In Duncan v. The McCaffrey Group, Inc. (filed October 28, 2011) 2011 DJDAR 15875, plaintiffs bought from defendants residential lots in a tract marketed as Treviso Custom Home Development. Plaintiffs claim they bought in the development, paying premium prices, because of its marketing as an exclusively custom home development; instead, defendants, unbeknownst to plaintiffs, intended to build smaller tract homes on some of the lots .The matter came before the Fresno County Superior Court on defendants' demurrers and motion for summary adjudication. On the issues that are the subject of this appeal, the trial court sustained the demurrers and granted summary adjudication on the basis that the parol evidence rule precluded plaintiffs from establishing facts supportive of their claims. The Court of Appeal, Fifth Appellate District, reversed.

Defendants took the position that plaintiffs' allegations in question could not be considered because they contradicted the terms of the lot sales agreements and the CC&R's that included giving the developer the right to build different types of residences. Under the parole evidence rule, argued defendants, the integrated agreement on each lot was the final expression of the terms of the agreement.

On their causes of actions for unfair competition and false advertising, the plaintiffs successfully argued to the appellate court that these claims did not contain allegations that required proof that would vary, alter or add to the terms of a written agreement. Rather than argue the terms of the agreement, each plaintiff alleged he or she was mislead by and reasonably relied upon false advertising.

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Most lawyers remember from their law school course in evidence the cardinal notion that a plaintiff or prosecutor should not be allowed to present evidence to show defendant is a bad person. But if this propensity evidence is offered for some other relevant purpose, it may be admissible. A recent opinion from California's Court of Appeal, Fifth Appellate District, gives employment law plaintiffs a weapon in asserting admissibility of evidence of workplace harassment or hostile environment, even if the bad act occurred outside the plaintiff's presence or knowledge; and even if it occurred at a time when plaintiff was not even employed by this employer.

In Pantoja v. Anton (filed August 9, 2011) 2011 DJDAR 11962, plaintiff alleged former employer Anton, a lawyer, committed various harassing acts against her including slapping her on the buttocks, offering her money for a massage right after he touched her leg, calling her a "stupid bitch," and referring to various employees as "my Mexicans." At trial, defendant was granted motions in limine including one excluding all evidence of acts of discrimination or harassment unless plaintiff personally observed the acts. The trial court granted the motions. The trial proceeded and, at its conclusion, the jury found for the defense; in its special verdict, the jury found plaintiff was not subjected to unwanted harassing conduct because she was a woman and that her gender was not a motivating reason for her discharge.

The Court of Appeal reversed the judgment. It found that the trial court abused its discretion in excluding what it called "me-too" evidence. The context here includes that defendant admitted he was not shy about using profanity and vulgarity, but that none of that was done in a discriminatory way. The appellate court notes anti-discrimination legislation is not a "civility code and is 'not designed to rid the workplace of vulgarity.'" (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295.) And the court recognizes it would be improper to show defendant had a propensity of harassing women. But in this case, the me-too evidence would show instead that he harbored a discriminatory intent or bias against women or an ethnic group, a matter of proof made relevant by defendant's defense of the case. It also went to the credibility of defendant's testimony that he did not discriminate.

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