This article originally published in the Consumer Attorneys of California March/April 2018 Magazine. Download the PDF HERE.
When Yowan Yang walked into my office, he was a defeated man. Yang’s coworker attacked him at work and the company he worked for fired him for his purported role in provoking the attack. He could not find another job because he was fired “for cause” by his government contractor employer and he could not finesse a job interview without trying to explain how unfair he had been treated. As soon as he started to explain the “for cause” termination, the prospective employer lost interest.
Initially, I was concerned I could not prevail against the employer. The attacker, had made one prior comment to Mr. Yang where he referred to him as “this Korean guy.” Further, Yang had made no previous complaints against the assailant. California Labor Code section 3602(b) requires some affirmative misconduct on the part of the employer to be held liable for the assault. After writing a demand letter, the defendants produced internal emails, later confirmed by the Federal Aviation Administration, that the FAA required Yang’s termination because of his involvement in the altercation.
Anticipating a Motion for Summary Judgment, I took some time in drafting the Complaint. Then, while working on a Civil Code section 52.1 case, involving a client who was falsely arrested at work, it hit me. Our client had been threatened by the assailant prior to the assault. A unique aspect of California civil rights statutes is that the conduct does not have to be under Color of State Law as required by 24 USC §1983.
Civil Code section 52.1, subdivision (b) authorizes a civil action for damages:
If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state … [Civ. Code § 52.1, subd. (a); emphasis added]
To establish a violation of Civil Code section 52.1, the threats have to interfere with a person’s rights under the Constitution or the law. In this case, we focused on two. Civil Code section 43 states that, “…every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations.”
California Labor Code section 6401 states: “Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.”
While the attack was traumatizing to Mr. Yang, it was his struggle to find a job coupled with the debilitating anxiety, which led to significant diminution in his enjoyment of life. The employer argued their hands were tied as they were a federal contractor, the incident happened on Federal Property and the FAA insisted on his dismissal. We argued that the termination was a consequential damage of the Civil Code section 52.1 violation when violence was used against our client because he refused to leave the workplace even after his coworker told him if he didn’t leave he would kill him. We also argued that terminating someone because of his conduct in an incident where they were a victim of workplace violence was against public policy and constituted the positive misconduct required under Labor Code Section 3602(b).
In the ruling on the Motion to Dismiss, we enjoyed the serendipitous moment when the judge cited to our published decision in Xue Lu v. United States of America, (9th Cir. 2010) 621 F.2d 944 stating, “During the hearing, the parties discussed whether Plaintiff’s habits of chewing ice and placing soda cans in the freezer were actually work-related habits and whether the instant case was analogous to Xue Lu v. Powell, (9th Cir. 2010) 621 F.3d 944. … While Xue Lu encompasses factual distinctions, the Court believes that its holding is applicable to the instant action. …. Comparing Xue Lu to this matter, … [the Company’s] liability can hinge on Mr. Tymony’s assault because his wrongful conduct was in connection with Plaintiff’s habits at work, i.e. within the scope of employment. … As such, “California law makes …[the employer] bear the costs of [Mr. Tymony’s] conduct, unauthorized but incidental to the [information technology workplace].” Id. at 950.” The trial court replaced the defendant United States in Xue Lu with the defendant company in our case.
Although it’s often said that a case will never look as good as the first day your client walks into your office. this is not always true. Pursuing and obtaining discovery can often supply the evidence that our clients need to prevail. Here, the Defendants produced an FAA Spot report in which FAA special agents spoke with two eyewitnesses and Yang and Tymony and produced a written report confirming that it was Tymony that threatened to kill Yang, choked him briefly, and then destroyed his cubicle.
Not only was there an FAA report but there was an email from an employee complaining that a prior outburst by Tymony at a meeting in which he cursed at Yang was not the first time he had seen this type of behavior, and that Yang felt picked on but did not want to complain. The defendant human resources executives from Washington D.C. came across poorly and we were also able to undermine the defense narrative that the FAA requested Yang’s termination. We prevailed on all causes of action and $5 million in punitive damages were added to the compensatory damages totaling $7,393,540.00.
Civil Code Section 52.1 should always be considered whenever there is threatening, intimidating or coercive conduct. However, one also has to be wary of Civil Code section 52.1, subdivision (j), which states, in relevant part:
Speech alone is not sufficient … except upon a showing that the speech itself threatens violence against a specific person or group of persons; the person … against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.
But there does not always have to be a threat of violence. In our case against Home Depot involving the arrested employee, we were able to show that the employer confined her to a room and made threats to try to get her to admit guilt. We argued that this confinement and the subsequent citizen’s arrest by loss prevention constituted conduct, not speech, and therefore was sufficient even though violence wasn’t threatened per se.
Defendants, especially in police misconduct cases, like to argue the case of Shoyoye v. County of Los Angeles, (2012) 203 Cal.App.4th 947, 959, where the Court injected a requirement not contained in the statute holding that, “[w]hen coercion is inherent in the constitutional violation alleged, an independent showing of coercion is required.” The plaintiff in Shoyoye was an inmate who was not timely released from jail despite his repeated protests that he was being incarcerated too long. The Shoyoye Court could have stopped with its recognition that, “[t]he statutory framework of section 52.1 indicates that the Legislature meant the statute to address interference with constitutional rights involving more egregious conduct than mere negligence.” Id. But by resting its holding, reversing the trial court judgment and dismissing the 52.1 cause of action on the fact that “there was no evidence of any coercion independent of that inherent in a wrongful detention itself”, it lent itself to arguments that a 4th Amendment excessive force violation needed to violate a different right than the 4th Amendment because there is always some element of force or coercion in a wrongful arrest or excessive force case.
Indeed, in a case I tried in Los Angeles Superior Court, the trial court came within a whisper of dismissing our Civil Code section 52.1 Cause of Action, where the Officer injured a disabled man whose stroke condition caused his left arm to be semi-paralyzed such that he could not move it to comply with police commands to put his arm over his head. The LAPD ignored the pleas of our client and his sons that he was a disabled stroke survivor who could not move his arm. The Court was convinced that we could not use the prohibition against excessive force inherently contained in the 4th Amendment to vindicate our client’s rights under Civil Code section 52.1. However, the Officers told the family to shut up when they were exercising their First Amendment Right to explain his stroke condition. The Court allowed us to proceed on the separate threats and intimidation of his First Amendment rights, a decision that is arbitrary. Thus, it a hard decision not to be safe and allege Section 1983 Causes of Action in most excessive force cases which will bring your case into Federal Court.
However, most California Courts of Appeal have declined to so extend the holding of Shoyoye. In Bender v. County of Los Angeles, 217 Cal.App.4th 968, 977 (2013), the Court emphatically stated “[b]ut defendants have fundamentally misread Shoyoye, which in no way suggests an unlawful arrest—when accompanied by unnecessary, deliberate and excessive force—is not within the protection of the Bane Act.”
In the recent case of Cornell v. City and County of San Francisco (2017) 17 Cal.App.5th 766, 799 the Court stated emphatically “that the use of excessive force can be enough to satisfy the “threat, intimidation or coercion” element of Section 52.1…” and went on to hold that Civil Code section 52.1 could be violated where there was a false arrest. Specifically, the Cornell case held, “that, where, as here, an unlawful arrest is properly pleaded and proved, the egregiousness required by section 52.1 is tested by whether the circumstances indicate the arresting officer had a specific intent to violate the arrestee’s right to freedom from unreasonable seizure, not by whether the evidence shows something beyond the coercion “inherent” in the wrongful detention.” Id. at 801-02.
Nonetheless, a legislative fix is needed to avoid further overreach by the Courts denying people the right to redress under California law. One simple fix would be to add the following to Civil Code section 52.1: “The right exercised or enjoyed under subdivisions (a) or (b), may be the same right interfered with or attempted to be interfered with by threats, intimidation or coercion to form the basis for a civil action.” In this way, the core of the Shoyoye decision remains intact, mere negligence cannot form the basis of a civil rights claim. However, it would negate the absurd result that if a police officer threatens to violate the 4th Amendment right of an individual, then he or she could not be held liable for using excessive force because the 4th Amendment also protects against unreasonable force in making a seizure of a person.
In addition to Civil Code section 52.1, California has several additional civil rights statutes which can be utilized in cases involving discrimination, harassment or violence and which allow for penalties and attorneys’ fees.
California Civil Code section 51.7 reads, in relevant part: “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.”
In a case against Walgreens, we successfully used this statute when a security guard threatened our client with arrest if she did not give him her phone number, essentially engaging in quid pro quo sex harassment. He knocked a cell phone out of her hand when she was speaking to her friend who called to see if she was ok. The friend just happened to be Kristy Swanson from the original Buffy the Vampire movie. The jury agreed that the violence and threats towards her was because of her gender awarding $2.1 million in damages for the conduct, which included a false arrest resulting in one night in jail, in addition to our attorneys’ fees.
In a recent case we filed, Civil Code section 51.7 was utilized in connection with a Venice Boardwalk shooting where a hotel security guard shot at homeless people, with mental and physical disabilities. We hope to successfully broaden the particular bases for recovery to extend to homeless individuals.
In this era of #metoo and #timesup, and as more women and men who have been harassed come forward, Civil Code section 51.9 provides an outlet where the sex harassment is not of an employee in certain types of relationships where there is a power differential. There must be “a business, service, or professional relationship between the plaintiff and defendant.” The defendant is liable for sex harassment if he or she “has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.” Moreover, the Plaintiff must prove that, “[t]here is an inability by the plaintiff to easily terminate the relationship.”
Civil Code section 51.9 also includes damages allowed under Civil Code section 52.1 which include actual compensatory damages exemplary damages, a penalty of $25,000.00 and Attorneys’ Fees. Accordingly, a statutory violation can be a powerful tool in litigating harassment cases.
Civil Code section 51, also known as the Unruh Civil Rights Act, can be used when someone is harassed or discriminated against at any business. “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
We have used this statute in access cases, such as when Angels Stadium did not provide comparable wheelchair seating, cases involving businesses that serve food or alcohol, such as when our client was removed from a club when she was in a bathroom stall for a long time because of a physical disability or cases involving mental health services, against the police or mental health facilities.
In another case we are handling, the Orange County Coroner informed our clients that their mentally ill, homeless son and brother was dead, and after a big Catholic funeral with a body they were informed was their family member, he turned up alive at one of the pall bearers’ homes. We alleged a violation of Civil Code section 51 as the Coroner’s Office’s shoddy, and dishonest, handling of the situation exhibited contempt and carelessness because the deceased was homeless and mentally ill.
A violation of the American with Disabilities Act also constitutes a violation of Civil Code section 51. The protected class also “includes a perception that the person has any particular characteristic or characteristics within the listed categories or that the person is associated with a person who has, or is perceived to have, any particular characteristic or characteristics within the listed categories.” Civil Code section 51, subdivision (e)(6).
A violation of Civil Code §51 can be especially powerful because Civil Code section 52, subdivision (a) states: “[w]hoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Sections 51, 51.5, or 51.6, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney’s fees …” When there is an ongoing access denial, one can argue that each day of the denial is a separate offense and the $4,000 adds up.
Disabled persons have broad protection to insure their equal access of businesses. Civil Code section 54.1 states directly,
Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, medical facilities, including hospitals, clinics, and physicians’ offices, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances or modes of transportation (whether private, public, franchised, licensed, contracted, or otherwise provided), telephone facilities, adoption agencies, private schools, hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited …
Civil Code section 54.3 also allows for a $1,000.00 a day penalty plus attorneys’ fees in addition to actual compensatory damages. Again, where the violation is on-going, such as a case we just began where a gentleman with cerebral palsy employed in a mall is basically trapped on the floor he works on because of inoperable elevators, the penalties can add up. Neglected and ignored simple fixes, cause disabled persons emotional anguish and distress which increases the hardships they already face. In a recent case, a Superior Court jury awarded $5.2 million to a man whose prominent Los Angeles landlord and property manager failed to fix elevators allowing him access to his apartment.
California Law allows for a variety of legal theories to be advanced when someone discriminates against, harasses or threatens violence against individuals. These remedies should always be considered when potential clients contact us. The hammer of attorneys’ fees is a powerful tool for change and to provide full and fair compensation to our clients.
Jim DeSimone is the founder of V. James DeSimone Law, a litigation practice serving Los Angeles. Our Marina Del Rey based office litigates cases involving civil rights, employment, police brutality, and personal injury. Mr. DeSimone is also a member of the Bohm Law Group, Inc.
1) Labor Code Section 3602(b) reads in relevant part: “An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances: (1) Where the employee’s injury or death is proximately caused by a willful physical assault by the employer.” While initially we contended that the employer was liable under a theory of respondeat superior because the altercation occurred over an argument about who should move cubicle spaces, so it was work related, California law requires more when the assault in committed by an employee. Fretland v. Cty. of Humboldt, 69 Cal. App. 4th 1478, 1488 (1999). In Fretland, the court recognized employer liability based on positive misconduct, and gave one example as ratification. Id. at 1489 (recognizing that “the prohibition against imposing vicarious liability on an employer does not apply when there was positive misconduct by the employer such as when the employer ratified the tortious conduct of its employee….” [emphasis added])
2) In Xue Lu, an asylum officer attempted to extort money and demand sexual favors in return for approving our clients’ asylum applications. The Ninth Circuit reversed the trial courts dismissal based on the course and scope of employment issue and allowed us to proceed on §52.1 cause of action under the Federal Tort Claim Act.
3) California Civil Code section 51(b) establishes: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. [emphasis added].
4) Civil Code Section 51.9, subdivision (a)(1) states, “Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons: (A) Physician, psychotherapist, or dentist. For purposes of this section, “psychotherapist” has the same meaning as set forth in paragraph (1) of subdivision (c) of Section 728 of the Business and Professions Code (B) Attorney, holder of a master’s degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner loan officer, collection service, building contractor, or escrow loan officer (C) Executor, trustee, or administrator (D) Landlord or property manager (E) Teacher. (F) A relationship that is substantially similar to any of the above.