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Tame year for state Supreme Court

Important rulings on free speech, job discrimination

J. Clark Kelso

By J. Clark Kelso


This is the time of year when, in preparation for teaching fall classes, I clear off the last 12 months’ worth of notes, letters and memoranda from my desk. These writings include highlights from the California Supreme Court’s 2003-2004 term.

All in all, it was a relatively tame year for the court. For example, it is difficult to get too worked up about decisions like Villa de las Palmas Homeowners Association v. Terifaj (2004) 33 Cal.4th 73, where the court held that a common interest development could adopt and enforce by injunction a restriction on pets even against an owner who had purchased property in the development before adoption of the restrictive policy. Dog lovers may find the case objectionable, but when you buy into a common interest development, it is usually clear that the rules can be amended from time to time.

And it is hard to muster much sympathy for the lawyer in Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, who tried to submit and rely upon an out-of-state declaration that omitted the statutorily required statement that the declaration was made “under the laws of the State of California.” Words are important and have real meaning. The court quite properly held that the declaration was invalid under California law.

But amidst these little-noticed chestnuts, we do have a handful of significant and interesting rulings involving employment discrimination, tort liability and free speech. And then there’s a short note to Gov. Schwarzenegger.

California Supreme Court
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Note to all California employers

The Supreme Court held in State Department of Health Services v. Superior Court (2003) 31 Cal.4th 1026, that California’s Fair Employment and Housing Act (FEHA) imposes a tougher standard on employers than federal law in cases of sexual harassment by a supervisor.

For more than 15 years, California cases have held that FEHA imposed strict liability in supervisor sexual harassment cases. Under this standard, it is irrelevant whether the employer had taken reasonable steps to deter or avoid sexual harassment by supervisors. Sexual harassment by a supervisor automatically visited vicarious liability on the employer.

In State Department of Health Services, the court rejected a defense based on federal law that, had it been adopted, would have essentially converted that strict liability into a form of negligence liability. Analogous federal employment discrimination law recognizes a complete defense in supervisor sexual harassment cases on a showing by the employer “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Burlington Industries Inc. v. Ellerth (1998) 524 U.S. 742, 765. Although the burden of establishing this defense is on the employer, the standard for the defense goes a long way towards making employer liability for supervisor sexual harassment a variant of negligence liability.

In support of its decision to reject the federal defense, the court noted that California’s statutory language was substantially clearer than the analogous federal statutes in establishing strict liability for supervisor sexual harassment, and the legislative history supported that stricter interpretation.

Although the court rejected the broad federal defense, it did recognize that damages could be reduced in supervisor sexual harassment cases pursuant to the “avoidable consequences” rule, which is a fundamental rule of damages applicable to virtually all contract and tort cases.

Avoidable consequences in this context can be established by the employer on a showing that “(1) the employer took reasonable steps to prevent and correct workplace sexual harassment; (2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered.” State Department of Health Services, 31 Cal.4th at 1044.

Employers should thus continue to develop and enforce strong policies against workplace sexual harassment (policies which can reduce the likelihood of litigation ever arising in the first place and, if it does arise, reduce the amount of damages). At the same time, employers should not expect their reasonable efforts to insulate them entirely from liability for sexual harassment by supervisors.

Practical tip: Get rid of supervisors who show any hint of inappropriate behavior.

Memo to childcare facilities

Good news. So long as the fence around your playground and property is consistent with all state and local code and safety requirements (e.g., the fence must be at least four-feet tall) and there are no specific reasons to anticipate a criminal attack, there will be no liability when a person with criminal intent deliberately drives a car through the fence, killing several children and injuring several others.

Courts have wrestled for years with the duty to protect a person against the criminal acts of a third party. For a number of years, the rule was that third party criminal acts were not foreseeable absent prior similar incidents. See Wingard v. Safeway Stores Inc. (1981) 123 Cal.App.3d 37, 43. If a location was relatively free from crime, a property owner did not have to worry about liability for injuries suffered at the hands of a criminal. No duty was owed.

The Supreme Court seemed to modify that rule in 1986 so that duty and foreseeability were judged by an examination of “the totality of the circumstances,” Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 127-29. This test made summary judgment in favor of defendants all but impossible since there always seemed to be fact questions to be weighed in the “totality of circumstances.”

Seven years later, in Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, the court “refined” the rule stated in Isaacs to make it clear that the question of whether a duty existed was a legal issue for the court and that the analysis involved a balancing of the foreseeability of the criminal acts against the “burdensomeness, vagueness and efficacy” of possible security measures.

That brings us to this year’s decision in Wiener v. Southcoast Childcare Centers Inc. (2004) 32 Cal.4th 1138. A four-foot-high chain link fence surrounded a childcare center’s playground adjacent to a sidewalk and busy street. A third party driving a large Cadillac intentionally drove through the fence, onto the playground and into a group of children, killing two and injuring others.

A few non-injury traffic accidents had occurred near the property, and there was one unusual accident in 1996 where an out-of-control and driverless mail truck plowed through the fence and stopped only when it hit a tree in the yard (the driver had apparently fallen out of the truck while stretching to reach a mailbox). There was no criminal incident similar to the use of the Cadillac-as-weapon.

The court held there was no duty as a matter of law because “the foreseeability of a perpetrator’s committing premeditated murder against the children was impossible to anticipate, and the particular criminal conduct so outrageous and bizarre, that it could not have been anticipated under any circumstances.” Id., 32 Cal.4th at 1150.

The court rejected the argument that the prior accidents and the mail truck crashing through the fence were indicative of prior similar incidents that made the incident involving the Cadillac foreseeable.

According to the court, when criminal conduct is involved, it is not enough that the basic type of accident be foreseeable (i.e., a car crashing through the fence). That would be enough in an ordinary negligence action, but the court explained that “our cases analyze third party criminal acts different from ordinary negligence, and require us to apply a heightened sense of foreseeability before we can hold a defendant liable for the criminal acts of third parties.” Id., 32 Cal.4th at 1149-50.

Memo to high school coaches

Go ahead and push your players to develop their skills and abilities, even if your demands are unreasonable. Don’t worry if your unreasonable demands result in an injury, because that is no longer a basis for a negligence claim against high school coaches. If one of your players is injured, you can be held liable only if you acted with intent to cause the injury or you acted recklessly in the sense that your conduct was totally outside the range of the ordinary coaching activities. So feel free to go crazy on the field. We like our coaches to be over the top.

The usual rule of negligence is that you have a duty of due care to avoid creating an unreasonable risk of harm to others. However, 12 years ago, the Supreme Court began to carve out a more limited duty of care for injuries during sporting events. In Knight v. Jewett (1992) 3 Cal.4th 296, which involved an injury during an informal game of touch football, the court held that a participant breached the duty of care owed to a co-participant only if he or she “intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” Id., 3 Cal.4th at 320. The court reasoned that applying the usual standard of reasonable care would unduly discourage participants from vigorous participation in the sport, thereby fundamentally altering the nature of the game.

This term, in Kahn v. East Side Union High School District (2003) 31 Cal.4th 990, the court extended the same limited duty of care to a high school coach whose alleged failure to properly train, supervise and coach one of his players resulted in her suffering a broken neck when she dove from a starting block into a three-and-one-half-foot-deep racing pool in anticipation of a competitive swim meet.

Although the relationship between co-participants is obviously different than the relationship between a coach and one of his or her players, the court held that the same intent/recklessness standard applied because a “significant part of an instructor’s or coach’s role is to challenge or ‘push’ a student or athlete to advance in his or her skill level and to undertake more difficult tasks, and because the fulfillment of such a role could be improperly chilled by too stringent a standard of potential legal liability.” Id., 31 Cal.4th at 996.

Coaches should not get carried away with this ruling. Applying the limited duty of care, the court in Kahn reversed a summary judgment in the coach’s favor because of disputed questions of fact. There was evidence in the record to support findings that the coach had failed to provide the plaintiff with any instruction in how to safely dive into a shallow racing pool and had insisted at the last minute that she dive at the swim meet as part of a relay team despite her objections, her lack of expertise, her fear of diving and the coach’s previous promise to exempt her from diving (in a relay race, the first swimmer can begin in the pool, but subsequent swimmers must dive in). The court indicated that if a jury found these facts to be true, it could properly determine that such conduct was reckless. Id., 31 Cal.4th at 1012-13.

Poetry corner

There’s nothing quite so uplifting as a good poem. It brings meaning to life in ways that ordinary prose cannot even begin to approximate. Poetry is music without notes. How about this sample from a high school student:

“Who are these faces around me? Where did they come from? They would probably become the next doctors or loirs [sic] or something. All really intelligent and ahead in their game. I wish I had a choice on what I want to be like they do. All so happy and vagrant. Each origonal [sic] in their own way. They make me want to puke. For I am Dark, Destructive, & Dangerous. I slap on my face of happiness but inside I am evil!! For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I’m BACK!!”

The author showed this poem to a few classmates who reported the poem to school officials. They contacted police who conducted a quick investigation revealing that several of the students who had been shown the poem felt threatened by it. The author indicated that he did not intend the poem to be threatening and that it was “just creativity” arising in part out of a recent high school shooting in San Diego.

A petition was filed against the author under Welfare and Institutions Code §602 for making criminal threats in violation of Penal Code §422, which provides in pertinent part as follows: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally [or] in writing . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it was made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”

Deconstructing the author’s “dark poetry,” the court held in In re George T. (2004) 2004 Westlaw 1631161, that the poem did not constitute a criminal threat because it was not, in the precise words of §422, “so unequivocal, unconditional, immediate, and specific as to convey to [the two students] a gravity of purpose and an immediate prospect of execution of the threat.”

Applying a heightened level of independent appellate review appropriate for cases involving First Amendment issues (and probably inappropriate for understanding the impact of poetry), the court noted that the poem only recited that “I can be the next kid to bring guns to kill students at school” (italics added), not that I “will” be the next kid to kill students. Absent that stronger statement or other evidence to suggest immediacy (and there was no such evidence), the court held the poem did not constitute a threat under §422.

And so the muse lives on.

Letter to parents

The world is a dangerous place for your children. See memos above on childcare facilities, high school coaches and poetry corner.

Personal note to the governor

Arnold, since you’ve raised the question of whether the legislature should be full-time or part-time, you might also look at amending §10 of Article V of the California Constitution so that you can be a full-time governor whether you are within the state or “absent from the state.” In this modern information and telecommunication age, there is no reason why the lieutenant governor should take over the executive branch the moment you leave the state, particularly since you are usually on state business even when you travel.

For policy support, you can look to the decision in People v. Billa (2003) 6 Cal.Rptr.3d 425, where the court held that the chief justice could validly concur in an opinion even though the chief justice was out of state attending a board meeting of the national Conference of Chief Justices, of which he is the current president.

The chief concurred by faxing to the court a signed copy of the opinion’s signature page. The court overruled contrary cases stretching back 100 years, noting that “modern methods of communication have rendered [the concerns expressed in those opinions] obsolete.” Id., 6 Cal.Rptr.3d at 432 n.6.

If it’s good enough for our chief, it should be good enough for the governator.

• J. Clark Kelso is a professor of law and director of the Capital Center for Government Law & Policy at the University of the Pacific McGeorge School of Law. He also serves as the Chief Information Officer for the State of California. The views expressed in this article are solely the personal views of the author.

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