On November 30, 2009, the California Supreme Court issued its opinion in Roby v. McKesson Corporation, Case No. S149752.(Roby v McKesson ). For the first time, the Court directly addresses the federal constitutional limitations in awarding punitive damages, holding that the punitive damage award should not exceed the amount awarded as compensatory damages:

      “. . .we conclude that a one-to-one ratio between compensatory and punitive damages is the federal constitutional limit here. We base this conclusion on the specific facts of this case. We note in particular the relatively low degree of reprehensibility on the part of employer McKesson and the substantial compensatory damages verdict, which included a substantial award of noneconomic damages.” (Id. at 38-39).

       Charlene J. Roby sued her former employer McKesson (and her supervisor) for wrongful discharge based on her medical condition and related disability. She suffered from “panic attacks” that temporarily and on short notice prevented her from performing her job. Because of these attacks, Roby missed work and these absences led to her termination. The termination devastated her emotionally and financially, causing her to become agoraphobic and suicidal. Eventually, the U.S. Social Security Administration found her to be completely disabled.

       So, she sued McKesson (and her supervisor) alleging wrongful termination in violation of public policy, harassment in violation of California’s Fair Employment and Housing Act (“FEHA”), as well as discrimination and a failure to accommodate in violation of this same state statute, California’s FEHA.

       The jury found that Roby was wrongfully discharged based on her medical condition and related disability. Finding both harassment and discrimination, the jury awarded $3,511,000 in compensatory damages and $15 million in punitive damages against McKesson.

       On appeal, the court of appeal reduced the compensatory damages to $1,405,000 and the punitive damages to $2 million, and otherwise affirmed the judgment.

       The California Supreme Court reversed, with an instruction to the trial court to  reinstate a single harassment award of $500,000 against both Mckesson and the supervisor. Thus, the total compensatory award  equalled $1,905,000. It further instructed the lower court to modify the punitive damages award against McKesson to $1,905,000, or to be the same amount as the compensatory damage at a ratio of 1:1, based on its discussion and application of recent U.S. Supreme Court cases on this issue (see, State Farm Mut. Auto Ins. Co. v. Campbell (2003) 538 US 408 (State Farm v. Campbell )and BMW of North America v. Gore (1996) 517 US 559) ( BMW v. Gore).

       Needless to say, this ruling will evoke much discussion in the cyber world and around the water cooler.

       . . .Just something to think about.

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my dog-Argus

       In my last blog, I discussed one recent California Supreme Court decision that makes absolutely no sense. This week, I want to discuss another, People v. Olguin, Case No. S149303 (California Supreme Court, December 29, 2008.) It caught my eye because it is about pets, and I am a pet lover, (more specifically, dogs!. See Argus, above.)

       It seems that one of the conditions for probation in the County of San Bernardino is that the defendant notify his probation officer of the presence of pets at defendant’s place of residence. The probation officer has no unilateral power to do anything about or with this information (e.g. have it removed), but must get a court order to do so. The defendant must simply inform his probation whether he has a pet.

       Here, the defendant pleaded guilty to two counts of driving with a blood-alcohol level in excess of 0.08 percent by weight. Pursuant to a plea agreement, his prison sentence was suspended and he was placed on three years’ supervised probation.

       During his sentencing hearing, he requested that the word “pets” be stricken from the probation condition requiring him “to [k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes.” (Id. at 2.) His attorney urged this condition was unconstitutional and overbroad as it is not reasonably related to his future criminality and limits his fundamental rights.

       The trial court denied the request. Defendant appealed. In a split decision, the appellate court upheld the trial court.

       The Supreme Court agreed with the lower courts, finding that the defendant’s challenge lacked merit. As the Court illogically rationalized it:

      “Probation officers are charged with supervising probationers’ compliance with the specific terms of their probation to ensure the safety of the public and the rehabilitation of probationers. Pets residing with probationers have the potential to distract, impede and endanger probation officers in the exercise of their supervisory duties. By mandating that probation officers be kept informed of the presence of such pets, this notification condition facilitates the effective supervision of probationers, and, as such, is reasonably related to deterring future criminality.” ( Id. at 1.)

       In the ensuing pages of its opinion, the Court points out that proper supervision by a probation officer “. . .includes the ability to make unscheduled visits and to conduct unannounced searches of the probationer’s residence.” (Id. at 6). Thus, the safety of the probation officer is important, here. By being aware in advance that a pet exists on the premises, the Court points out, the probation officer can be “prepared” for the potential situation of a barking,  aggressive or territorial dog protecting her turf, should the officer decide to conduct an “unscheduled” compliance visit. Further, according to the Court, this advance knowledge of the existence of a pet also will facilitate the probation officer’s ability to conduct an unannounced search of the residence. Again, the Court rationalizes:

      “A pet, such as even a harmless small dog barking in the front yard, may act as a warning system, alerting the probationer to a probation officer’s  approach prior to the officer’s knock at the door and allowing the probationer to destroy or hide evidence of illegal activity; it also may distract the probation officer or prevent or delay the officer from entering a residence or conducting a search. . . .” (Id. at 7).

       The Court then emphasizes that this condition requires defendant only to inform his probation officer of the presence of pets and to give timely notice prior to any change in that situation. It neither forbids the defendant from owning a pet nor empowers the probation officer from forbidding pet ownership. (Id. at 8).

        Luckily, this decision was not unanimous. Justice Kennard dissented, noting that the majority’s reasoning is flawed because it treats all pets alike and as life threatening:

       “Falling within that reach would be Jaws the goldfish, Tweety the canary, and Hank the hamster, hardly the kinds of pets one would expect to strike fear in a probation officer.” (Dissent at 2.).

        More pointedly, the dissent points out the illogic of the majority opinion:

      “The majority expresses concern that pets may warn the probationer of the probation officer’s presence . . . I find that concern puzzling for two reasons. First, the probation condition does not solve the problem the majority poses because the probationer need only give notice that he or she has a pet; nothing in the condition prohibits probationers from having a pet (citation omitted.) Second, warning the probationer is irrelevant, because a probation officer cannot just barge into a probationer’s residence. The law requires knocking or other means of notice of the officer’s presence, and an announcement of the purpose of the visit (citation omitted.) This requirement itself warns the probationer of the officer’s presence.”
(Id. at 2-3.)

        Finally, the dissent notes that if anything, pets have proven their rehabilitative worth. The physical and mental health benefits of animal companionship at home have been well documented. (Id.)

       The only rationale I can fathom for this decision is that the California Supreme Court is not a pet loving court. Otherwise, it makes no sense.
 While I recognize this is a criminal and not civil case, it still confirms my view that people should resolve their own disputes and not leave it to the courts to do it for them. I sure am glad I am a neutral in the business of facilitating self-determination!

       . . .Just something (actually quite a lot) to think about!

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       Several months ago, I read an interesting article by Greg Katz in the Los Angeles Daily Journal entitled “Neutral to Take “Mediation Gone Wild” On Tour” (August 29, 2008). It seems that Michael D. Young, a neutral affiliated with Judicate West in Los Angeles, wrote an article in Alternatives (Vol. 25, No. 6, June 2007) about a civil dispute that went totally out of control. The article has brought Mr. Young his “15 minutes of fame.”

       The civil dispute epitomizes the adage that “life is stranger than fiction.” As Mr. Young discusses in his article, Joseph Francis is the founder and auteur of “Girls Gone Wild.” To film a sequel, Mr. Francis rented local houses and condos in Panama City, Florida during Spring Break 2003 and invited unidentified minor girls to be filmed, baring their breasts and engaging in various sexual acts.
 

      When the parents found out, they sued: Doe v. Francis, Case No. 5:03CV260 (N.D.Fla.) A criminal action was also filed, and while it was pending, nothing much happened in the civil suit.

       Then, in October 2006, United States District Court Judge Richard Smoak ordered the parties to mediation, requiring that they jointly select a mediator and share the cost of the mediator’s fee equally. He further ordered which parties must attend the mediation and that their failure to do so would result in the imposition of sanctions. The order also gave the mediator the authority to control the procedures to be followed in mediation and reaffirmed that confidentiality would attach to the process.

       The parties selected a mediator and agreed to a two-day session. On the day after the second session of the mediation, plaintiffs filed a motion for sanctions against defendant Francis.

       It seems that on the first day of the mediation session, the plaintiffs arrived on time. Francis and his attorney arrived four hours late allegedly because Mr. Francis’ private jet from Los Angeles was “running late” due to his Los Angeles’ attorney’s schedule. However, that L.A. attorney did not appear at the mediation.
 

      When Mr. Francis and his current counsel arrived, they were shown to a separate conference room as there was to be no joint session. Mr. Francis was wearing sweat shorts, a backwards base-ball cap and was barefoot;

      “. . . He was playing on his electronic devise [sic]. As [plaintiffs’ counsel] began his presentation, Francis put his bare, dirty feet up on the table, facing plaintiffs’ counsel. [Plaintiffs’ counsel] said four words, “Plaintiffs were minor girls,” when Francis barked, “Are the girls minors now?” Continuing [Plaintiffs’ counsel] said, “Plaintiffs are minor girls who were severely harmed by defendant.”

      “ Francis then erupted. Don’t expect to get a fucking dime – not one fucking dime!” This was Francis’ mantra which he repeated about fifteen times, during his tantrum that ensued.”
                                                                        . . .
     

      “As [Plaintiffs’ counsel] was walking out of the room, Francis got up and faced off with [Plaintiffs’ counsel]. Right in [Plaintiffs’ counsel] face, Francis barked, “I’m going to ruin you, your clients, and all of your ambulance chasing partners!”  
                                                                        . . .
     

      “Francis then made the only offer he was to make that day, “suck my dick,” Francis shouted repeatedly, as plaintiffs’ counsel left the mediation room.”
     (Id. at Alternatives at 2.)

        Based on the above, the motion sought an order that Francis pay sanctions and behave civilly.
 

      The court conducted a hearing on the motion, continuing it for purposes of holding an evidentiary hearing one-week later. Although both parties requested that the matter be kept under seal, the judge refused. The court further directed defendant Francis to appear personally at the evidentiary hearing dressed in proper business attire and abiding by the rules of etiquette. The court also warned Francis’ counsel that if, at the hearing, it determines the allegations of plaintiffs to be true, Mr. Francis may well end up in jail.

       One week later, the court conducted the evidentiary hearing. The court took testimony of witnesses as to what transpired during the mediation in terms of everyone’s conduct and communications. Mr. Francis was forced to testify and, according to his own attorney, may have committed perjury.

       Following this evidentiary hearing, the court found that defendant Francis “willfully and contumaciously violated” the pertinent provisions of the Court’s Scheduling and Mediation Order. (Id. at 4) As such, the court determined that Francis’ behavior could not be protected by the mediation privilege. Concerned that a financial sanction alone would not have the appropriate effect on Mr. Francis, the court ordered both that he reimburse plaintiffs their attorney’s fees and costs and ordered Francis to be incarcerated. But, the court delayed the commencement of the jail sentence until 4:30 p.m. the next day, ordering the parties to participate in another mediation session and to give defendant Francis time to participate in good faith and in appropriate business attire at such a session. The court ordered that defendant Francis would be released from jail “when the mediator certifies in person to the court that Mr. Francis has fully complied with this order and has participated in the mediation in good faith.” (Id. at 5)
 

      On the next day, the parties mediated and reached a settlement in principal. However, an impasse was reached regarding one of the terms of the settlement during the drafting of the agreement. The court viewed this impasse as an attempt by Francis to renege on his commitment to settle and so ordered Francis to report to the U.S. Marshall for incarceration. (The court had suspended the jail time pending the settlement.) When Francis failed to surrender as required, the court issued a warrant for his arrest, and Francis was arrested. The court issued an order to show cause why Francis should not be held in criminal contempt, setting a hearing date for several weeks later. The bases of the criminal contempt were his alleged perjury at the evidentiary hearing and his failure to surrender to the U.S. Marshalls as ordered.

       The next day, the civil case finally settled in full. But defendant Francis remained in jail pending the criminal contempt charges. Francis eventually pleaded guilty to violating the order to surrender to the U.S. Marshall. The first charge (that is,  committing perjury at the evidentiary hearing) was dismissed after his attorney submitted an affidavit stating that he did not believe Francis’ March 30 testimony was intentionally false. Based on the one charge, Francis was sentenced to 35 days in prison with credit for time served and fined $5,000.

       Needless to say – this episode raises a multitude of issues and concerns such as mediation confidentiality, the voluntariness of mediation, the self-determination of mediation, the admissibility of evidence,  the place, if any, of coercion in mediation, the concept of negotiated resolutions, good faith in mediation, and the  role of the mediator in the process as well as his/her immunity in this process. To address these issues would take quite a few more blogs. But I raise them in my continuing effort to give you. . .

       . . . Just something to think about.

*“Mediation Gone Wild: How Three Minutes Put an ADR Party Behind Bars” by Michael D. Young, appearing in Vol. 25, No. 6 issue of Alternatives, (June 2007).

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