CELA AMICUS BRIEFS

DURAN vs. UNITED STATES BANK, NATIONAL ASSN.

CELA's letter to the California Supreme Court requesting depublication of the opinion filed February 6, 2012.

LAWLER vs. 24 HOUR FITNESS USA, INC.

CELA's letter to the California Court of Appeals, Second Appellate District, requesting publication of the opinion filed December 7, 2011.

LEWIS vs. 24 HOUR FITNESS USA, INC.

CELA's letter to the California Court of Appeals, Second Appellate District, requesting publication of the opinion filed November 3, 2011.

WILLS v. SUPERIOR COURT

CELA's letter to the California Supreme Court arguing for depublication of the Fourth District's April 13, 2011, decision in Wills v Superior Court (2011) 195 CA4th 143, (as modif. on denial or rehearing, 5/12/11), argues that: (1) the decision contains the overbroad holding that the "threatening" nature of disability-caused misconduct, as subjectively perceived, always provides a non-discriminatory reason for discipline or discharge; (2) the opinion undermines the well-established principle that there are times when an employer must accommodate performance issues that are manifestations of a disability; and (3) the decision elevates form over substance in holding that claims for failure to engage in an interactive process, and for failure to accommodate, were not administratively exhausted because the administrative complaint referred only to disability discrimination.

HARRIS vs. CITY OF SANTA MONICA

Amicus brief urging the California Supreme Court not to adopt a "mixed motive" defense to California Fair Employment and Housing Act claims that would permit employers to avoid liability for proven acts of discrimination by convincing the trier of fact that they would have taken the same action even if the employee's protected status had not been a motivating factor in its decision.

KURIAN vs. U.S. MORTGAGE CAPITAL, INC.

Letter by CELA to Justice Manella of the Second District requesting that the Court publish its June 16, 2008 opinion in Kurian v. U.S. Mortgage Capital, Inc., (B201013; 2008 WL 2405998), construing Labor Code section 206.5, which provides that "no employer shall require the execution of any release of any claim or right on account of wages due, or to become due, or made as an advance on wages to be earned, unless payment of such wages has been made."

REID vs. GOOGLE

Amicus brief urging the California Supreme Court to reject the "stray remarks" doctrine, which would permit the trial court in ruling on a motion for summary judgment to disregard isolated discriminatory remarks or comments unrelated to the decisionmaking process as insufficient to establish discrimination.

MURPHY vs. KENNETH COLE PRODUCTIONS

Amicus Brief by CELA urging reversal of First District's decision in Murphy vs. Kenneth Cole Productions. Payments for missed meal and rest breaks under Labor Code section 226.7 are wages, not penalties, and claims are therefore subject to three-year rather than one-year limitations period.

GENTRY vs. SUPERIOR COURT (CIRCUIT CITY STORES)

Amicus Brief by CELA and several labor unions urging reversal of Gentry v. Superior Court (Circuit City Stores). Class action preclusion in arbitration agreement is unlawfully exculpatory, violative of public policy, and procedurally and substantively unconscionable. Unconscionability is not eliminated by opt-out clause, and potential value of individual named plaintiff's claim should have no bearing on enforceability of contractual class action prohibition.

ADVANCED BIONICS CORPORATION vs. MEDTRONIC, INC.

(on appeal after a decision of the Court of Appeal, Second Appellate District, Division One, Nos. B144465 and B144920). California Business and Professions Code Section 16600 outlaws restrictions on employees competing with their employers after their employment ends. Courts have developed a "narrow restraint" exception to this rule, allowing employers to impose trade restraints on a "minor part of the market." CELA's amicus brief argues that this exception should be abolished or narrowly construed.

ARMENDARIZ vs. FOUNDATION HEALTH PSYCHCARE SERVICE, INC.

(on appeal after a decision of the Court of Appeal, First Appellate District, Division One, No. S 075942). This is CELA's amicus brief on mandatory arbitration of employment disputes. The brief argues that requiring employees to give up their right to a jury as a condition of work should be against "public policy." Employer created arbitration agreements violate employees' constitutional and statutory rights and puts employees at a severe disadvantage. These agreements have been proven to be grossly inferior, ineffective, exorbitantly expensive and inappropriate as a method for employees to enforce their statutory rights.

CARRISALES vs. DEPT. OF CORRECTIONS

(S073601, letter to California Supreme Court requesting review or depublication of decision published at 65 Cal.App.4th 1492). CELA's letter brief argues that a "hands on" sexual harasser should be personally liable under FEHA whether or not he is a supervisor.

CAVALIER vs. HOLDEN

(Court of Appeal, Second Appellate District, Division One, No. B115206, Orange County Superior Court No. BC-074336). This CELA brief argues that plaintiffs' declarations in opposition to summary judgment motions should be allowed to clarify, elaborate on and add to deposition testimony. This argument is supported by a discussion of defense abuses in taking plaintiff depositions and using them in summary judgment motions. The brief also includes a helpful description of the continuing violation doctrine as set forth in cases such as Watson v. Dept. of Rehabilitation (1989) 212 Cal.App.3d 1271, 1290-1291 and Accardi v. Superior Court (1993) 17 Cal.App.4th 341.

CITY OF MOORPARK vs. SUPERIOR COURT

(Petition for review from Court of Appeal, Second Appellate District, Division Six, No. B093952). This CELA amicus brief urged the California Supreme Court to rule that workers who are discriminated against because of their work related disability may sue under FEHA, without preemption by the California Workers Compensation Act. The plaintiff had suffered from bilateral carpal tunnel syndrome, caused by the rapid and repetitive motion in her work environment.

CUMMINGS vs. AUTOMOBILE CLUB OF SO. CAL. (Court of Appeal, Second Appellate District, Division Seven, No. B151808). CELA's amicus brief argues that exempt status for wage claims may properly be decided on a classwide basis.

ERVIN vs. NORTHROP GRUMMAN

(Court of Appeal, Second Appellate District) (LA Superior Court No.BC-171550). Wrongful termination of a 14 year employee with outstanding performance, who was diagnosed with a physical disability and was accommodated for over two years. Northrup took away the reasonable accommodation of Mr. Ervin's condition, refused his return to work, then a new manager made a snap decision to fire him. "Mr. Dallman said straight out he would not accept Mr. Ervin because of Mr. Ervin's medical restrictions." The Court erred in granting defendant's motion for summary judgment by improperly excluding the direct evidence of discriminatory intent from consideration. FEHA requires employers to make reasonable accommodation for known physical disabilities of employees (including phlebitis and cellulite).
Appellant's Reply Brief

GREEN vs. CITY OF LOS ANGELES

(S075226, letter to California Supreme Court requesting review of Court of Appeal decision overturning jury verdict). This argument by CELA focuses on the importance of circumstantial evidence of employment discrimination. The letter brief notes that employees may prevail on discrimination claims whether they are "superstars" or simply adequate performers.

HENLY vs. PHILIP MORRIS (AO86991, letter to California Supreme Court requesting publication of Court of Appeal decision on punitive damages). The Court of Appeal rejected a rigid fixed maximum ratio between punitive and compensatory damages, disagreeing with language from In Re The Exxon Valdez (9th Cir. Nov 7, 2001) __ F.3d __, 01 CDOS xxx . CELA argues that Henly should be ordered published.

INDIAN HEAD WATER COMPANY, INC. vs.SUPERIOR COURT FOR LOS ANGELES COUNTY

(Court of Appeal, Second Appellate District, Division 2, No. B146565). CELA's amicus brief successfully arguing that exempt status for wage claims may properly be decided on a classwide basis.
CELA'S LETTER REQUESTING PUBLICATION

LANE vs. HUGHES AIRCRAFT COMPANY

(review from Court of Appeal, Second District, Division Seven, No. B090258). CELA challenges the trial court's decision to grant a new trial to defendant, after a unanimous jury verdict finding discrimination. This amicus brief reminds the Court that few bigots admit to discriminating, evidence of discrimination is normally circumstantial, and some trial judges are blind to the existence of discrimination.

LAZAR vs. SUPERIOR COURT

(Court of Appeal, 2nd District Civ. No. B083795). CELA's brief argues that an employee who is subjected to fraudulent conduct by his employer should be allowed to sue both under statute, Labor Code Section 970, and on his common law claim under Tameny v. Atlantic Richfield (1980) 27 Cal.3d 167.

RENO vs. BAIRD

(California Supreme Court No. S065473, review from Court of Appeal, First District, Division Two, Civil No. A075578, Solano County Superior Court No. L003221). This CELA brief argued, unsuccessfully, that individual perpetrators of discrimination should be held personally liable for that discrimination under FEHA. (Harrassors and retaliators are already generally personally liable under FEHA for their discriminatory conduct.)

RICHARDS vs. CH2M HILL, INC.

(No. S087484, on appeal from published Court of Appeal decision). CELA's amicus brief on three issues in this FEHA failure to accommodate disability case: the continuing violation doctrine exception to the statute of limitations, the nature of the duty to reasonably accommodate, and the availability of front pay damages after the employee quits when there is no claim of constructive discharge.

ROSENMAN vs. CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL & SHAPIRO

(Court of Appeal, Second Appellate District, Division Seven, No. B131078). CELA's amicus brief about standards strictly limiting award of attorneys' fees to defendants in civil rights cases.

SALAZAR vs. DIVERSIFIED PARATRANSIT, et al. (Court of Appeal, Second Appellate District, Division Three, No. B142840). CELA's amicus brief argues that employers are liable under FEHA if they knowingly knowing allow third parties, such as customers, to sexually harass employees.

SCOTT vs. PACIFIC GAS AND ELECTRIC COMPANY

(California Supreme Court No. S042601, review from Court of Appeal, First Appellate District, Civil No. A058546). CELA successfully contended that employers should be liable for wrongful demotion where this violates an implied in fact agreement not to demote without good cause.

SHEPPARD vs. FREEMAN

(S074936, letter to California Supreme Court requesting review or depublication of decision). This letter brief by CELA addresses the individual liability of an individual who allegedly wrote a written report of plaintiff's performance which was false in all material respects, and then altered the date of the review to coincide with the termination date.

STAFFORD vs. SIPPER

(letter to California Supreme Court requesting depublication of decision published at 65 Cal. App. 4th 748). The published decision limited an award of attorneys' fees pursuant to Civil Code Section 1717 to contingency fees, rather than hourly fees. Section 1717 allows one party to a contract to recover attorneys' fees for breach of contact if the contract allows the other party to obtain such fees. The letter reminds the Court that in public policy cases, including Title VII cases, plaintiffs' attorneys may recover hourly fees from defendants even where higher than contingency fees. E.g., Blanchard v. Bergeron (1989) 109 S. Ct. 939, 945.

STEVENSON vs. SUPERIOR COURT

(Court of Appeal No. B089375). CELA argued successfully that there is a common law cause of action for age discrimination, expanding the holding of Rojo v. Kliger (1990) 52 Cal.3d 65.

24 HOUR FITNESS vs. SUPERIOR COURT

(letter to California Supreme Court requesting depublication of decision published at 66 Cal. App. 4th 1199, Court of Appeal, First Appellate District, Division Three). This letter brief by CELA attacks the enforceability of a purported predispute arbitration agreement. The employee signed acknowledgment of an employee handbook, which contained a section about arbitration which the employee never read, which in turn referred to yet a third document, the "Employment Arbitration Procedure Manual," which the employee never possessed.

WEST vs. BECHTEL (letter to California Supreme Court requesting depublication of decision published at ___ Cal. App. 4th ___, March 6, 2002). CELA requests depublication of decision holding Bechtel not liable for violating FEHA for discriminating against older employee to cater to preferences of its customer, the government of Saudi Arabia.

WHITE vs. ULTRAMAR

( No. S070177, on appeal after a decision of the Court of Appeal, Fourth Appellate District, Division One). This is CELA's amicus brief on the definition of "managing agent" for purposes of holding a corporate employer liable for punitive damages.