California Employment Law Notes - January 2014

TV Station's Failure To Hire Weather News Anchor Was Protected By Free Speech Rights

Hunter v. CBS Broadcasting, Inc., 221 Cal. App. 4th 1510 (2013)

Kyle Hunter sued CBS Broadcasting for age and gender discrimination after it refused to hire him as a weather news anchor. Hunter alleged that CBS "repeatedly shunned him for numerous on-air broadcasting positions due to his gender and age" and that excluding him was "part of a plan to turn prime time weather broadcasting over to younger attractive females." In response to the complaint, CBS filed a motion to strike pursuant to Cal. Code Civ. Proc. § 425.16, asserting that its selection of on-air weather reporters qualified as a protected exercise of its free speech rights. The trial court denied CBS's motion, but the Court of Appeal reversed, agreeing with the station that the selection of a news anchor is conduct in furtherance of the exercise of free speech rights. The Court remanded the matter to the trial court to determine whether Hunter had demonstrated a reasonable probability of prevailing on the merits - an issue the trial court had not reached. See also Kurz v. Syrus Sys., LLC, 221 Cal. App. 4th 748 (2013) (employer's cross-complaint against wrongful termination plaintiff for malicious prosecution of claim for unemployment benefits should have been stricken under anti-SLAPP statute).

Malpractice Claim Against In-House Counsel Should Not Have Been Dismissed

Yanez v. Plummer, 221 Cal. App. 4th 180 (2013)

Michael Yanez sued his former employer, Union Pacific Railroad Co., for wrongful discharge as well as Union Pacific's in-house counsel, Brian Plummer, for legal malpractice, breach of fiduciary duty and fraud. Union Pacific fired Yanez for dishonesty based upon a discrepancy between a witness statement that Yanez wrote and a deposition answer that he gave concerning another employee's on-the-job injury. At the deposition, Plummer represented both Union Pacific and Yanez (without first obtaining informed written consent from the clients as required by Rule of Prof. Conduct 3-310(C)). Yanez claimed the alleged dishonesty was a simple miswording in his witness statement that Plummer "manufactured [during the deposition] into something sinister for Union Pacific's benefit." The trial court granted summary judgment in favor of Plummer on the ground that Yanez could not meet the causation element of his claims. However, the Court of Appeal reversed, holding that it was Plummer's conduct during the deposition (in which Plummer questioned his own client) that highlighted the discrepancy between Yanez's deposition testimony and a witness statement Yanez had previously written about the accident, which ultimately resulted in the termination of Yanez's employment. See also Optimal Markets, Inc. v. Salant, 221 Cal. App. 4th 912 (2013) (Cal. Code Civ. Proc. § 128.7 sanctions motion against attorneys who prosecuted allegedly frivolous trade secrets claim in arbitration was properly denied).

Court Affirms $700,000 Attorney's Fee Award To Demoted Employee Who Recovered Only $27,280

Muniz v. United Parcel Serv., Inc., 2013 WL 6284357 (9th Cir. 2013)

Kim Muniz sued UPS for employment discrimination based on various theories, but proceeded to trial only on her claim of gender discrimination in violation of the Fair Employment and Housing Act. The jury found in favor of Muniz only with respect to her claim that her demotion from division manager to supervisor was based on her gender and awarded her a total of $27,280 for lost earnings, medical expenses and non-economic damages. After the trial, Muniz requested that the court grant her more than $1.9 million in prevailing-party attorney's fees, which the...