Oakland Personal Injury Attorney Blog

Employee Allowed to Pursue Sexual Harassment Case, Despite Language in Job Application

April 30, 2014 | by Stephen M. Fuerch

An employee who endured several alleged episodes of sexual harassment from a supervisor received a renewed opportunity to pursue her employer for the illegal conduct. The California Court of Appeal recently concluded that, although the harassment occurred outside the time period for filing a claim stated in the employee’s job application agreement, the employee could go forward anyway because the time period stipulated in the agreement was so short that it ran afoul of California public policy.

In 2009, Ashley Ellis took a job as a security guard for U.S. Security Associates. Following a promotion, Ellis’s position made Rick Haynes her supervisor. Haynes began sexually harassing Ellis. U.S. Security eventually terminated Haynes and promoted Ellis, promising her a pay of $14 per hour. When Ellis received her paycheck, however, the employer had increased her pay rate only to $10.50 per hour. Ellis resigned shortly thereafter and, 10 months later, sued her former employer under the Fair Employment and Housing Act (FEHA). The employer argued before the trial court that Ellis could not pursue her lawsuit because she had promised, as part of her employment application agreement, to bring all legal actions within six months of the incident triggering the dispute. The agreement also waived any statutes of limitations that gave the employee a longer time to sue. The trial court accepted the employer’s argument and dismissed the employee’s suit.

The appeals court was not persuaded, however, and reversed. The statutory scheme and legal remedies the FEHA created existed “for a public reason.” The court pointed out that one statutory section, Section 12920, specifically states that the FEHA was enacted because of California’s public policy “to protect and safeguard the right and opportunity of all persons to … employment without discrimination” and that the benefit of the policy against sexual harassment extended to the public at large, not just the victimized employee. Continue reading ›

Family Allowed to Pursue Hospital on Claim that It Placed Living Woman in Morgue Freezer

April 15, 2014 | by Stephen M. Fuerch

A family whose elderly relative may have died horrifically inside a Southern California hospital received a reprieve in their legal action against the hospital. A California appellate court concluded that the family did not wait too long to accuse the hospital of wrongful death for erroneously placing the woman in a morgue freezer while still alive. Lawyers for the family convinced the court that the family could not have learned about the error until a medical expert made the discovery many months later.

In July 2010, an ambulance transported Maria de Jesus Arroyo to White Memorial Hospital, where she was pronounced dead. When the family’s mortuary picked up the 80-year-old’s body, they found Arroyo’s face severely damaged and disfigured. This damages was not present when the family identified the body shortly after death.

The family sued the hospital for mishandling the body. As part of this case, the family hired a medical expert who reached a startling conclusion late in 2011: Arroyo was alive when the facial injuries occurred, suffering the harm as she fought to escape the morgue freezer, where she eventually froze to death. The family modified their case in 2012 to add claims for medical negligence and wrongful death, accusing doctors at the hospital of erroneously declaring the woman dead, which set into motion all of the subsequent events. The hospital asked the court to throw out the medical negligence and wrongful death claims, arguing the family waited too long to assert them. The trial court agreed and dismissed the claims. Continue reading ›

Auto Maker Agrees to $1.2B Settlement to End Federal Probe of Defective Vehicle Accelerators

March 28, 2014 | by Stephen M. Fuerch

An auto manufacturer, beset by multiple claims and investigations regarding a defect in its vehicles that caused them to accelerate uncontrollably, has settled with the federal government to end a criminal investigation into its practices, FOX 5 San Diego reported. The investigation, initially triggered by a multiple-fatality accident in Southern California, pursued the company for allegedly misleading customers about its vehicles’ safety in the wake of that crash.

Off-duty California highway Patrol Officer Mark Saylor picked a “loaner” Lexus ES 350 sedan from a San Diego County auto dealership in August 2009. Shortly after leaving the dealership, the car’s accelerator pedal became pinned down, trapped beneath an improperly installed floor mat. The Lexus raced to speeds of more than 120 mph before striking another car, crashing through a fence and going over an embankment, when it ultimately burst into flames when it landed in the San Diego River basin. The wreck killed the officer and three members of his family.

Toyota Motor Corp. settled the Saylor family’s lawsuit regarding the defective Lexus for $10 million. The auto manufacturer also, one month after the Saylor crash, recalled 3.8 million vehicles with potential accelerator issues. The U.S. government, however, concluded that this response was inadequate and the FBI’s New York office began pursuing the company in early 2010.

Understanding the Obligations of a Confidentiality Agreement in Your Employment Discrimination Lawsuit

March 14, 2014 | by Stephen M. Fuerch

Often, one of the more powerful tools an employee has in an employment discrimination case is raising the prospect of taking an employer to court and bringing about unwanted negative publicity. This is has never been more true than in today’s digital age of social media, where anyone can broadcast information that may go before thousands of eyes within within a matter of moments. That’s why the inclusion of a contractual clause promising confidentiality is often key to an employer’s agreement to settle and pay the employee. California employees who agree to confidentiality clauses should ensure they understand their duties, because the consequences of a breach can be severe, as one prep school headmaster in another state recently learned.

The case involved Patrick Snay, the headmaster at Gulliver Preparatory School. After the school declined to renew his contract, the headmaster, who was in his mid 60s, sued for age discrimination. The two sides settled, with the school agreeing to pay the headmaster a settlement of $80,000 contingent on his agreement to maintain confidentiality. The headmaster agreed to the terms, which limited him to discussing the matter with his attorneys, professional advisors and wife, but he told his 18-year-old daughter about the outcome. The daughter, soon thereafter, logged onto Facebook, and posted that her parents had “won” the case and that the school was “now officially paying for my vacation to Europe this summer.” The post was available to the daughter’s 1,200 Facebook friends, many of whom were associated with the school.

After becoming aware of the Facebook post, the school refused to pay the headmaster, claiming that he violated the non-disclosure agreement. A Florida appeals court agreed with the school. The court was not moved by the headmaster’s argument that he had a familial obligation to give the daughter some information. The court stated that the headmaster should have told his attorneys about this need, so that his legal team could include that element within the terms of the non-disclosure agreement. The headmaster, however, discussed his plan with no one but his wife, the resulting confidentiality agreement made no allowance for telling the daughter and, in the end, the headmaster’s disclosure cost him $80,000.

Error in Jury Instruction Prompts New Trial in Sexual Harassment Case

February 28, 2014 | by Stephen M. Fuerch

A nurse, fired after reporting sexual harassment he received at the hands of one of his supervisors, saw his nearly quarter-million damages award evaporate when the California Court of Appeal awarded his employer a new trial. In order to succeed on a claim of illegal retaliation, the law requires the employee to show that his reporting of harassment was a substantial motivation for the termination. Because the trial court only asked a jury to decide if the nurse’s report factored into the hospital’s decision-making at all, the verdict was flawed.

Romeo Mendoza had been a nurse at the Western Medical Center Santa Ana, with a stellar employment record, for more than two decades when he reported to a hospital supervisor about the sexual harassment he received from his immediate supervisor, Del Erdmann. Mendoza claimed that Erdmann made crude and offensive sexual comments, blew into his ear and exposed himself.

The hospital investigated and Erdmann claimed that he and Mendoza, both of whom are gay, were engaged in consensual flirtation at work and that Mendoza initiated many of the interactions. The hospital fired both men, concluding that each engaged in “inappropriate and unprofessional behavior.”

Family Receives Multi-million Dollar Damages Award Against Parts Maker After Man’s Asbestos-Related Death

February 13, 2014 | by Stephen M. Fuerch

A brake part manufacturer’s liability to a repairman and his family for injuries the man suffered sadly evolved, after the man’s death, into a second case to determine the amount of damages the manufacturer owed the family for the worker’s wrongful death. In a January 2014 trial, an Alameda County jury awarded the worker’s family $11 million for the 17 years the man’s injuries — specifically, mesothelioma resulting from inhaling asbestos dust — shaved off his life.

Gordon Bankhead spent 35 years working as a repairman on heavy-duty vehicles. During his years on the job, Bankhead often handled asbestos-lined brake parts in the course of repairing or replacing brakes on the vehicles he serviced. The worker was also present for inspection of these brake parts. The nature of Bankhead’s job duties forced him to inhale asbestos dust emitted by the brake linings, which is extremely harmful. As a result, the worker developed mesothelioma, which his doctors diagnosed in January 2010. Mesothelioma is a rare variety of cancer where cancerous cells attack the protective lining covering the body’s internal organs. Exposure to asbestos is the most common cause for developing mesothelioma.

The worker sued Pneumo Abex LLC, the maker of the asbestos-laden brake parts, two months after his diagnosis. Pneumo Abex manufactured brake linings that attached to brake shoes and axles. Bankhead contended that the manufacturer knew the brake parts were dangerous, but failed to warn him, instead suppressed information regarding the parts’ dangers. A jury concluded that the manufacturer was negligent and that its negligence caused Bankhead’s mesothelioma. At the conclusion of the family’s first trial, a jury awarded $3.9 million in compensatory damages and $13.5 in punitive damages. Although the manufacturer appealed, the verdict and award stood.

Transvaginal Mesh Device Maker Fails to Derail California Woman’s Defect Lawsuit

January 30, 2014 | by Stephen M. Fuerch

One of several “bellwether” cases in a massive federal action against the maker of a transvaginal mesh device cleared an important hurdle when a judge refused to dismiss a California patient’s claim. Although the woman had her device implanted nearly three years before she sued, the evidence was conflicting regarding how long she knew about the device’s defect, which prevented the device maker from achieving dismissal based upon California’s statute of limitations.

Doctors at the Marian Medical Center in Santa Maria implanted a transvaginal mesh device into Roseanne Sanchez in early 2010 to treat her cystocele, stress urinary incontinence and pelvic organ prolapse. Almost immediately after surgery, Sanchez began noticing symptoms, including discolored discharge, itching and cramping. Despite multiple follow-up surgeries to remove portions of the mesh, the patient’s symptoms did not improve. According to Sanchez, her doctors never told her that her difficulties were the result of a defect in the device. Only after the patient saw a television commercial for transvaginal mesh litigation in 2011, and retained legal counsel, did she learn that her device was defective.

In November 2012, Sanchez joined a group of thousands of users of the device to sue the product’s maker, Boston Scientific. The manufacturer asked a federal judge to dismiss Sanchez’s case, contending that Sanchez waited too long to sue. Boston Scientific argued that the patient’s symptoms, along with her four revision surgeries, should have been enough to make her aware of her potential claim. Because each of these events occurred before November 2010, and California law gives injured people two years to sue for their injuries, the patient’s lawsuit was not timely, the company asserted in its motion.

Mom’s Financial Independence Blocks Effort to Sue Over Son’s Construction Accident Death

January 15, 2014 | by Stephen M. Fuerch

Succeeding in personal injury cases involves more than just having strong evidence about the injury itself. In a recent case, a mother’s wrongful death suit against an energy company failed, not as a result of a lack of proof regarding her son’s accident, but because California law prevented her from bringing such a legal action based upon her son’s injuries. The ruling highlights the importance of meeting all of the evidentiary requirements needed to pursue a wrongful death case.

James Bean was working on a solar panel construction job at a building leased by Southern California Edison Company when he fell through a skylight and landed on a concrete floor 37 feet below. Bean died from his injuries. Shirley Hill, Bean’s mother, sued the company for her son’s wrongful death. The company asked the trial court to throw out the case because the mother lacked standing, which is the legal capacity to bring a particular lawsuit. The trial court ruled for the company, concluding that the mother was not financially dependent on the son, as required in order for a parent to bring a wrongful death action based upon a child’s death.

The California Court of Appeal agreed with the trial court (downloadable doc). The court noted that the only proof she had to back up her claim of financial dependence on the son was her having lived with the son from 1998-2001 following her divorce, his purchase of meals and cigarettes for her, and his occasional gifts of cash to her that she used to pay bills.

Employee’s Criminal Conviction Defeats Discrimination Claim, Regardless of Employer’s Motives

December 27, 2013 | by Stephen M. Fuerch

A union member’s past criminal conviction proved to be the undoing of his racial discrimination claim, even though his union did not know about the conviction when it rejected him for an organizer position. The California Court of Appeal recently concluded in Horne v. International Union of Painters and Allied Trades District Counsel, 16 that the member’s criminal record made him statutorily ineligible for the organizer position he sought. Because of that ineligibility, the applicant could not possibly establish a case of racial discrimination in violation of the Fair Employment and Housing Act (FEHA), regardless of the union’s motivation for rejecting him.

The case began after Raymond Horne, an African-American male, twice applied unsuccessfully for an organizer job, in 2009 and 2010, with District Council 16 of the International Union of Painters and Allied Trades, of which Horne was a member. In each instance, the union selected a white applicant to serve as organizer. Thereafter, Horne sued the union, claiming it racially discriminated against him.

During the pre-trial discovery phase of his case, Horne disclosed his having a criminal record. The state convicted him on drug charges in 1997. Horne went to jail but was paroled in 2003. At the time the union chose the white candidates over Horne, it was unaware of Horne’s criminal past.

Employee Must Defend Both Trade Secret, Non-competition Violation Claims Against Former Employer

December 13, 2013 | by Stephen M. Fuerch

A recent ruling reiterated the rule that an employer may assert both trade secret and non-trade secret related claims, as long as the employer establishes separate bases for each. In Angelica Textile Services, Inc. v. Park, the California Court of Appeal allowed an employer to pursue its multi-claim action against a former vice president because the factual underpinnings of the company’s non-trade secret claims were separate from its trade secret claims, revolving solely around the vice president’s alleged violation of the terms of his non-competition agreement.

Jaye Park, a vice president at Angelica, had signed a non-competition agreement with his employer promising not to become involved with any business similar to Angelica’s as long as he worked for the employer. In 2008 and 2009, though, Park discussed the creation of a competing hospital linen and laundry company, including preparing a detailed business plan. In 2010, Park resigned and took a role as the Chief Operating Officer at the new company. Angelica sued, claiming Park misappropriated trade secrets, interfered with its business relationships, breached his contract and breached his fiduciary duty to the employer. The trial court concluded that the employer could proceed only on its trade secrets claim, because the other claims were dependent on the trade secrets claim and, as a result, the California Uniform Trade Secrets Act (CUTSA) displaced all of the other claims.

On appeal, though, the employer successfully argued for the other claims’ reinsertion. The California Court of Appeal pointed out that the CUTSA explicitly avoided displacing contractual claims, even if the basis of those claims was a misappropriated trade secret. Other non-contractual claims could also survive if the facts underlying them were independent from the facts supporting the trade secret misappropriation claim.