California Appellate Lawyer Blog

Protecting the environment has become a noteworthy objective for conscientious consumers. Not surprisingly, commercial producers have tapped into this market in labeling products. What does such labeling actually tell a consumer about the product? One such consumer, Ayana Hill, thought the green drop on the label of Fiji bottled water meant the product was "environmentally superior" and "endorsed by an environmental organization." She bought the product twice a week starting in 2008 paying about 15% more than for other bottled water; she would not have bought Fiji water had she known the green drop was the company's own creation and not an endorsement of the product by a neutral organization that the product was environmentally superior. She further alleged the product in fact caused no less environmental damage than its competitors did.

In Hill v. Roll International Corp. (filed May 26, 2011) 2011 DJDAR 7641, the Court of Appeal, First Appellate District, Division Two, affirmed the judgment of dismissal on sustaining of demurrer to plaintiff Hill's complaint that included allegations of violations of California's Unfair Competition Law (UCL) and False Advertising Law (FAL) (Business & Professions Code section 17200 et seq. and 17500, et seq., respectively), Consumers Legal Remedies Act (CLRA) (Civil Code section 1750 et seq.) and common law fraud. The appellate court found that no reasonable consumer would be misled to think that the green drop represented the endorsement of a separate organization or that the product was environmentally superior.

Significant to the court's analysis was the Federal Trade Commission guides that have been incorporated by the California Legislature into the statutory definition of environmental marketing claims. (See Business & Professions Code section 17580.5, subdivision (a).) Those guides require substantiation that an express or implied claim conveys to a reasonable consumer an objective quality, feature, or attribute of the product. Hill's subjective beliefs alone do not satisfy this requirement. Moreover, the context of the green-drop symbol indicates that it bears no name or recognized group logo, no trademark, and no indication other than it is a symbol of Fiji water.

As the trial court proceedings here terminated at the pleading stage, the court was satisfied that even assuming everything Hill alleged was true, she still could not prevail. So UCL and FAL plaintiff attorneys need to pay close attention that their pleadings adequately allege that asserted misrepresentations are such that the typical, reasonable consumer would be mislead, not just that the named plaintiff was mislead. And of course, be prepared to prove that. The standard is that of an "ordinary consumer within the larger population." (Lavie v.Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 510.)

Television trial dramas tend to give us the impression that the verdict in a particular case will turn on a witness blurting out an admission to a magically determinative inquiry. However the real-life experience of most trial attorneys is that a trial consists more of a mosaic of evidence from which the fact-finder endeavors to draw a result consistent with the totality of the evidence.

In Mealy v. B-Mobile, Inc. (filed May 24, 2011) 2011 DJDAR 7497, the trial judge granted a nonsuit (motion for judgment under California Civil Procedure section 631.8) against Donald Mealy on his claims of loss of consortium and emotional distress primarily based on his cross-examination answer to one such "magical" question: "So this [wife Adelaide's accident] hasn't hurt your relationship with each other, has it?" His answer: "Not a bit." This apparently convinced the trial judge to grant the motion, finding that Donald's loss of consortium must be complete rather than partial in order to justify an award of damages and that his overall satisfaction with his marital relationship negated any loss of consortium.

The Court of Appeal, Second Appellate District, Division Three, reversed this part of the judgment, ordering remand and retrial of the limited issue of determining the amount of damages for Donald's loss of consortium. A bit of background: Adelaide had suffered for years from polio which caused complete paralysis in both legs; over the years various devices had been used to transfer her, for example, from bed to wheel chair, but she still lived an active life including the raising of five children and employment as a social services counselor. In August 2008, Donald was transferring Adelaide using defendant's lift system when the apparatus' sling gave way causing Adelaide a fractured hip. At trial, Adelaide recovered $555,128 based upon the finding of defendant liable for the accident and her injuries.

Continue reading "Loss of Consortium Need Not Be Complete Nor Must Spouse's Injury Hurt Relationship To be Compensable" »

CarMax instituted a pay plan for its sales consultants designed to avoid an incentive for salespersons to push customers to higher-priced vehicles. Rather than include in the salesperson's compensation package a percentage of the person's total dollars of sales, it would pay the employee a fixed payment for each vehicle sold. California Labor Code section 1194 requires employers to pay overtime; there is however an exemption if such a salesperson earns more than one-and-one-half times the minimum wage and "commissions" constitute more than one-half of the person's compensation.

In Areso v. CarMax, Inc (filed May 23, 2011) 2011 DJDAR 7271, plaintiff filed a class action primarily alleging that defendant failed to pay overtime to sales consultants. Her total pay and total per-car compensation (at the rate of $154 per car sold) exceeded the threshold requirements of the commissioned sales exemptions if her per-car compensation constituted a "commission." She argued this was not a commission. Defendant claimed it was, and moved for summary adjudication of this particular cause of action accordingly. The trial court granted the motion and the Court of Appeal, Second Appellate District, Division One, affirmed.

Because the summary adjudication disposed of only the first of six causes of action, the Court of Appeal first addressed the issue of appealability. (See my discussion in June 2 blog.) The second cause of action had previously been dismissed with prejudice, however the remaining ones were dismissed at plaintiff's request without prejudice. The court noted that a voluntary dismissal without prejudice generally is not a final judgment appealable on the merits, however, if the remaining causes of action are purely ancillary, the matter is appealable. Here one of the remaining causes of actions was not ancillary, but because the court found plaintiff's appellate brief had effectively waived her right to proceed on that action, the court cured the issue of a remaining cause of action by exercising its discretion to amend the judgment to reflect that the remaining cause of action was dismissed with prejudice.

Continue reading "Uniform Payment for Each Car Sold Constitutes "Commission" in Determining Car- Dealer Employee is Exempt from Overtime Pay " »

California Code of Civil Procedure section 904.1 provides the basic rules of what constitutes an appealable order. In this blog article, I wish to discuss some of the subtleties in making that determination.

Often attorneys attempt to appeal a case that gets dismissed as taken from a nonappealable judgment because of violation of the "One Final Judgment Rule." As the appellate court stated in Kinoshita v. Horio (1986) 186 Cal.App. 3d 959, at 966-967: "[P]iecemeal disposition and multiple appeals tend to be oppressive and costly." The objective here in strictly enforcing this rule is to avoid a multiplicity of appeals, reduce uncertainty and trial court delays, not allow an early appeal to be obviated by a later trial court ruling, and enable a complete adjudication that would allow specific instructions for further proceedings if necessary on remand.

A problem in application, however, is that the line is not always clear as to whether there is an issue left for further consideration by the trial court. On the one hand it might be said that if all that is left is compliance with the decree in question, the decree is final. On the other hand, if any judicial action by the trial court is necessary to an ultimate determination of the rights of the parties, the decree is not final. In short, what is determinative is substance rather than labels.

Continue reading "How Does One Determine Whether a Court Order or Judgment Is Appealable?" »

In re Lamps Plus Overtime Cases (filed May 10, 2011) 2011 DJDAR 6615 involved a chain of 29 stores in California being sued by three employees in its San Rafael store on behalf of themselves and similarly situated parties for alleged violations of labor laws including those pertaining to meal and rest breaks, the prohibition of off-the-clock work, and failure to provide itemized and timely wage payments. The Los Angeles Superior Court denied plaintiffs' motion for class certification. The California Court of Appeal, Second Appellate District, Division Eight, affirmed that order.

Plaintiffs' motion estimated putative class membership of 2,608 current and former employees. While the trial court was satisfied that the plaintiffs had established numerosity and ascertainability of the class, it concluded that individual issues predominated over common issues, in part because employers need only authorize and permit meal and rest breaks rather than ensure they are taken. In noting that there are presently two cases before the California Supreme Court on whether California law requires employers to ensure these breaks (Brinker Restaurant v. S.C. and Brinkley v. Public Storage), the appellate court agreed with the trial court, strongly stating its view that "(t)he notion that an employer must ensure all employees take their meal periods is utterly impractical," and that the plaintiffs' view of the law "does not make sense."

California Labor Code section 226.7, subdivision (a), for example, states that "[N]o employer shall require any employee to work during any meal or rest period." But this mandatory language, notes the court, is mandatory only as to providing breaks, not ensuring that breaks are actually taken." This interpretation is consistent with Federal court cases cited. Thus, class-treatment of this issue as proposed by plaintiff was not warranted. Regarding off-the-clock claims and asserted payroll violations, from the factual showing presented in the motion, these claim necessarily involved a fact-intensive investigation of each employee's individual circumstances.

A potential impact of this opinion is the encouragement of defense counsel wanting to avoid massive class action certifications by searching for and presenting facts that demonstrate any uniqueness in the claims of named and putative class members.

As someone who served nearly 21 years on the Court of Appeal, I am particularly struck by the boldness with which the appellate justices here reject plaintiffs' threshold argument in this case, while that issue is still pending before the Supreme Court. I think they are correct and credit their forthrightness, but most justices like to hedge their bets a bit.

Where a law firm is a prevailing party under California Code of Civil Procedure section 425.16, may it recover attorney fees generated on the case by an associate of the firm? This question is a variant of that posed in my last blog article (see May 23rd discussion of the recent Richards case). In Carpenter & Zuckerman v. Cohen (Filed May 10,2011) 2011 DJDAR 6665, the California Court of Appeal, Second Appellate District, Division Five, answered no.

The Carpenter & Zuckerman law firm (C & Z) prevailed, under the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, on a cross-complaint brought against it by Cohen, including the dismissal of an appeal from its trial court victory. As a part of its memorandum of cost, C & K requested attorneys fees as are authorized to the prevailing party on an Anti-SLAPP motion to strike an as ordered by the court. C & K associate attorney Candice Klein declared she had been "retained" by C & K as an independent contractor to represent the firm in its appeal of the order to strike; that she was entitled to charge the firm for her services in the form of a contingency fee that would entitle her to any attorney fees awarded; her fee request was for a lodestar hourly amount of approximately $22,000 multiplied by 1.5 for a total attorney fees claim of about $33,000.
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Cohen brought a motion to tax costs which was granted by the trial court, which found that C & K was not entitled to recover attorney fees because C & K essentially represented itself. The appellate court affirmed. Like the appellate court in Richards, the Carpenter court analogously relied on Trope v. Katz, the California Supreme Court's analysis there under the contractual/prevailing party provisions of Civil Code section 1717. The appellate court here did not buy C & K's argument that attorney Klein's representation of C & K was not the equivalent of self-representation. The trial court made a factual finding that Klein was acting as an associate, not as an independent contractor as she had declared. The firm was being sued not based on any particular member's personal matter or personal liability, which might have made a difference.

This opinion illustrates how important factual findings of the trial court are to the appellate resolution of an issue. There need only be substantial evidence to support that factual finding. Here, the trial court determined that Klein's characterization of her work on this case as an independent contractor was belied by the fact of her employment as a C & K associate attorney. As the saying goes, ones case is only as good as its facts.

Today, I will continue on the subject of attorney fees. This blog article and the next one will discuss recoverability of attorney fees: May attorneys representing themselves recover contractual attorney fees?

Licensed attorneys Linda and Thomas Richards, as owners of a lodge, were sued for the solo-car traffic death of a patron of the lodge's bar. The Richardses tendered defense of the case to Sequoia Insurance Company, which carried a general liability policy. Sequoia suggested it could not respond quickly enough to the tender, so the Richardses should go ahead and hire counsel to commence representation; Sequoia promised to reimburse such defense costs should it decide to accept the defense. Attorney Charter agreed to represent them without a retainer, with the Richardses doing the "majority" of the legal research and drafting in support of their attorney.

Subsequently, Sequoia agreed to assume the defense and pay fees owed to Charter and other attorneys, but denied the Richardses claim for $30,000 for 60 hours of legal work they said they personally provided. After Sequoia settled the underlying case, the Richardses sued Sequoia for breach of contract in Richards v. Sequoia Insurance Company (Filed April 28, 2011) 2011 DJDAR 6729. After the Sonoma County Superior Court granted summary judgment, the California Court of Appeal, First Appellate District, Division Three, affirmed.

Sequoia relied upon the California Supreme Court case of Trope v. Katz (1995) 11 Cal.4th 274 which states that attorneys acting in propria persona in suing for breach of a contract containing a prevailing attorney fees provision cannot recover for the value of their services in successfully prosecuting the action. But the Trope case is different than this case because it is based on California Civil Code section 1717's provision that permits the prevailing party the award of attorney fees reasonably incurred to enforce that contract in the present case. Here, the Richardses are seeking in the instant action their fees in the previous case that the insurance company was to defend under the contract of insurance. The appellate court determined that, while Trope is not dispositive, it aids the present analysis in deciding what constitutes reasonable attorney fees incurred. Incur means to become obligated to pay. Representing oneself does not cause the party to become obligated to pay anyone anything for that work performed.

The appellate court could have just as easily reached the same conclusion by simply saying the Richardses were represented by counsel of record whose fees they incurred were paid for by the insurance company; this payment discharged the company's obligation to pay. Perhaps respondents did not argue this point. I do tend to think that appellate courts would rather cite supreme court authority as a sounder basis to reach a conclusion, even if it is not directly on point.

Lemmer v. Charney (Filed May 5, 2011) 2011 DJDAR 6494 involved an attorney suing his former client for fraud and intentional interference with prospective advantage. The claim was based on the attorney's detrimental reliance on the client's fraudulent promise that the case would go to trial or settlement in exchange for the attorney agreeing to a contingency fee. The Los Angeles Superior Court sustained the client's demurrer to the first amended complaint. The California Court of Appeal, Second Appellate District, Division Eight, affirmed.

Attorney Lemmer had represented Charney in a lawsuit against his former employer, Teleflora, regarding Charney's employment. Initially the fee arrangement was based on an hourly rate. After Teleflora cross-complained, Charney asked to change the arrangement to a contingency fee; thinking Charney had a good case, Lemmer agreed, conditioned on Charney's promise to take the case to trial or settlement to ensure payment for legal representation.

Less than a month before trial, Charney expressed to Lemmer his fear of going to trial because he knew Telefloral was extremely litigious, vindictive and would drag this case out on appeal even if it lost at trial. Lemmer advised the case was worth several hundred thousand dollars, which boded well for Charney's recovery, in addition to attorney fees for Lemmer. Charney and his wife responded that Lemmer must do as they instruct nonetheless. Teleflora offered a "walk away" settlement which was accepted, ending the case. According to Lemmer, he was never paid a "reasonable fee for services rendered."

Continue reading "Attorney Contracted on Contingency Fee May Not Recover for Client's Refusal to Proceed to Trial" »

In the heat of battle during trial, it is far too easy for counsel to lose track of which chambers and side-bar discussions with the trial judge are being recorded by the court reporter. Remember, any argument made to the trial court that does not become a part of the record -- that recorded by the court reporter-- does not exist in the eyes of the appellate court. So today, I take a break from commenting on new cases, to shift to offering suggestions on what trial attorneys must do to preserve potential issues for appeal.

For example, many judges hold unreported jury instruction conferences, either in chambers or in the courtroom. If there are instructions that you object to or instructions offered by you that are rejected by the court, make sure that those arguments find their way into the appellate record should you need to seek appellate review of the rulings. This can be done by simply asking (and then reminding, if necessary) the trial court to summarize the unreported discussions at a convenient time in the court reporter's presence.

If you forget to do this, all may not be lost, but the alternative is riskier. The alternate way to get those arguments into the record is by way of what is called a "settled statement" on appeal--riskier because everyone may not remember the proceedings the same. (See California Rules of Court, Rule 8.37.)

Continue reading "Appellate Advice to the Trial Attorney: Make a Record" »

In Tucker v. CBS Radio Station, Inc. (Filed April 29, 2011) 2011 DJDAR 6137, plaintiff Aaron Tucker was a participant in the "Poker Run," an off-road vehicle event in the Imperial Sand Dunes Recreational Area. Defendant CBS had organized the event. A set of railroad tracks had to be crossed in order to complete the course. The object of the contest was to stop at five checkpoints and pick up playing cards; the contestant with the best poker hand would win the event.

Plaintiff had just crossed the railroad tracks when he noticed a vehicle stuck on the tracks as a train was approaching. Plaintiff dismounted his vehicle to go help the driver of the stuck vehicle, one Kendle. Before plaintiff got to the tracks, Kendle was able to extricate himself from the vehicle. The two of them then tried to dislodge the vehicle off of the tracks. They both got out of the way of the train as it struck the vehicle, but the vehicle was propelled off of the tracks, striking plaintiff and injuring him.

Among others, CBS was sued by plaintiff based upon the rescue doctrine, which permits a rescuer to recover for injuries sustained while attempting to rescue a party placed in danger by defendant' conduct. CBS convinced the Imperial County trial court to grant its demurrer. The California Court of Appeal, Fourth Appellate District, Division One, affirmed.

The appellate court noted that the ordinary rules of negligence are varied under the rescue doctrine in permitting the rescuer to sue on the basis of defendant's initial negligence toward the party rescued. (See Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361.) The court determined that while the rescue doctrine applied to this case, the accident that occurred was unforeseeable. Thus the court went through the balancing of the policy factors I have discussed in previous "duty" cases on this blog. (See blog articles posted on February 28, 2011 discussing Smith v. Freund and on May 5, 2011 discussing Garcia v. Becker Bros. Steel Co.) Similar to the decision in Garcia, the court here is most persuaded by the factor of remoteness, that there was not a close connection between CBS's conduct and plaintiff's injuries.

I think a more direct route that the court could have taken would have been to agree with the primary argument made by defendant: that the rescue doctrine does not apply in this case because there was no threat of peril to plaintiff due to trying to rescue a person (Kendle had been extricated from his danger); rather plaintiff was trying to get the vehicle off of the tracks when he was injured. But then the court would not have had all the fun of doing policy analyses. I'm sure a spoil sport.

As the saying goes, "Dog is man's best friend." We all love our pets. My wife and I are "cat people" and treat our cats as part of the family. Most communities have ordinances and regulations of various sorts concerning these furry friends. Concerned Dog Owners of California v. City of Los Angeles (Filed April 29, 2011) 2011 DJDAR 6105 raises the issue of the extent of government police power that may be constitutionally exercised in requiring resident-owners to spay or neuter their pets.

The Los Angeles ordinance requirement included certain exceptions: for breeders, and owners of work/rescue type dogs and those animals who would be medically endangered by the procedure. Plaintiffs' challenge of the ordinance failed in the trial court. The California Court of Appeal, Second Appellate District, Division One, affirmed.

Plaintiffs' constitutional argument focused on federal First Amendment freedoms of speech and association. (They also unsuccessfully argued equal protection, due process and California constitutional liberties.) They contended the ordinance amounted to a content-based restriction on protected speech by forcing those who did not want to spay or neuter their pets to purchase a breeder permit. Such categorization, they said, bore a negative stigma, with which they did not want to be associated, and forced the payment of a "compelled subsidy." The appellate court disagreed: the ordinance's only mandatory requirement is to spay or neuter ones pet, not to pay a government fee or require a certain association. There is nothing expressive about this that would even bring this exercise of authority for the public good of controlling the municipal animal population within the First Amendment.

It is not for me to speculate what might have motivated the plaintiffs in this case to challenge the ordinance. I imagine they could very sincerely believe that they were protecting the health of their pets, although the ordinance did have a medical endangerment exemption. But they do seem at odds with the animal rights movement. Long-time television personality Bob Barker, a strong supporter of and national spokesperson for animal rights used to end every show of The Price is Right with the phrase: "Help control the pet population. Have your pets spayed or neutered." (His successor on the show, Drew Carey, continues to use this signature sign-off.) I suppose the plaintiffs were not so much offended by the philosophy of controlling the pet population as they were by the fact that government was requiring them to do so.

In Cuiellette v. City of Los Angeles (Filed April 22,2011) 2011 DJDAR 5687, plaintiff was a City police officer who was injured on duty and found to be 100% disabled in his workers compensation proceedings. He returned to work with the City police department at an administrative desk job with the fugitive warrants unit. After 5 days of satisfactorily performing those duties, he was discharged for the reason the City just realized he was "100% disabled."

Plaintiff sued for disability discrimination under California Government Code section 12940, subdivision (a): a jury awarded plaintiff $1.57 million. City appealed, contending the evidence was insufficient to support the liability verdict because plaintiff was proven unable to perform "the essential duties of a police officer" with or without reasonable accommodation. The Court of Appeal, Second Appellate District, Division Five, disagreed and affirmed.

The appellate court found that because plaintiff was qualified to perform the essential duties of the desk position and was placed in that position pursuant to the police department's accommodation policy then in effect, the City could not remove him due to his 100% disability concerning his previous duties. Here, the key considerations included existing policy that caused the police department to maintain permanent light duty positions for officers disabled from performing field duties. The court distinguished the situation where a police department only had a policy of allowing injured, recovering officers to be given temporary, light-duty jobs. (See Raine v. City of Burbank (2006) 135 Cal.App.4th 1215.)

One could say the moral of this case is: no good deed goes unpunished. The result here largely resulted from the fact that City had an employee-friendly policy of accommodating disabled employees, going beyond what it was legally required to do. The opinion tells us it has since changed that policy. In my mediation practice, I have seen analogous situations; for example a disabled registered nurse no longer being able to meet the physical demands of that position seeking an accommodation as a hospital desk employee. And in these situations, whether that employee is being discriminated against if denied such a position depends in large part on the employer's existing policy and positions available.

Under well-established California law, the occasional seller of used equipment is not strictly liable for the sale of a defective product. While not claiming strict liability in tort, the plaintiff in Garcia v. Becker Bros. Steel Co. (filed April 18, 2011) 2011 DJDAR 5445, essentially asserted that a party in the chain of ownership of a defective used product owed a duty to inform a later purchaser about manufacturer safety warnings and prior accidents concerning the product.

Defendant had owned "slitter line" machinery in operating its steel business from 1973 until 1999, when it sold the machinery to another company. Upon that second company's demise, the equipment was repossessed by a bank and sold to plaintiff's employer. In 2004, plaintiff was injured, losing a finger, and sued defendant for negligence and wanton disregard of safety. The California Court of Appeal, Second Appellate District (Division 7) affirmed the Los Angeles Superior Court's granting of summary judgment in favor of defendant.

It was determined that the machinery presented a squeezing hazard for the user, lacking any guard or posted warning to keep hands free from the area of danger. Plaintiff alleged that, during the time of its ownership, defendant had received from the manufacturer various notices concerning the danger and potential corrective measures (which were not taken) and that one of defendant's employees was injured while using the machinery.

Continue reading "Although Occasional Seller May Owe Duty to Immediate Purchaser, No Duty To Warn of Risk Owed to Later Purchaser" »

In Wills v. Superior Court of Orange County (Filed April 13, 2011) 2011 DJDAR 5338, the California Court of Appeal, Fourth Appellate District, Division Three, found that plaintiff's disability discrimination claim failed because an employer may reasonably distinguish between disability-caused misconduct and the disability itself, when the misconduct includes threats or violence against co-workers.

Plaintiff was diagnosed with bipolar disorder in 1997; she began working for defendant, Orange County Superior Court, in 1999 as a court processing specialist and later became a court clerk. In 2007, plaintiff was involved in a number of incidents of threats against coworkers that included obscene communications on her part. These
outbursts on her part likely resulted from her severe manic condition. Defendant investigated the complaints of the other affected employees; plaintiff asserted harassment due to her disability. After an additional, independent investigation, defendant terminated plaintiff for her offensive and inappropriate conduct. Plaintiff sued for wrongful termination including a cause of action for disability discrimination. Defendant was granted summary judgment in the trial court, which was affirmed by the appellate court.

Plaintiff asserted in her appeal that conduct resulting from a disability is considered part of the disability, citing several 9th Circuit, U.S. Court of Appeal opinions. Unconvincing, responded the state appellate court, because these cases fail to provide any analysis to support such a conclusion. While the state court could find no California reported cases on point, it found persuasive the federal 2nd Circuit opinion of Sista v. CDC Ixis North American, Inc. 445 F.3d 172, which determined, with considerable analysis, that the American Disabilities Act (ADA) does not require employers to countenance dangerous misconduct.

Continue reading "Claim of Termination Based on Disability Discrimination Under California's FEHA Can Be Defeated by Disability-Caused Misconduct" »

In Zeinali v. Raytheon Company (United States Court of Appeals, Ninth Circuit--filed April 4, 2011) 2011 DJDAR 4839, plaintiff, an ethnic Iranian, was terminated by defendant employer from his four years of employment as an engineer. He was required by the employer to apply for and be granted security clearance by the United States Department of Defense. When that request was denied, defendant terminated plaintiff. Defendant was granted summary judgment in the trial court on plaintiff's action that included the allegation that defendant violated the California Fair Employment and Housing Act (FEHA), Government Code section 12940 et seq.,by terminating plaintiff on the basis of his national origin. The Court of Appeals reversed.

The critical question on appeal was whether plaintiff had met his burden of introducing evidence that the reason for termination stated by the employer was pretextual. (See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).) The court concluded he had satisfied his summary judgment burden by introducing evidence that defendant terminated him while retaining at least two similarly situated non-Iranian engineers who lacked security clearance.

Plaintiff did not dispute the validity of the government denying him security clearance. The court generally recognized that security clearance can be a valid requirement for employment in appropriate circumstances. However, this case presented a triable dispute concerning whether a security clearance was in fact a "bona fide occupational qualification." Here, the fact that the employer had retained multiple non-Iranian engineers after their security clearance had been revoked demonstrated a concern not unlike the observation of the United States Supreme Court in McDonnell Douglas at p. 804 : "Especially relevant to such a showing [of pretext] would be evidence that white employees involved in acts against [the employer] of comparable seriousness . . . were nevertheless retained or rehired."

I have learned from hearing employment discrimination cases as a judge, and now as a neutral at Dowling Aaron Incorporated, that employers often are surprised when they cite a facially valid reason for terminating an employee only to find that the employee is allowed to refute that claim by demonstrating an underlying discriminatory basis for the adverse employment action. Employers and their management personnel are wise to receive periodic counseling from knowledgeable California employment lawyers such as those at Dowling Aaron Incorporated before they end up facing the kind of lawsuit that is presented here.