Prisoner's Calvinist Chaplain request under RLUIPA headed for trial

On May 4, Judge Ronald M. Whyte largely denied a motion for judgment by various official at Salinas Valley State Prison in a case about an inmate's claim for religious freedom.

According to court documents, Richard B. Hall has been banned from the prison chapel at Salinas Valley State Prison.  He claims that Chaplain J. Young failed to accommodate his Reformed Christian or Calvinist beliefs, instead he is compelled to attend protestant services that harbor beliefs abhorrent to his own.  He offers as proof, a letter from his home church pastor who explains how the beliefs of his home church differ from that of Chaplain Young.  The prison countered with an affidavit from the chaplain who said that he offered individual weekly bible studies to accommodate every possible protestant prisoner belief.  However, Mr. Hall came back with an affidavit from another inmate who stated that he had attended protestant services for over a decade, has been involved with the chapel, and never heard of such a thing being offered.

Judge Whyte explained that under the Religious Land Use and Institutionalized Persons Act (RLUIPA) state prisons face liability when they "impose a substantial burden on the religious exercise of a person" unless they can demonstrate that the program furthers a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.  Here, the prison argued that Mr. Hall has "confidential enemies" that require him to be in a high security wing.  Judge Whyte said that wasn't good enough:

Plaintiff states that SVSP’s Reformed Christians "offered to meet on the yard under the supervision of yard officers - and the officer in tower - . . . [or] whatever is the least amount of strain on [the] existing program."(Compl. at 26.) Defendants offer no evidence to show that this cannot be accommodated. Furthermore, that inmates may be segregated from other prisoners either for their own protection or for disciplinary reasons does not deprive them of their right to free exercise, e.g. to attend religious services. See Beck v. Lynaugh,  (5th Cir. 1988); Mawhinney v. Henderson, (2d Cir. 1976); see also Whitney v. Brown, (6th Cir. 1989) (where security concerns regarding movement of inmates are manageable, prison administrators may be required to allow inmates from all areas of institution to gather together for services).

Judge Whyte largely denied the motion for summary judgment.  This case raises the interesting question of just how far must a prison go to accommodate prisoner beliefs under RLUIPA.

Employee's fraud claim against Eagle Test Systems set for trial.

Judge Ronald M. Whyte denied Eagle Test System's motion for summary judgment on former employee Dale Buxom's fraud claim against the company setting the matter for trial.

Mr. Buxom was Eagle's Vice President of Asia Operations.  His employment agreement guaranteed a severance package if he was terminated without cause.  On March 17, 2008 he signed a revised employment agreement stating that his employment was at-will.  He was terminated a month later.  Judge Whyte explains that Mr. Buxom,

claims that the job did not actually exist, that Foxman [Eagle's CEO] knew that the job did not exist and that the promise of the job was made with no intent to make it available.

Judge Whyte explained that Mr. Buxom's evidence raised an issue for the jury:

Defendant correctly argues that nonperformance of a promise alone does not prove that arepresentation was false when made. See Church of Merciful Saviour v. Volunteers of America, Inc.,184 Cal.App.2d 851, 859-60 (1960) (proof of non-performance at most warrants an inference of an intention not to perform at time the representation was made). Here, however, plaintiff has not justoffered defendant's non-performance of its promise. In light of the circumstances surrounding the offer of the 2008 Agreement, the concerns Eagle Test had at the time, and the facts as testified to by plaintiff, a triable issue of fact exists with respect to plaintiff's claim that defendant offered to create the position of Vice-President of Fabless/Subcontractors for plaintiff in California with no intent to perform that promise.

He denied summary judgment setting the case for trial.

Northern California Judges Rule in 1983 Cases

Two courts recently released orders on dispositive motions in 42 U.S.C. § 1983 cases.

Woodward v. Menlo Park is a police brutality action involving the plaintiff's arrest on February 3, 2007.  According to Mr. Woodward, Officer Ron Venzon told him to stop at about 9:47 pm. He first ignored, but later complied and Officer Venzon tackled him and repeatedly kicked him resulting in a collapsed lung and five broken ribs which required three days of inpatient treatment at Standford Hospital. While being beaten, a crack pipe fell out of his pocket leading to the resulting arrest. Officer Venzon responds that he told Mr. Woodward he wanted to speak to him at which time Mr. Woodward threw away a crack pipe and begun running. 20-30 feet later Officer Venzon tackled the plaintiff and handcuffed him. He states that Mr. Woodward's injuries resulted from being tackled.  As part of a plea deal, Mr. Woodward pled guilty to resisting, delaying or obstructing a police officer.

Mr. Woodward is proceeding pro se, but did a pretty good job arguing his case so that he met all of the elements of resisting arrest, but in such a way that it does not prevent his civil rights claim under Heck v. Humphrey.

[T]he Ninth Circuit has held that Heck does not necessarily bar § 1983 actionsalleging excessive force despite the plaintiff’s conviction for resisting arrest. Specifically, “a §1983 action is not barred by Heck unless the alleged excessive force occurred at the time the offense under § 148(a)(1) was being committed.” Smith [v. City of Hemet (9th Cir. 2004)]. Thus, “as long as the officers were acting lawfullyat the timethe violation of § 148(a)(1) took place, their alleged acts of excessive force, whetherthey occurredbeforeorafter[plaintiff] committed the acts to which he pled, would notinvalidate his conviction.” Smith[;] see also Pelayo v.City of Downey,  (C.D. Cal. 2008) ("… the key question under Smith is whether the moment at which the criminal violation occurred is separate from themoment at which the constitutional violation occurred"). In the instant case, under Plaintiff’s version of events, he initially ignored and walked away from Defendant, but then stopped andraised his hands when Defendant exited his vehicle. According to Plaintiff, excessive force was not used on him until after he raised his hands and "surrendered" to Defendant. Therefore, genuine issues of material fact regarding the circumstances surrounding Defendant’suse of force also preclude summary judgment under Heck.

Judge Saundra Brown Armstrong denied the defendant's motion for summary judgment.

Tufono v. Valenzuela involves a pro se prisoner who was beaten to a point of unconsciousness by his cell mate.  Mr. Tufano claims that two guards put him with another inmate with a different classification contrary to prison policy.  The guards responded that they looked at the files and that they determined (erroneously) that the cell mates were compatible. As Judge Ronald M. Whyte explains:

The failure of prison official to protect prisoners from attacks by fellow prisoners or from dangerous conditions at the prison violates the Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is, subjectively, deliberately indifferent to prisoner safety. Farmer [v. Brennan (U.S. 1994)].

Getting beaten to a point of unconsciousness is pretty serious, the fight was over whether there was deliberate indifference.

Defendants do not argue that Gasaway and plaintiff, in fact, had the same custody classification. Defendants also do not argue that although plaintiff and Gasaway had different custody classifications, they overlooked it.

That oversight is sufficiently serious to create a genuine issue of material fact and thwart summary judgment.  Judge Whyte denied the plaintiff's motion for summary judgment.

Northern California Daily Digest

The Presidio courtesy of
the National Park Service

Here are some of the other cases going on in the U.S. District Court for the Northern District of California.

Coalition for ICANN Transparency v. Verisign is an antitrust case.  The Internet Corporation for Assigned Names and Numbers (ICANN) is a non-profit established by the Department of Commerce to administer the domain name program on the Department's behalf. The Coalition for ICANN Transparency (CFIT) is a group of web domain owners that have an interest in the fair operation of the domain name system.  Verisign is the sole operator of the .com and .net domain name registries which it operates pursuant to a contract with ICANN.  In the present action CFIT is struggling to show that it has association standing.  Judge Ronald M. Whyte explained:

The court cannot find that the [Third Amended Complaint] TAC properly alleges standing. Unlike the [Second Amended Complaint] SAC, nothing in the TAC connects financial supporters of CFIT's litigation efforts to membership in CFIT for purposes of finding associational standing. The TAC never alleges that financial supporters are members of CFIT, and it provides no facts that would allow a connection to be drawn between financial supporters and members of CFIT. By failing to identify its purported members, CFIT has made it impossible to determine whether the members are participants in the alleged relevant markets, or whether they have suffered antitrust injury. Because the TAC identifies no members of CFIT, it must be dismissed.

Judge Whyte dismissed the complaint with leave to amend.

Madrigal v. Astrue is an appeal of the commissioner's denial of benefits under Title II of the Social Security Act.  Mr. Madrigal raises an interesting issue on appeal that the ALJ failed to follow the instructions of the Social Security appeals counsel on remand.  In particular the ALJ used information from an application for Title II benefits from a denied 1999 decision.  Judge Richard Seeborg explained this is fine.

The ALJ correctly emphasized at the outset of his opinion that any reference to Madrigal’s medical records from outside the relevant period was made only to provide background information and give a clearer picture of Madrigal’s impairments and complaints. See, e.g., Cox v. Barnhart, (8th Cir. 2006) (quoting Pyland v. Apfel, (8th Cir. 1998)) (explaining that “[e]vidence from outside theinsured period can be used in ‘helping to elucidate a medical condition during the time for which benefits might be rewarded.’”).

Judge Seeborg affirmed the ALJ's decision.

Rudwall v. Blackrock, Inc. is an employment discrimination case.  Mr. Rudwall claims that he was chosen for termination from Blackrock during a reduction in force because of his age and points to some statements his supervisor made in 2001.  Perhaps strangely, the FEHA claims failed, but the good faith and fair dealing claim survived summary judgment.  Judge Thelton Henderson explained:

BlackRock challenges Rudwall’s second claim for relief for breach of the covenant of good faith and fair dealing on the grounds that it duplicates Rudwall’s second claim for relief for breach of contract. BlackRock cites Careau & Company v. Security Pacific Business Credit, Inc. [Cal. 1990], which states that

[i]f the allegations do not go beyond the statement of a merecontract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in acompanion contract cause of action, they may be disregarded a superfluous as no additional claim is actually stated. Thus, absentthose limited cases where a breach of a consensual contract termis not claimed or alleged, the only justification for asserting aseparate cause of action for breach of the implied covenant is toobtain a tort recovery.

According to Rudwall, both claims survive here because they do not rely on the same acts – the breach of the covenant claim is based upon the allegation that BlackRock wrongfully terminated Rudwall to avoid payinghim a bonus in 2008, and his breach of contract claim is based upon the allegation that BlackRock did not pay Rudwall a bonus in 2008. The Court agrees. Whether Rudwall seeks identical relief under these claims is irrelevant under Careau where, as here, the claims challenge separate conduct. In BlackRock’s reply, the company argues that Rudwall has produced no evidence that the reason BlackRock terminated Rudwall was to avoid paying him a bonus. That may be true, but because this argument was made for the first time in BlackRock’s reply, Rudwall was not afforded an opportunity to respond with citations toevidence in the record.

Therefore, Judge Henderson denied summary judgment on the contract claims.

USA v. CalTrans is the rare case that deals with interpretation of an agreement between a state and the federal government.  This case involves a 1938 agreement between CalTrans and the federal government, where California would obtain a right of way to build a highway over the Presidio in San Francisco (pictured above).  California did not pay for the right of way (which now is Park Presidio Highway) near Mountain Lake (pictured below), rather it contained a number of terms and conditions.  Subsequently the Department of War transferred the Presidio to the Department of the Army and then to the Secretary of the Interior.  Congress then created a trust for the Presidio which determined that Mountain Lake has been contaminated with lead, copper and zinc from the runoff from a poorly maintained drainage system of Park Presidio Boulevard. The trust sought damages from the United States to clean the lake and the government sought idemnification from CalTrans based on the 1938 agreement.  Judge Hamilton agreed:

Pursuant to ¶ 15 of the 1938 Permit, CalTrans is required to “construct such culverts or other drainage facilities, as, inthe opinion of the Secretary of War, or his authorized representative, shall be or become necessary to the proper use of the reservation by reason of the construction of such road.”  The United States having determined that the present overflow pipeline is damaged andrequires replacement (or repair), CalTrans is liable pursuant to ¶ 20 of the Agreement forthe costs of such replacement (or repair).

She granted the government's motion for summary judgment.


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Northern California Judges Rule in 1983 Cases

There are three civil rights cases that made the article today.  Two of them involve Alameda County.

In Paniagua v. Alameda County deals with federal court review of a state court action under 42 U.S.C. § 1983. Ms. Paniaqua claims that she conceived a child by rape and wanted to give it up for adoption but the rapist would not consent.  While obtaining prenatal care, she befriended a women named Olivia and wanted to allow Olivia to adopt her child upon its birth.  After the child was born an anonymous person reported the plaintiff's plans and child services workers seized the child and put it in foster care.  This was on May 6, 2008. The plaintiff filed the under lying action on May 8, 2010 and missed the statute of limitations.  Judge Claudia Wilken dismissed the case.

Schwenk v. Alameda is very similar.  Ms. Schenk is suing the county for removing her children from her.  She is claiming, among other things emotional distress damages.  The county is fine with that claim and wants to compel discovery of the plaintiff's mental health records.  Magistrate Elizabeth D. Laporte explained that there are two kinds of emotional distress damages.  First, "garden variety damages" are those were the only testimony involved is that of lay witnesses.  Second is the testimony that is explained by experts.  The former does not compel discovery of mental health records the latter does.

See EEOC v. Lexus of Serramonte,  (N.D. Cal. 2006) (“Ms. Wei's medical records are privileged by her right to privacy under California and federal law, and she brings only a ‘garden-variety’ claim for emotional distress damages and she does not intend to relyon those records or on testimony by a medical or psychiatric expert to support her claim. Consequently, she has not waived this privilege by putting her medical or mental condition atissue.”); see also Verma v. American Express, (N.D. Cal. May 26,2009) (concluding that even though the complaint had alleged extreme emotional distress, plaintiff agreed to limit her claims to allege no more than garden variety emotional distress and therefore had not waived her right to invoke the psychotherapist-patient and physician-patient privileges as to her communications with her doctor); see also Fitzgerald v. Cassil, (N.D. Cal.2003) (“Plaintiffs have stipulated that they will not affirmatively rely on any treating psychotherapist or other expert to prove the emotional distress damages suffered by Mr. Fitzgerald and Mr. Yu. The Court notes that, even if the middle ground approach to waiver ( i.e., 'garden-variety' emotional distress) were applied, no waiver would be found in the instant case.Plaintiffs have not pled a cause of action for intentional or negligent infliction of emotional distress and have not alleged a specific psychiatric injury or disorder or unusually severe emotional distress extraordinary in light of the allegations. Nor have they conceded their mental condition as revealed in the records sought is ‘in controversy.’”).

Judge Laporte denied the motion to compel.

Sharkey v. O'Neal is a pro se prisoner lawsuit seeking damages relating to his parole placement.  The plaintiff is confined to a wheelchair and was removed from his parole facility after Jessica's law passed.  However, this was in 2008 and like Ms. Paniqua above the statute of limitations has passed.  Judge Jeffery S. Whyte dismissed the case.

Northern California Judges Rule in Patent Cases

Several Northern California Judges have recently ruled in patent cases among them:

In re Google Lit. is a patent infringement lawsuit where Daniel Egger (through his company Software Rights Archive, LLC) claims that Google, Yahoo and AOL are infringing his search engine technology patents.  Google moved to dismiss the action for lack of standing, stating that Egger assigned the patents Software Rights Archive (SRA) who then entered into a binding letter of intent with Altitude Capital Partners giving the latter rights to enforce the patent.  It is Altitude, Google argues, that should be the plaintiff in the action and not SRA.  Judge Ronald M. Whyte disagreed:

In this case, the interpretation of the Membership Interest Purchase Agreement that gives meaning to both Section 5.4 and Section 6.15 is that Section 5.4 transferred only the control that Egger and his holding company had as the parent company of Software Rights Archive, LLC to SRA LLC, and did not divest Software Rights Archive, LLC of any of the rights attached to its patents.

He denied the motion to dismiss.

Conceptus v. Hologic is a patent infringement lawsuit involving a contraception device that fits in the fallopian tube.  Conceptus has moved for partial summary judgment on the eve of trial to limit some of the issues for the jury.  Conceptus markets only one product - Essure, a permanent contraceptive product.  Hologic sells the Adiana contraceptive system which is the accused infringing product in the present case.  The dispute is boiled down to when the Adina matrix (which is the part immediately adjacent to the fallopian tube) becomes affixed.  As Judge William H. Alsup explained this is an issue for the jury.

The crux of the argument is on the facts, and the question of whether the Adiana procedure satisfies the requirements of the asserted method claims is a fact issue for the jury to decide. Specifically, the question of when the Adiana matrix becomes “permanently affixed” isone on which reasonable jurors could disagree. By way of simple analogy, if one were topermanently affix two foot-long steel bars to each other by welding them together lengthwise, reasonable jurors could disagree as to how much of the foot-long weld joint must be completedbefore the bars are permanently affixed. So too here; reasonable jurors could disagree as to howmuch (if any) tissue ingrowth must take place before the Adiana matrix is permanently affixed within the fallopian tube. Because the parties disagree as to this question of medical fact, both summary judgment motions fail, and the question of direct infringement of method claims 37 and 38 will go to the jury.

He denied the cross motions for summary judgment.

Northern California Daily Digest

Here are some of the other orders judges have released in the U.S. District Court for the Northern District of California.

Davis v. CDCR is a complaint of employment discrimination under Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (FEHA).  Dr. Davis worked as a contract social worker for CDCR at Pelican Bay State Prison from July 31, 2000 to December 31, 2007. She interviewed for a job as a civil servant but did not receive it, her employment was terminated due to CDCR's new policy of using civil servants instead of contractors. Dr. Davis alleges that her coworker, and later supervisor, David Mandel harassed her throughout her tenure at PBSP by standing outside the ladies' room and providing feedback on how long she had been in the restroom, regularly berating her at meetings, physically attacking her once, and allowing prisoners to masturbate in counseling sessions with her. She repeatedly complained about his behavior but only received a response after several years, transferring her to another supervisor's control. Judge Saundra Brown Armstrong used the same language she had used in two previous cases (Wheeler v. Chertoff, (N.D. Cal. July 17, 2009) and Pascual v. Astrue (N.D. Cal. April 27, 2009)) to dispose of the current matter:

In contrast, the Ninth Circuit has rejected hostile work environment claims involving circumstances far more severe and pervasive than those at issue here. See Sanchez v. City of Santa Ana, (9th Cir. 1990) (affirming conclusion that plaintiffs failed to prove a hostile work environment even where the employer allegedly made racially offensive slurs, kept illegal personnel files on the plaintiffs because they were Latinos, provided unsafe vehicles to Latino police officers, posted a racially offensive cartoon, targeted Latinos when enforcing rules, and did not provide adequate back-up to Latino police officers); Vasquez [v. County of Los Angeles], [(9th Cir. 2003)] (finding no hostile environment even where plaintiff was told that he should consider transferring to work in the field because “Hispanics do good in the field,” was told that he had “a typical Hispanic macho attitude,” a co-worker made continual, false complaints about the plaintiff to his supervisor, and plaintiff was yelled at in front of others); Manatt v. Bank of Am., (9th Cir.2003) (finding that jokes using the phrase “China man,” ridiculing for mispronunciation of names, and employees pulling their eyes back with their fingers to mock the appearance of Asians did not constitute a hostile work environment for a Chinese woman).

She granted the motion for summary judgment.

Nobleza v. Macy's Inc., is a putative class action regarding employees of companies acquired by Macy's under the Employee Retirement Savings Investment Act (ERISA).  Under the plan, employees must apply for benefits between age 65 and 68.  The plaintiffs allege that the company failed to inform them of their eligibility to obtain pension benefits at age 68.  Judge Ronald M. Whyte is a bit surprised by the legal theory involved:

Interestingly, in defending their selection of age 68 rather than age 65 as triggering a fiduciary duty to locate and notify, plaintiffs take the position that failing to notify Plan participants of their eligibility at age 65 does not frustrate the purpose of the Plan. Plaintiffs appear to acknowledge that since Plan participants may intentionally choose not to apply for benefits as soon as they become eligible (at age 65), one cannot assume that their failure to apply for benefits is due to not being aware of their eligibility. Yet the same is true at age 68.

Macy's responded that even if it failed to inform the plaintiffs of their benefit eligibility, they now know and have suffered no harm.  The plaintiffs respond with two theories of harm 1) if they failed with withdraw by age 70 1/2 they would incur tax penalties and 2) Macy's should write the IRS and ask for a tax penalty exemption.  Judge Whyte explained that neither of these was a sufficient harm to confer standing.

[T]he Ninth Circuit has held that money damages, such as recovery for tax losses, are outside the scope of the"appropriate equitable relief" that may be obtained under Section 502(a)(3). Farr v. U.S. West Commc'ns, Inc., (9th Cir. 1998). Thus, the court may not require payment of tax penalties as requested. 

[T]he amended complaint does not contain any allegations suggesting that it is likely,as opposed to merely speculative, that defendants' petition for a waiver of tax penalties would begranted. To the contrary, the fact that the prayer for relief seeks payment of tax fines by defendants "inthe event that petition is denied" implies that plaintiffs themselves are concerned that such a petitionmay be denied.

He granted the motion to dismiss with leave to amend.

In Big Lagoon Rancheria v. California, the indian tribe has tried to negotiate a gaming license with the State of California since 1998.  The Tribe now contends that the state has negotiated in bad faith and seeks a court order requiring the State to negotiate in good faith under the Indian Gaming Regulatory Act (IGRA).  The tribe wants to construct a gaming facility and hotel on its land in Humboldt County, the State will agree to a compact, but only if the tribe agrees to a revenue sharing plan and a complete environmental review of the project.  As Judge Claudia Wilken explains:

Big Lagoon asserts that the State's failure to negotiate in good faith is evidenced by the State's requests for general fund revenue sharing, insistence that the tribe comply with various environmental and land use regulations and recommendations that the Tribe site its gaming facility off its tribal lands.

Judge Wilken agreed that this amounts to taxation of the tribe and is evidence of negotiating in bad faith.  The burden then shifted to the State to explain how it was negotiating in good faith.  The State takes the somewhat desperate approach of arguing that the precedents that show revenue sharing is bad faith are wrongly decided, even though they are dispositive of the issue.  Judge Wilken granted summary judgment for Big Lagoon Rancheria and ordered the parties into mediation.

Northern California Judges Rule in Labor Cases

Several judges on the U.S. District Court for the Northern District of California have recently released decisions on labor cases among them:

Carr v. Allied Waste Systems of Alameda County is a dispute over how Allied and the Teamsters Union Local No. 7 handled Mr. Carr's grievance.  On April 8, 2009 Mr. Carr refused to drive his refuse truck after noticing a minor mechanical problem.  He wanted either the problem fixed or a new truck.  HIs supervisor told him to drive, he refused and Allied fired him subject to the review procedure in the Union's collective bargaining agreement (CBA).  Two different committees review suspensions and terminations of employees covered by the CBA, if deadlocked (as was the case here) the parties submit the matter to arbitration.  The arbitrator noted that Mr. Carr had worked for Allied for 15 years and was familiar with the "work now and grieve later" policy in place and that refusing to work would be insubordination and grounds for termination.  Mr. Carr, proceeding pro se invokes nineteen causes of action which are mostly state law breaches and one count of a violation of the Labor Management Relations Act (LMRA).   Judge Phyllis J. Hamilton had a hard time figuring out precisely what is being alleged.

In the present action, while the allegations in the FAC are exponentially more convoluted and incomprehensible than the allegations in the prior case, it is clear that the claims against Allied are preempted by LMRA § 301, as they relate to provisions in the CBA governing disputes concerning discharges and suspensions.

She dismissed all of the state law claims without leave to amend and dismissed the LMRA claims with leave to amend.

Committee for Recognition of Nursing Achievement v. Lucule Salter Packard Children's Hospital involves a hospital that opened a new wing and allowed some CRONA union nurses to apply for positions in it.  The new wing had non-union nursing coordinators.  CRONA alleges that union positions had been replaced with non-union ones in violation of the now expired collective bargaining agreement (CBA) for which arbitration should be compelled.  The Hospital argues that never happened and this is a representation matter which would be properly before the National Labor Relations Board (NLRB); it moves for summary judgment in that regard.  Judge Jeremy Fogel explained that the CBA stated that disagreements about terms in the CBA are subject to arbitration (and not litigation, unless a possible interpretation is unreasonable).  Here, the parties dipute whether union positions were reassigned to non-union personnel:

Here, the CBA properly defined the scope of the bargaining unit, and the parties agreed to arbitrate disputes “involving in the interpretation or application” of that agreement.

He granted the motion to compel arbitration and denied the motion for summary judgment.

Rodriguez v. SEIU is a complaint a group of janitorial workers in high rise buildings in San Francisco against the SEIU Local 87 for violating various provisions of the Labor Management Relations Disclosure Act (LMRDA).  The complaint alleges various acts of wrongdoing to get the CBA approved including not making spanish-language translations of the materials available, throwing people out of a meeting who had questions about the CBA, and "stuffing" ballot boxes by giving certain members more than one ballot.  Magistrate Joseph C. Spero stated that the Union has no obligation to provide complete or truthful information, but removing people from meetings and ballot stuffing amounts to discrimination actionable under LMRDA.  He granted the motion to dismiss in part and denied it in part.

Dang v. Sutter's Place raises a lot of the issues found in Carr above.  Here, Ms. Dang is represented by very able counsel who is able to frame her claims in terms that do not require interpretation of the CBA and therefore are not preempted by LMRA.  Ms. Dang claims she was not paid overtime under state or federal law, Sutter's Place (doing business as Bay 101) counters that this requires interpretation of the CBA which calculates overtime in five minute increments as oppose to fifteen minute increments under federal law.  Judge Ronald M. Whyte stated:

Although plaintiff's overtime claim isbased in part on entitlement to overtime compensation for missed rest and meal break periods,interpretation of the CBA is not necessary for a determination of whether plaintiff in fact was precluded from taking her breaks. Thus, the second cause of action is not preempted.

He denied the motion to dismiss.

Northern California Judge finds check collector and attorney personally liable for predatory practices

Richard Carrizosa and Mary Pea are the lead plaintiffs in a class action against Legal Recovery Services (LRS), its owner Alan Mecham and its attorney Paul Stassinos for violating the Fair Debt Collection Practices Act (FDCPA) and California's Unfair Competition Law (UCL).

The plaintiffs allege that LRS received returned checks from merchants and wrote a series of letters to the plaintiffs.  The first letter, was under the stationary of the merchant stating that the consumer's bank returned the check and it now sought payment.  The second was a more stern version of the first.  The third was the 30-day notice required by Cal. Civ. Code Section 1719.  The fourth informed the debtor that he or she was now liable for treble damages and prejudgment interest.  Mr. Stassinos then sued the defendants in superior court, frequently obtaining default judgments.

In January 2009, the plaintiffs and Mr. Stassinos both sought summary judgment.  The plaintiff's claimed that sending letters under the header of another is a violation of FDCPA.  Further, in the case of joint checking accounts asking for treble damages from both parties instead of the person who signed the check is a violation of law.  Similarly, prejudgment interest and treble damages are available in the alternative, not in conjunction with one another.  As the court explained, all of these allegations were founded.

Mr. Stassinos defended by stating that he made a "bona-fide error" by asking for both prejudgment interest and treble damages and that he should be held harmless for the mistake.  Judge Ronald M. Whyte explained that a Circuit split exists as to whether a legal error alone can be a "bona-fide error." Compare  Baker v. G.C. Servies Corp. (9th Cir. 1982) (holding it is) with Johnson v. Riddle (10th Cir. 2002) (holding it isn't).  Notwithstanding criticism of Baker, Judge Whyte found that Mr. Stassinos violated FDCPA for these three reasons and ruled for the plaintiffs.  In June 2010, the Court stayed the proceeding against Mr. Stassinos because he filed for bankruptcy.

In the current motion the plaintiffs seek summary judgment against Mr. Mecham, which Mr. Mecham did not oppose.  The plaintiffs argue that Mr. Mecham is a debt collector because he is actively involved in LRS's business - debt collection.  Judge Whyte agreed:

LRS and Mecham are jointly and severally liable to the class for $150,154.08 in actual damages and restitution and $73,499.27 in prejudgment interest, for a total of $223,653.35.

The case is Carrizosa v Stassinos No. C 05-2280 and the summary judgment motions are below the jump.

Northern California Judges Rule in Civil Rights Cases

The Civil Rights Memorial.  Photo Courtesy of wikimedia.

Northern California judges have recently ruled in a series of civil rights cases.

In O'Haire v. Napa State Hospital, Paul O'Haire was found not guilty by reason of insanity in 1999 and has been at Napa State Hospital since.  It's not entirely clear why he is suing the hospital, but he is having some difficulty.  He has tried several time to serve defendants at the hospital, but each time the process server has been unable to reach the defendants.  Instead, the server has left the complaints in a box at the hospital signed by the person at the front desk.  Both parties agree that service is insufficient, but Judge Ronald M. Whyte gave the defendant until August 10, 2010 to complete service.  It is not immediately clear why he picked a date two months in the past.

Royal v. Martel is a petition for habeas corpus.  A jury convicted Mr. Royal of various sex crimes and the trial judge sentenced him to 79 years in prison.  He now states that his conviction was procured by prosecutorial misconduct, juror misconduct, ineffective assistance of counsel, admitted evidence was improper and there should have been a jury instruction on duress. Essentially, his attorney had to recuse himself when the prosecution put a witness on its list who conflicted out the attorney.  A juror admitted she knew the investigator.  His attorney struggled to understand the complexities of the case and had to ask the prosecutor for assistance. Judge Ronald M. Whyte denied the petition stating that these allegations are conclusory and do not indicate a procedure contrary to the precedents of the U.S. Supreme Court.

In Hall v. Tehrani, a pro se prisoner is suing a prison psychologist under 42 U.S.C. Section 1983 for creating a false psychological evaluation in preparation for a 2008 parole hearing.  Mr. Hall claims this is in retaliation to his filing a number of prison grievances in violation of his First Amendment right to express himself.  Judge Ronald M. Whyte stated that he is unaware of any Constitutional right to have a properly done psychological evaluation, but this could be the proper subject for a petition for habeas corpus.  However, the retaliation allegation is a sufficient constitutional complaint.  He dismissed the evaluation claim but allowed the retaliation claim to face a motion for summary judgment.

In King v. San Francisco Community College District , the plaintiff was a student at SFCC from Fall 2006 until he was suspended in 2009.  He sues under nearly every state civil rights statute claiming,

for more than two years he was repeatedly "stalked, threatened, sexually harassed, harassed and terrorized" on the District’s campuses while he was enrolled as a student.Although he made numerous complaints to the District’s administration and police department, the stalker was allowed to remain on campus "unpunished and unchallenged." Instead of responding to his complaints, King contends that the District and named defendants retaliated against him.He was arrested by the District Police Department, suspended from classes, and prevented from completing his degree.King alleges that these actions were motivated, in part, by unlawful discrimination.He claims that the District and named defendants engage in racial profiling and also apply a "gender-based, dual standard" in responding to victims of crimes.

At this stage his complaint fails for primarily technical reasons.  He sued the District and individuals, but never served the individuals.  That claim fails because all California School Districts are state agencies which are immune from suit under the 11th Amendment. Belanger v. Madera Unified School Dist. (9th Cir. 1992) ("An analysis of the five Mitchell [v. Los Angeles Community College Dist. 9th Cir. 1988)] factors demonstrates that the school district in this case is a state agency for purposes of the Eleventh Amendment.") He sues SFPD but fails to explain their basis for liability in his complaint.  His factual allegations are too general to sustain claims under Title IX of the Civil Rights Act and "sexual harassment" without reference to a statute. Judge Richard Seeborg dismissed the complaint with leave to amend.

Northern California Judges Rule in Patent Cases

This is an image from Fortinet's firewall patent.
Image Courtesy USPTO.

This blog has previously covered the patent infringement suit in Fortinet v. Palo Alto Networks. Fortinet filed a declaratory judgment action seeking to declare it was not infringing on Palo Alto's patent for a computer firewall.  Judge Ronald Whyte explained that the patent describes a method of filtering information where the method determines what the packet is not and then tries to figure out what the packet is by eliminating possibilities.  It's not clear what Fortinet's system does since the Court redacted that part of the opinion, but it found that it did not infringe the patent.  Judge Whyte again granted partial summary judgment on that count.

This is a drawing from MShift's mobile banking patent.  Image Courtesy USPTO.

In MShift v. Digitial Insight Corp the plaintiffs had a patent on a mobile banking system which it alleged the defendants infringed upon.  MShift and Digital Insight were partners for mobile banking systems before their relationship went sour and Digital Insight partnered with MMV, another company.  MShift sued Digital and its customers alleging patent infringement.  According to court documents, the patent contains a method that allows mobile devices to communicate with a network even though both may utilize different programming languages.  The Conversion Engine, shown to the right, acts as a translator.  According to Judge William Alsup, in order to translate from the mobile device to the network site, both entities need to use different languages, otherwise a conversion is unnecessary.  Here, Digital Insight argues that it is using the same output language on the mobile device as is found on the network site.  Since this process does not contain the limitation found in the patent there is no infringement.  Judge Alsup granted summary judgment for Digital Insight.

Northern California Courts deny petitions for Habeas Corpus

One of the very first posts on this blog dealt with the standard of review for petitions for Habeas Corpus in light of the Ninth Circuit's decision in Hayward v. Marshall.  Under California law, the governor reviews decisions of the parole board to determine whether parole should be granted.  That review is plenary, but the Ninth Circuit stated that decisions to deny parole must be based on "some evidence of dangerousness" rather than " an unreasonable determination of the facts in light of the evidence."  The governor is free to disagree with the parole board as long as there is some evidence for his decision.  Nonetheless, many judges are now asking parties to brief how the case should affect disposition of habeas petitions (if at all).

In Sizemore v. Curry, the petitioner stated the parole board's decision was irrational.  The state presented evidence that the petitioner with others robbed one victim, stole his winnebago, drove it to a gas station, robbed and kidnapped the attendant, left the RV with his cohort during which time the attendant took the RV and fled.  The state noted the petitioner had three major and three minor infractions while in prison and had no plans about what to do in California upon release.  The parole board denied his parole and the governor affirmed.  Judge Richard Seeborg ruled that this constituted "some evidence of dangerousness" and denied the petition.

Johnson v. Campbell involved an inmate who's pro se petition stated that the parole board always denied everyone's parole and that she had a constitutional right to parole.  Judge Ronald Whyte noted that Hayward overruled Biggs v. Terhune (9th Cir. 2003) ("A continued reliance in the future on an unchanging factor, the circumstance of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation.") There is now no due process right to habeas review of a parole hearing as long as it is based on "some evidence."  He denied the petition.

Northern California Judges rule in Civil Rights cases

The Civil Rights Memorial.  Photo Courtesy of wikimedia.

Avery v. Thomspon is a pro se prisoner civil rights case. Kyle Whelan Avery wants Officer Thompson to give him his religions materials back.  The Officer explains, "the materials were confiscated because I.S.U. concluded the materials were not religious- based but propagated 'neo-Nazi' and white supremacy beliefs instead."  Mr. Avery explains that he is a white supremacist, but a peaceful one and that he needs his materials to practice his religion.

Judge Ronald Whyte noted that Officer Thompson does not dispute that the Odinism is a religion or that Mr. Avery practices it.  Rather, he merely asserts that the prison has a legitimate interest in keeping prisoners away from supremacist material.  The Court explained this argument fails.  In McCabe v. Arave, the Ninth Circuit held that a prison could not make a blanket ban on supremacist literature, rather it needed to explain how that literature caused a threat to the prison.  Judge Whyte gave both parties an opportunity to conduct discovery and try for summary judgment again.

In Pete v. City of Oakland, the plaintiff is suing the city and a parking garage for refusing to rent the parking garage to him which he argues is because of race.  He is suing stating that the refusal to rent the garage is a "threat[], intimidation or coercion" which is actionable under the Bane Act. Cal Civ Code Section 52.1.  Judge William Allsup disagreed and stated that in order to plead a Bane Act action the plaintiff must show a threat.  Since there was no stated threat he dismissed the complaint with leave to amend.

Haskins v. Ayers is a prisoner petition for habeas corpus.  After receiving a motion for summary judgment, Mr. Haskins asked Judge Claudia Wilken to appoint counsel for him in order to assist him in filing a response.  The Court explained that appointment of counsel is only permitted where 1) there is a likelihood of success on the merits and 2) the issues are complicated.  Judge Wilken found neither consideration present and denied the motion.

Northern District of California Judge orders MRI company to refund deposit

An MRI Machine, Photo courtesy of Wikimedia.

San Jose Judge Ronald M. Whyte granted judgment for Matt Malek Madison in an MRI machine sale after a bench trial week long bench trial at the end of August.  The judgment required Fonar Corp. to return Mr. Madison's $300k with prejudgment interest from 2006.

According to Court documents, Mr. Madison sought FONAR Corp. to purchase four MRI machines for installation in the Bay Area.  He provided a $300,000 deposit and the rest would be paid upon his finding a suitable location for the machines.  Mr. Madison "did little" to locate such a place, mostly because he could not find other investors to raise the capital.  He wrote FONAR and asked for his deposit back.  As Judge Whyte explains:

The parties disagree as to what was intended by the language: "After 90 days if we do not find any location, we will request full refund of the deposit (at any time before 12 months)." FONAR claims it meant that Madison was not entitled to a refund if he failed to request it within the twelve month period. Madison, on the other hand, submits the language was intended to provide that FONAR was to pay interest on his deposit from the date he requested a refund (at least 90 days after his deposit) to the date on which FONAR actually returned the deposit during the 12 month period. The language, according to Madison, did not require him to make a demand for the return of the deposit after 12 months because FONAR was obligated under FONAR’s Terms of Sale to return the deposit if locations were not found within the 12 month period.

Judge Whyte noted that the contract clause, most reasonably meant that Madison would receive his deposit back if the parties could not agree on a location for the MRI machines.  Accordingly, he granted judgment for Mr. Madison with prejudgment interest dating from the time FONAR refused to give the deposit back.

The Case is Madison v. FONAR Corp. No. C 07-4211 and the opinion is below the jump.

Northern California Daily Digest

In Ignacio v. IRS, "Tevis R. Ignacio, also known as John Jacob Jingleheimer Schmidt [I know, that's my name too], proceeding pro se, filed a complaint" alleging the defendant's "abuse of power" for charging him penalties and interest for filing a fraudulent tax return.  Judge Jeremy Fogel dismissed the claim without prejudice for failure to state a claim upon which relief can be granted.

Fortinet v. Palo Alto Networks is a patent infringement case.  Fortinet filed a declaratory judgment action seeking to declare it was not infringing on Palo Alto's patent for managing communication.  The order seems to combine a Markman hearing and a summary judgment hearing where the court interprets the claims and makes a determination on infringement.  Judge Ronald M. Whyte interpreted the patent to cover "a communication [with] an unknown destination." Fortinet claims and Palo Alto does not dispute that Fortinent's systems do not know how to route a communication with an unspecified destination.  Since the claims do not cover a known destination there is no infringement.  Judge Whyte granted summary judgment for Fortinet.

In re Bare Escentuals Security Litigation is a class action securities case where the plaintiffs accuse Bare Escentuals (along with its officers and directors) of making a series of misstatements about its products profitability and "cannibalizing" profitable channels. Additionally, Bare Escentuals engaged in the "club" sales practice of billing many consumers monthly for products delivered monthly.  Consumers asked it to take the products back and refund their money resulting in a sales adjustment of $9M.  This blog has covered the difficulties of pleading securities fraud.  Here, the plaintiffs did not do themselves any favors by failing to respond to the company's assertion that it did not make any false statements.

In opposition, however, plaintiffs do not substantively respond to the majority of defendants' arguments. Rather, plaintiffs merely counter that it would be "impossible to meaningfully summarize the 100+ page complaint here in order to outline every class period misstatement." See Op. Br. at 10-16. By failing to at least meaningfully summarize and combat the various categories of statements highlighted by defendants, however, plaintiffs have essentially abdicated their responsibility to rebut defendants' dismissal arguments, and conceded the point.

Judge Phyllis J. Hamilton dismissed the case with leave to amend.

Jordan v. Paul Financial is a class action Truth in Lending Act action about payment Option Adjustable Rate Mortgages.  As this blog has explained before, these products are a frequent subject of litigation.  Royal Bank of Scotland (RBS) purchased the mortgages and Judge Susan Illston dismissed RBS from the lawsuit as the statute of limitations had expired on the TILA claims against it.  However, the plaintiffs did successfully plead a fraud claim against Paul Financial which will go into discovery.

Northern California Daily Digest

Here are some of the other interesting cases filed on Friday:

In Means v. City and County of San Francisco, the plaintiff, a nurse, claimed she was harassed by coworkers who called her "black and ugly" in Tagalog (pangit itim nasyr) "so much from men and women on just about every [hospital] ward [she] went."  The City responds that Ms. Means can only remember two people calling her that and could not remember the name of one of those people.  Judge Thelton Henderson found that this dispute created a genuine issue of material fact as to whether "the conduct was sufficiently severe or pervasive to alter the conditions of Means’s employment" under Title VII of the Civil Rights Act or the California Fair Employment and Housing Act.  the Court denied summary judgment and set the case for trial.

In Gerstein v. CIA, the journalist wants a list of names from the Department of Justice's Office of Professional Responsibility to see who DOJ has been investigating under the Freedom of Information Act.  DOJ claims the names are protected under the exemption prohibiting disclosure of private personal information.  Judge Maxime M. Chesney is not sure who is right and wants the CIA to disclose the titles of the people involved to determine if they are high ranking enough to evade protection under that exemption.

Hynix v. Rambus is a long-lasting patent infringement case which is now on appeal. Hynix lost at trial and, given its precarious financial situation, was asked to post a bond in the form of a mortgage on a factory.  Now, Hynix has recovered and would rather mortgage the factory to expand the business.  Judge Ronald M. Whyte thought that was reasonable and asked Hynix to post a cash bond allowing it to lift the mortgage.

Salsman v. Access Systems Americas involves discovery dispute gone bad.  At a status conference, Access said that Salsman had never provided a formal discovery request.  Salsman sued for a violation of the False Claims Act stating he had made such a request.  Magistrate Patricia V. Trumball stated that Salsman's discovery request was not formal and therefore there was no alleged violation of the FCA.  She dismissed the complaint with leave to amend.

Northen California Plaintiffs use 1983 Action to sue for Mother's Death

Federal Judge Ronald M. Whyte denied portions of the City of Salinas' motion for summary judgment against the estate of Maria Irma Della Torre and her children for events surrounding Irma's death on July 13, 2008.

According to court documents, on that date, Irma suffered a seizure and her family called 911.  At that point, Irma locked herself in her sister's car.  The plaintiffs allege that when the police arrived they tazered Irma and shot her three times resulting in her death.  Irma's daughter Maria and son Licea are suing under 42 U.S.C. Section 1983 and California Civil code Section 52.1 for a violation of their First Amendment right to associate with their mother.  Licea is also Irma's successor in interest, who is not pursuing unlawful seizure claims.  Instead, as the Court put it, "Oddly, [Licea] takes the position that as Irma's successor in interest, he may assert a Fourth Amendment claim based on the right to familial association."

The defendants move for judgment Maria's claims on grounds that she was in Mexico on July 13, 2008 and Section 1983 requires a "contemporaneous presence" in order to sue.  The Court disagreed, "Not only does this result seem illogical, it is contrary to Supreme Court precedent."  The 1983 claim is grounded in Lee v. City of Los Angeles (9th Cir. 2001) which held that a mother can sue after her son's death for loss of a familial relationship.  The Court expanded that holding to include a child suing for the loss of her mother.


The court went on to explain that two kinds of actions can be made after a person's death for acts related to that death: wrongful death claims cover the death itself and survival are for the suffering incurred for the time between the injury and death.  Bay Area Rapid Transit District v. Superior Court (Cal. App. 1995) held that Section 52.1 does not include a wrongful death claims.  The Court noted the case was silent as to survivor claims and that the Eastern District of California had found that a survivor claim can be made.  It allowed the survivor claim to go to trial.

The case is Della Torre v. City of Salinas No. C 09-0626 and the opinion is below the jump.

Facebook seeks injunction in Northern California to require Teachbook to change its name

MediaPost reports that Facebook has filed a complaint against Teachbook in U.S. District Court for Northern District of California for trademark infringement.  This appears to be your classic trademark infringement dispute.  Trademarks are used to identify goods in commerce.  Facebook claims that Teachbook's name will confuse people into thinking its products are Facebook's.  Teachbook volleys back and says that no such confusion exists.

Teachbook, according to its website is "a professional community for teachers" who can join and then, "create, share and search a database of lesson plans and instructional videos...."

The case is Facebook, Inc. v. Teachbook.com, No. 10-3654 and Judge Ronald Whyte is presiding.