S059064


IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA

JEFFREY LANE, DAVID VILLALPANDO,


Plaintiffs and 2nd Civil B090258

Appellants,

vs. Los Angeles County

Superior Court Nos. BC075519

HUGHES AIRCRAFT COMPANY, and BC083355 [consolidated]


Defendants and Respondents.

_____________________________



DECISION OF THE COURT OF APPEAL,

SECOND DISTRICT, DIVISION SEVEN

_____________________________________________

REQUEST BY CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION

FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND

AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS

AND APPELLANTS

____________________________________________







JOSEPH POSNER, INC. (SB 62428)

16311 Ventura Blvd., Ste. 555

Encino, California 91436-4303

(818) 990-1340

Attorneys for California Employment Lawyers Association

S059064



IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA



JEFFREY LANE, DAVID VILLALPANDO,


Plaintiffs and 2nd Civil B090258

Appellants,


vs. Los Angeles County

Superior Court Nos. BC075519

HUGHES AIRCRAFT COMPANY, and BC083355 [consolidated]


Defendants and Respondents.


______________________________



DECISION OF THE COURT OF APPEAL,

SECOND DISTRICT, DIVISION SEVEN

_____________________________________________



REQUEST BY CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION

FOR PERMISSION TO FILE AMICUS CURIAE BRIEF

IN SUPPORT OF PLAINTIFFS

AND APPELLANTS

____________________________________________




TO THE CHIEF JUSTICE OF CALIFORNIA AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT:

The California Employment Lawyers Association (CELA) requests permission to file a brief as amicus curiae in support of plaintiffs and appellants Jeffrey Lane and David Villalpando. CELA is a statewide organization of attorneys primarily representing plaintiffs in employment termination and discrimination cases. CELA has appeared as amicus curiae in numerous cases including Gantt v. Sentry Insurance, 1 Cal. 4th 1083 (1992), Fermino v. Fedco, 7 Cal. 4th 701 (1994), Scott v. Pac. Gas & Elec., 11 Cal. 4th 454 (1995) and Lazar v. Superior Court, 12 Cal. 4th 631 (1996).

CELA, through its undersigned attorney, is familiar with the questions involved in this case and the scope of their presentation and believes that there is necessity for additional argument on the following points:

- Most discrimination cases involve subtle, not blatant, evidence. Perpetrators of discrimination do not broadcast their evil intentions on the evening news;

- A small but increasing number of judges refuse to see discrimination when it exists. Those judges force plaintiffs over many unnecessary hurdles, and if that doesn't discourage plaintiffs, they take away a just verdict;

- Unless such judicial undermining of civil rights law enforcement is stopped, we will never have effective, vigorous enforcement of what the Legislature has decreed to be an important public policy.

If this request is granted, the following brief in support of plaintiffs and appellants is respectfully submitted.

Respectfully submitted,

JOSEPH POSNER, INC.



By___________________________

JOSEPH POSNER,

Attorney for California Employment

Lawyers Association, Amicus Curiae

S059064









IN THE SUPREME COURT



OF THE STATE OF CALIFORNIA











JEFFREY LANE, DAVID VILLALPANDO,



Plaintiffs and 2nd Civil B090258

Appellants,



vs. Los Angeles County

Superior Court Nos. BC075519

HUGHES AIRCRAFT COMPANY, and BC083355 [consolidated]



Defendants

and Respondents.





______________________________





DECISION OF THE COURT OF APPEAL,

SECOND DISTRICT, DIVISION SEVEN

_____________________________________________



CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION

AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS

AND APPELLANTS

____________________________________________





TO THE CHIEF JUSTICE OF CALIFORNIA AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT:



INTRODUCTION

It is absolutely amazing, although not surprising, that the trial judge either did not or could not accept the unanimous twelve-zero verdict on liability for discrimination. The Lane-Villalpando judge's denial of the jury's considered deliberations is part of a disturbing trend among some trial jurists - and some appellate justices as well - to see no evil or hear no evil when it comes to discrimination. Such a mind set undercuts enforcement of the anti-discrimination laws, and unfortunately is indicative of a trend that this court should halt.



1. MOST DISCRIMINATION CASES INVOLVE THE TYPE OF SUBTLE EVIDENCE WHICH LANE-VILLALPANDO PRESENTS. BIGOTS TODAY ARE SILENT BUT DEADLY.

In a very, very small percentage of discrimination cases, plaintiffs are lucky enough to have direct evidence of bigotry straight from the horse's, or perpetrator's, mouth. Even then, some judges either don't or won't see it. For example, consider Schnidrig v. Columbia Machine, 80 F.3d 1406 (9th Cir. 1996). Schnidrig began working for Columbia Machine in 1980 when he was 50 years old. In 1991, the company president resigned under pressure and Schnidrig, then 61, took over as acting president while the board of directors searched for a new president. Although he applied for the position of president several times, several board members told him straight out that the company was looking for a president in the 45 to 50 year old range. He also obtained the shorthand notes of the minutes of a board meeting which said the same thing. The board hired a headhunter, Goerss, to find a candidate, which Goerss did. Schnidrig asked again about the opportunity, and again a board member said that he was too old.

The trial court either refused or ignored this direct evidence and granted summary judgment but the Ninth Circuit reversed:

"Contrasting, in the instant case, Schnidrig alleges that on three separate occasions, when he asked to be considered for president, he was told the board wanted somebody younger for the job. Significantly, at least one of these instances occurred after Goerss submitted his list of candidates to the board. Furthermore, Schnidrig did more than offer mere allegations of discriminatory intent; he produced evidence in the form of shorthand notes taken at the February 25, 1992 board meeting and the affidavit of a co-worker."

80 F.3d at 1411, emphasis added.

The tortfeasors in Schnidrig were either too stupid or too confirmed in their bigotry (or both) to hide their intentions. But in the real world today, most perpetrators of discrimination do not shout it from the rooftops. After all, to express bigotry openly has become socially unacceptable if not legally dangerous. Social unacceptance, however, hasn't made the bigotry go away. Like Jaws II, the shark is still out there; he just doesn't poke his fin through the water as much.

Most sophisticated perpetrators of discrimination have learned to mask their evil intent through code words, memos, use of criteria that seem objective on their face, and other such devices. Numerous courts have recognized this reality and the difficulty which discrimination plaintiffs face as a result. For example, in Lam v. University of Hawaii, 40 F.3d 1551 (9th Cir. 1994), Lam, a woman of Vietnamese and French descent, sued the University of Hawaii and claimed that its law school discriminated against her on the basis of her race, sex and national origin both times she applied for the position of director of the law school's Pacific Asian Legal Studies Program (PALSP). The trial court had granted summary judgment on both of her discrimination claims; the Ninth Circuit reversed as to the first claim and affirmed as to the second. Emphasizing that the university did not display its intent to discriminate on the side of the Goodyear blimp, the court said:

"We require very little evidence to survive summary judgment in a discrimination case because the ultimate question is one that can only be resolved through a searching inquiry - one that is most appropriately conducted by the factfinder upon a full record. ... Besides an overall more particular arised factual inquiry, a trial provides insight into motive, a critical issue in discrimination cases. The existence of an intent to discriminate may be difficult to discern in depositions compiled for purposes of summary judgment, yet it may later be revealed in the face to face encounter of a full trial."

40 F.3d at 1564, emphasis added.

California cases say the same thing. For example, Stephens v. Coldwell Banker, 199 Cal. App. 3d 1394 (1988) recognized reality: "In most employment discrimination cases, direct evidence of the employer's discriminatory intent is unavailable or difficult to acquire." 199 Cal. App. 3d at 1399.

Lane-Villalpando obviously falls into this latter category. The briefs indicate a hard fight on both sides, with the plaintiffs proclaiming evil and the defendants professing innocence and the best of intentions. The jurors, the majority of whom were working people, were in the best position to decide who was telling the truth. Their unanimous verdict tells us that they did just that. How, then, can the trial judge criticize the unanimous liability decision? When a judge describes the panel as "this minority jury" (Appellants' Opening Brief in the Court of Appeal, p. 1), we have to question whether that judge could or would see discrimination even if the perpetrators had called Lane the n-word.



2. THE LANE-VILLALPANDO JUDGE'S VIEW OF THE CASE IS NOT ATYPICAL. SUCH BENCH VIEWPOINTS ARE ON THE UPSWING, AND TRIAL JUDGES HAVE BEGUN TO FORCE PLAINTIFFS OVER HIGHER AND HIGHER HURDLES.

If the judicial myopia exhibited in the instant case happened only once in awhile, there would be no cause for alarm. But it is not. Over the last five or six years, CELA has noticed an increasing hostility of a small but significant number of trial judges to the whole concept of discrimination cases. Neither the Schnidrig judge nor the Lane-Villalpando judge is alone. This hostility manifests itself in a number of ways. For example, concepts developed by the higher courts to allow the full display of and redress for discriminatory activities, such as the continuing violation doctrine articulated in Accardi v. Superior Court, 17 Cal. App. 4th 341 (1993), are routinely ignored by some on the trial bench. Or consider the problem of administrative claims filing, a prerequisite to suit under the FEHA. Some judges expect plaintiffs - who for the most part are lay people - to deal with the arcane FEHA claim filing requirements and the nuances, whims and sometimes outright incompetence of the Equal Employment Opportunity Commission (EEOC) and the Department of Fair Employment & Housing (DFEH) as if those plaintiffs were experienced, savvy and sophisticated employment lawyers. Cf. Denney v. Universal Studios, 10 Cal. App. 4th 1226 (1992).

Summary judgment is another troubling area. Whereas Lam and some of the other, more realistic cases understand that plaintiffs are not going to find discriminatory evidence just sitting there for the taking, some judges have lost all sight of what a summary judgment motion is all about - the existence of triable issues of fact. Instead these jurists require plaintiffs to prove their case in what for all practical purposes becomes a full blown court trial. And if a plaintiff survives all of those hurdles and finally gets to a jury, puts on the proof, fights off the defense attacks and succeeds in convincing the jury, then in order to "justify" a new trial or JNOV order, some judges simply adopt the losing defendant's version of the facts - the version which the jury rejected. That is exactly what happened in the instant case.



3. THE PROLIFERATION OF SUCH JUDICIAL ATTITUDES WILL UNDERCUT ENFORCEMENT OF THE CIVIL RIGHTS LAWS.

Why does this judicial attitude exist? After all, the Legislature has told us in no uncertain terms that the public policy of the State of California is to protect and to safeguard the civil rights of all individuals to hold employment without discrimination. Employment practices should treat all individuals equally, evaluating and treating each on the basis of his or her individual skills, knowledge and abilities. The opportunity to hold employment without discrimination is a civil right - supposedly - of every citizen of the State of California. Government Code Sections 12920 and 12921; cf. also Govt. C. 12993. Time and again, this Court has reminded us of these basic truths. Cf. Rojo v. Kliger, 52 Cal. 3d 65 (1990) and Stevenson v. Superior Court, 16 Cal. 4th 880 (1997). With such forceful authority, why is it that some trial judges literally do not even see the leaves, let alone the trees from the forest?

CELA suspects that one reason for such judicial blindness is that it is easier to say that there is no discrimination problem and thus nothing need be done about it, than to confront the ugly truth that bigotry in the workplace is alive and all too well. Evil ignored becomes evil eradicated. However, to admit discrimination and to do nothing about it is to admit complicity with the perpetrators, and that admission makes people very uncomfortable. Deep down, most of us know that evil flourishes when the good folk do nothing.

Well, we have news for those who would play ostrich. Despite the remarkable gains - and there have been many - since the passage of the predecessor to the FEHA in 1959 and the later passage of the federal Civil Rights Act in 1964, discrimination remains in many segments of our society. Listen, for example, to the words of Deval Patrick, former assistant attorney general of the United States, head of the civil rights division of the U.S. Department of Justice, in the September 2, 1996 Los Angeles Times at page B11:

"I still get followed in department stores. I still get stopped if I'm driving a nice car in the wrong neighborhood. I still have trouble hailing a cab in most major cities. Now, perhaps these are nothing more than what I sometimes refer to as the indignities de jour. But they nag at my personhood every day even in my rarified life."

Mr. Patrick, of course, is an accomplished, educated and eloquent attorney. But he has not forgotten his roots:

"Imagine what kind of effect these things have on the life and mind of a young African-American or Latino man or woman who knows less about hope and faith than I do. They know like any of us that not everything wrong in their lives or in their communities is explained by race. But they also know that intolerance is with us, and in the midst of this come efforts to dismantle what national consensus we have on civil rights today and to divide us along racial or ethnic lines for political advantage or worse."

We can find racism right here at home. Heed the words of El Segundo resident Amy Shields Baker in the Los Angeles Times, October 9, 1996, p. B12, commenting on the need for civil rights laws:

"Recently, my husband, who is black, went to get his car's oil changed at a service station in Manhattan Beach. He dropped the car off and returned 45 minutes later to find that nothing had been done, because the manager thought my husband didn't have the money. He admitted that the store's normal policy is to change the oil first, and charge the customer when the car is ready. When I later asked the manager to explain his action, in view of this policy, he was silent.

"My husband is a deputy sheriff for Los Angeles County. He is clean-cut and was dressed in jeans and a collared shirt. He was obviously a victim of racism. These people are everywhere, from the person who changes your oil to the person in charge of hiring and firing people at a big firm."

Notice that the garage owner made no racial remarks or slurs. But he didn't have to do so. Ms. Baker knows racism when she encounters it. Have some of our judges gotten too removed from what really happens on the street?

We are supposed to be a nation of laws. Our country is based upon the concept that enforcement of the laws fairly, equally and with justice and compassion is essential to the maintenance of an ordered democracy. But a law that isn't enforced is a law that might as well be repealed. A law that is ignored is a law that might as well have never been written. And the effect of chipping away at a law, inch by inch, piece by piece, bit by bit by making enforcement harder and harder is just as deadly - and perhaps more so - than a frontal attack.

Let's get the issue on the table once and for all. Are we going to enforce the FEHA, or aren't we? Are we going to open the blinders, pull aside the curtains and fling wide the shutters, even if to do so tells us some very unpleasant, unwanted truths about how some of our so-called "better" citizens behave? Are we going to accept the unanimous finding of twelve citizens who gave up time and money to do so? Are we going to enforce the FEHA - or should we just throw it in the trash can?

Thirty-five years ago a mighty voice thundered across the Reflecting Pool at the Lincoln Memorial: "Let my children be judged not by the color of their skin but by the content of their character!" Those words will never be a reality unless we prosecute the FEHA and all similar laws with vigor and determination. When Mr. Lane and Mr. Villalpando stood up against racism, they stood up for all of us. As Mr. Patrick puts it:

"And what must we teach this next generation if not also our own? What is the perspective without which their progress is impossible? I say it is this: That civil rights today is, as it has always been in human history, a struggle for the human conscience, and that we all have a stake in that struggle. So when an African-American stands up for a quality integrated education, he stands up for all of us. When a Latina stands for the chance to elect a candidate of her choice, she stands for all of us. When a person who uses a wheelchair stands for access to a public building, she stands for all of us. When a Jew stands against those who would violate and desecrate his place of worship, he stands for all of us."



Mr. Lane and Mr. Villalpando stood tall, and they paid a heavy price. Now those responsible have to pay them back. And that is as it should be. Otherwise people will continue to be judged by the color of their skin, or their place of birth, or their age, or whether they carry XX or XY chromosomes, instead of by the content of their character. For these reasons, we respectfully submit that the jury's unanimous decision be upheld.

Respectfully submitted,



JOSEPH POSNER, INC.





By___________________________

JOSEPH POSNER,

Attorney for California Employment

Lawyers Association, Amicus Curiae





TABLE OF CONTENTS



Page



Table of Authorities ii



Request for Permission to File Amicus

Curiae Brief 1



Amicus Curiae Brief 3



Introduction 3



1. MOST DISCRIMINATION CASES INVOLVE THE

TYPE OF SUBTLE EVIDENCE WHICH

LANE-VILLALPANDO PRESENTS. BIGOTS TODAY

ARE SILENT BUT DEADLY. 4



2. THE LANE-VILLALPANDO JUDGE'S VIEW OF

THE CASE IS NOT ATYPICAL. SUCH BENCH

VIEWPOINTS ARE ON THE UPSWING, AND TRIAL

JUDGES HAVE BEGUN TO FORCE PLAINTIFFS

OVER HIGHER AND HIGHER HURDLES. 7



3. THE PROLIFERATION OF SUCH JUDICIAL

ATTITUDES WILL UNDERCUT ENFORCEMENT OF

THE CIVIL RIGHTS LAWS. 8





TABLE OF AUTHORITIES



Case Page



Accardi v. Superior Court,
17 Cal. App. 4th 341 (1993) 7

Denney v. Universal Studios,
10 Cal. App. 4th 1226 (1992) 8

Lam v. University of Hawaii,
40 F.3d 1551 (9th Cir. 1994) 5

Rojo v. Kliger,
52 Cal. 3d 65 (1990) 9

Schnidrig v. Columbia Machine,
80 F.3d 1406 (9th Cir. 1996) 4

Stephens v. Coldwell Banker,
199 Cal. App. 3d 1394 (1988) 6

Stevenson v. Superior Court,
16 Cal. 4th 880 (1997) 9





Other Authorities



Government Code Section 12920 9

Government Code Section 12921 9

Government Code Section 12993 9









Service List: See attached.





Courtesy copies to:





Fred Ashley, Esq.

2201 Dupont Drive

Suite 710

Irvine, CA 92715





Nancy Bornn, Esq.

233 Wilshire Blvd., Ste. 500

Santa Monica, CA 90401





Mary Dryovage, Esq.

340 Pine Street

Suite 501

San Francisco, CA 94104





Virginia Keeny, Esq.

128 North Fair Oak Ave.

Suite 204

Pasadena, CA 91103





Gary Laturno, Esq.

9255 Towne Center Drive

Suite 520

San Diego, California 92121





Barbara Lawless, Esq.

600 Montgomery Street

33rd Floor

San Francisco, CA 94111





Dolores Leal, Esq.

6300 Wilshire Blvd.

Suite 1500

Los Angeles, CA 90048





Cliff Palefsky, Esq.

535 Pacific Avenue

San Francisco, CA 94133



Steven Pingel, Esq.

3020 Old Ranch Pkwy, Ste. 320

Seal Beach, CA 90740





William Quackenbush, Esq.

1700 So. El Camino, Suite 408

San Mateo, CA 94402



Willie Smith, Esq.

2350 West Shaw Avenue, Ste. 154

Fresno, CA 93711



James P. Stoneman, Esq.

100 W. Foothill Blvd.

Claremont, CA 91711



Christopher Whelan, Esq.

11246 Gold Express Dr., Ste. 100

Gold River, CA 95670



Chris Bello, Esq.

2320 Seventh St.

Berkeley, CA 94710



Teri Chaw

National Employment Lawyers Association

600 Harrison St., #535

San Francisco, CA 94107