Art of Law

Robert Chavez v. City of Los Angeles is an excellent example of why employers must understand Fair Employment Housing Act (“FEHA”) and other employment law statutes. After five years of litigation involving a case worth $11,500, the employer will most likely have to pay both its attorney’s fees and the employee’s attorney’s fees. Assuming both parties will have legal bills and costs totaling 1 million dollars, total cost to the employer for one small mistake could be over two million dollars.

At issue in Chavez was five days of lost pay and benefits, alleged emotional distress, and punitive damages. (A week’s worth of pay). Finding for the employee, a jury awarded Mr. Robert Chavez $11,500 in damages. Because he was the prevailing party, Mr. Chavez filed a motion seeking approximately $871,000 in attorney fees under FEHA.

The City argued it did not have to pay the attorney’s fees because the employee’s attorney made a procedural error by classifying the case as an unlimited civil case with a value greater then $25,000. The trial court agreed with the City and threw out the entire Award of attorney’s fees based on Civil Code of Procedure Section 1033.

The Appeals Court examined the purpose of attorney’s fees under FEHA. It opined that, “notwithstanding FEHA’s neutral language, courts award attorney fees to a prevailing plaintiff as a matter of course unless special circumstances render an award unjust; but a prevailing defendant recovers fees only if an action is found to be “‘unreasonable, frivolous, meritless or vexatious.”

Further, “FEHA’s attorney fee provision is designed to ease the financial burden on a plaintiff of limited means to enable the plaintiff to find representation to sue to vindicate a significant public policy. It provides assurance to an attorney whose client prevails that the attorney will be paid a reasonable fee, unless special circumstances make a fee award unjust. That assurance is not predicated on the size of the jury’s award. In FEHA actions, it is not uncommon for fee awards to greatly exceed the amount of the verdict. … Unless a victory is merely technical or “de minimis” and does not serve a public purpose, federal and state courts almost uniformly refuse to link the size of a fee award to the amount of damages a plaintiff recovers.”

The Appeals Court held that the trial court’s reliance on Civil Code Section 1033 was flawed and remanded the matter for a further determination of what are reasonable attorney’s fees under FEHA. Assuming this matter goes back to the trial court and it reduces the Award of attorney’s fees, the employer is still going to pay over a million dollars for a week’s work of disputed pay.

In City of Garden Grove (“City”) v. Superior Court of Orange County, a City police officer stopped Defendant Felix Kha (“Kha”) for failing to yield at a red light. Sitting on the front seat was a cloth bag. After consenting to the search, the officers discovered the cloth bag contained a pipe and 8.1 grams of marijuana in a container marked medical marijuana. The prosecutor dropped the charges against Kha because he had a doctor’s approval to use the marijuana. However, the City refused to return the marijuana because it is an illegal substance under federal law.

The Fourth District Court of Appeals began its analysis by defining a police department’s legal relationship to seized property as that of a custodian. It then examined the obligations imposed by federal and state law on the City and the Courts.

Quoting various US Supreme Court cases, it concluded that “the structure and limitations of federalism . . . allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons. This includes the power to decide what is criminal and what is not.” “[I]f the court determines the defendant was in lawful possession of the drugs, then they may not be destroyed at all. The state governmental entity, “cannot do indirectly what it could not do directly. That is what it seeks to do in destroying [Defendant’s] marijuana when it cannot punish him under the criminal law for possessing it. … Unless the substance’s possession is also prohibited under state law, the state has no authority to invoke the sanction of destruction set forth in the statute.”

It then held that the principals of due process compels it to return the medical marijuana to the defendant.

Interestingly, the court places weight on the amount of marijuana possessed by the Defendant. In dictia, the court concluded that people seeking the return of their medical marijuana are not entitled to possess quantities that would make them likely candidates for federal prosecution. (It notes that federal prosecutors mostly pursue “cases involving 500 indoor plants or 1,000 outdoor plants, or the possession of more than 1,000 pounds of the drug.”). It concludes there is minimal if any overlap between federal and state enforcement efforts.

Medical marijuana is legal under California State Law, but illegal under Federal law. It is the latest front in the 200 year war known as federalism. At issue in Ross v. Raging Wire, Inc. was whether an employee could bring a lawsuit against his former employer for firing him for taking medical marijuana.

The facts are straight forward. The employee’s work required him to take a drug test. He was taking medical marijuana for a back condition caused by his Army Service. He gave the employer a copy of the prescription prior to the testing. When the drug test came back positive for THC, the employer fired the employee.

The employee sued his former employer alleging wrongful termination and violation of the California Fair Employment Housing Act (FEHA). All seven justices held the public policy delineated in the Compassionate Use Act is not “deemed sufficiently fundamental and substantial to support a common law wrongful discharge claim.” However, the Justices split five to two on the issue of whether the employee could sue the employer for a violation of FEHA.

FEHA imposes a duty on employers to provide reasonable accommodations to a disabled worker. Because medical marijuana is illegal under federal law, an employee “cannot be said to fully enjoy a right under state law to use marijuana as a medical treatment.” It then held that “…FEHA does not require employers to accommodate the use of illegal drugs.” Since there is no duty to accommodate, the employee has no right to sue the employer for wrongful termination.

The interesting part of the decision is the language the majority uses in coming to their holding. They state that, “California’s voters merely exempted medical users and their primary care givers from criminal liability under two specifically designated state statutes.” There is an argument this language limits care givers and patients right to possess marijuana.

Throughout the legal system, the courts are grappling with how treat the legal enigma of medical marijuana. It will be interesting to see how the courts construe the majority’s language in other contexts such as workers’ compensation, family law, private nuisance actions and landlord tenant disputes.

The Santa Rosa Press Democrat and Law.com both ran stories on the real world ramifications of making online statements. The moral of both these stories is if you don’t want the rest of the world to know your thoughts, don’t type them.

New Jersey state law requires health insurance companies to cover mental illness only if it is biologically based. Law.Com reports in its February 1, 2008 article titled MySpace, Facebook Pages Key to Dispute Over Insurance Coverage for Eating Disorders that Horizon Blue Cross Blue Shield is being sued by multiple plaintiffs for denying health coverage to teenage girls with eating disorders.

The insurance carrier alleges the eating disorders were cause by environmental factors. They further allege the girls’ online writings provide proof the eating disorders were not biological. Consequently, they made formal discovery requests for copies of the girls’ MySpace and Facebook pages.

The Santa Rosa Press Democrat provides a summary of the core issue. “’ The pressure is insane for girls, to be exhibitionists. The whole point of MySpace is to establish a celebrity stature, to accumulate as many friends as possible for people to view your page and rate it.’” “Some teens post bulletins filled with inflammatory rhetoric or rewrite their profiles to say what it is they don’t like about someone else. … This can lead to unintended consequences.” (Teens pushing boundaries of Privacy, Santa Rosa Press Democarat, 2/1/2008).

In other words, the teens are spewing raw emotion and fantasies to create a false popularity. The question that arises is how much of the illusion created by a mentally ill minor can be used as evidence in a court of law?

The San Diego Union Tribune’s recent article Analysis: Downtown Juries lack Latinos alleges: “The system for summoning jurors in San Diego is so flawed that one of every two eligible Latino jurors is never called to serve on a jury downtown… .”

Based on population statistics, the researchers expected that 19% of jurors would be Hispanic. However, of the 4,241 Jury surveys collected, only 9.6% of the jurors declared themselves Hispanic. The conclusion that can be drawn from the data is that on average there was one Hispanic juror instead of two on every 12 person jury. However, there is still Hispanic representation on every jury.

The article goes on to explain the researchers belief that the reason for the discrepancy is because too many jurors are dropped from a master list. The master list is created when a company that contracts with the court, “strike[s] out duplicate names, names of people who have died or who are permanently excused. … The Court also uses ZIP codes to determine which courthouse a juror is supposed to report to.”

The court system is continuously challenged with the question of how to assure representation by the people for the people. It is asked to answer the questions of whether voting districts and school populations accurately reflect the demographics of a represented population.

This case presents a number of interesting questions. Zip codes are tied to neighborhoods. Neighborhoods are tied to class. Will the Court decide this is a matter of wealth discrimination or is it race discrimination? How closely does the jury pool need to mirror the racial make-up of the community? Finally, if the Court finds there are errors with the jury pool selection process, what is the remedy? Of course, there is also a possibility the court will find all the allegations to be non-issues.