jury an instruction on the causation of Wilson’s physical symptoms. Finally, the punitive damages award was reversed because there was “no substantial evidence that an Edison managing agent authorized or ratified any alleged malicious, oppressive, or fraudulent conduct.”






Reasonable Accommodation Requirement Does Not Require Employer To Cut Essential Job Functions
 
Nealy v. City of Santa Monica
(Ct. of App. 2nd Dist.), filed January 21, 2015

Former Solid Waste Equipment Operator Tony Nealy filed a lawsuit against the City of Santa Monica for disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, and retaliation. The trial court granted the City’s summary judgment motion. Nealy injured his knee in 2003 and was totally disabled until 2005 when his doctor released him to light work duty. After discussing his necessary job accommodations, Nealy began working as a groundskeeper. A few months into the job, Nealy’s knee began buckling on stairs without railings. The City amended Nealy’s essential job functions to deal with his knee issues, and Nealy’s doctor said that he could perform his groundskeeper position without restrictions. The City, however, started to find Nealy an alternative position as an equipment operator. Nealy’s doctor said Nealy could not empty heavy trash cans by hand -- which was an essential job function. Later, Nealy injured himself again and there were no open positions available which fit his restrictions. On appeal, Nealy argued that the City should have restructured his former position to allow him to return to work. That is, Nealy could have operated at least one of the available vehicles, and that requiring the ability to operate all four vehicles was not an essential job function. But the Court of Appeal found that the “elimination of an essential function is not a reasonable accommodation.” The Court also held that Nealy’s reasonable accommodation claim failed because the City considered all of Nealy’s restrictions and discussed them -- there just was not an available position to fit Nealy’s qualifications. Finally, in affirming the trial court’s judgment, the Court of Appeal noted that requesting a reasonable accommodation was not a protected activity for Nealy’s retaliation claim.






OTHER CASES OF INTEREST:


After-Acquired Evidence That Disqualified Employee From Position Is Not A Complete Bar To Discrimination Suit
 
Horne v. International Union of Painters & Allied Trades
(Ct. of App. 1st Dist.), filed February 19, 2015

In 2009 and 2010, Raymond Horne applied for a position as an organizer with the District 16 International Union of Painters and Allied Trades. On both occasions, a white man -- not Horne -- was hired. Horne filed a complaint for race discrimination. During discovery, Horne admitted that he had been convicted and served time for a narcotics possession charge in 1997. The Union demanded that Horne dismiss his lawsuit because, under the after-acquired evidence rule, his convictions made him ineligible for the organizer position. Horne disputed that his conviction made him ineligible since the Union did not know about this evidence until after it refused to hire him. Horne also argued that despite his narcotics charge, he regained his citizenship rights by the time he applied for the organizer position in 2010. The Union’s summary judgment motion was granted. On appeal, the Court found that because Horne’s conviction prevented him from possessing a firearm -- a citizen’s right -- that Horne’s rights had not been restored under California law when he applied for the organizer position. Heavily relying on the California Supreme Court’s rule in Salas v. Sierra Chemical, Co., 59 Cal.4th 407 (2014) decision, the Court of Appeal noted that “the doctrines of after-acquired evidence and unclean hands are not complete defenses to a worker's claims under California’s FEHA, although they do affect the availability of remedies.” That is, the after-acquired evidence would only be “relevant in the damages phase of a FEHA proceeding” and would not apply to remedies, including “reinstatement, promotion, and backpay for periods after the employer learned of the after-acquired evidence.” Therefore, the Court reversed the trial court’s summary judgment ruling.



A Plaintiff’s “Self-Serving” Statements May Defeat An Employer’s Summary Judgment Motion
 
Nigro v. Sears, Roebuck and Co.
(9th Cir. Ct. App.), filed February 25, 2015

Anthony Nigro sued Sears for disability discrimination, failure to accommodate, failure to engage in the interactive process, and wrongful termination in violation of public policy in connection with his ulcertative colitis condition. The District Court granted Sears’ summary judgment motion. The Ninth Circuit found that the District Court erred when it rejected Nigro’s declarations opposing Sears’ summary judgment because they were “self-serving.” The Court found that Nigro’s testimony would be sufficient to establish a genuine dispute of material fact regarding Sears’ discriminatory animus. Nigro’s declaration and deposition testimony showed that Nigro’s manager’s comments regarding his sickness as well as his refusal to accommodate a later start time showed Sears’ unwillingness to accommodate. Similarly, Nigro’s discussions with management that he needed accommodations could lead a reasonable jury to find that Sears failed to engage in the interactive process. While the Ninth Circuit commented that Nigro’s statements would have limited weight without corroboration, “the weight is to be assessed by the trier of fact at trial, not to be a basis to disregard the evidence at the summary judgment stage.”



Disentitlement Doctrine Applies To A Trustee’s Repeated Failure To Obey Court Orders
 
Blumberg v. Minthorne
(Ct. of App. 4th Dist.), filed January 27, 2015

Gloria and Ralph Minthorne signed the Minthorne Family Living Trust. Soon after, Mr. Minthorne had a stroke and died. Adam Blumberg was one of Mr. Minthorne’s grandchildren from a prior marriage. Mr. Blumberg and his sister were entitled to proceeds from one of the apartment buildings named in the trust. Mr. Blumberg made several requests for an accounting of the trust. Meanwhile, Mrs. Minthorne sold one of the properties, and took the proceeds to buy another property. A few months later, Mr. Blumberg was advised that his share of the trust was $14,000. Mr. Blumberg filed a petition, alleging that Mrs. Minthorne had mishandled the apartment building administration and sale, wrongfully sold the property, and failed to provide an accounting for the trust. Ultimately, the court found that Mrs. Minthorne was liable to Mr. Minthorne’s children and grandchildren. Mr. Blumberg replaced Mrs. Minthorne as the trustee and the court ordered Mrs. Minthorne to re-convey the property and prepare an accounting. Mrs. Minthorne appealed and failed to obey the court’s order. Instead, she quitclaimed the property to her daughter. The court set a hearing to order Mrs. Minthorne to either quitclaim the property to Mr. Blumberg or file an undertaking. She failed to do so, or even appear at the hearing. Mr. Blumberg filed a motion to dismiss the appeal. The Court of Appeal applied the “disentitlement doctrine” to dismiss an appeal “by a party that refuses to comply with a lower court order.” The rationale behind the disentitlement doctrine is that a party cannot “ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state.” The Court held that since Mrs. Minthorne had “frustrated the attempts of the court to legitimately affect its own orders,” Mrs. Minthorne’s appeal was dismissed.

 

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