January 2018 - Issue 71

City of Paramount Addresses Sidewalk Maintenance with Assistance from the Authority

Cal/OSHA Reporting Requirements

New Training Courses for 2018

Significant Incident Report

Revised and New Agreement Template Resources Available

Americans with Disabilities Act DACTrak Training

Court of Appeal: Misbehaving Police Officer to Get His Job Back

In Mistaken Identity Case…Ninth Circuit Reinstates Suit Over Wrongful Arrest

Court of Appeal Gives Guidance on Employee Handbook Provisos

News: Worthy

City of Paramount Addresses Sidewalk Maintenance with Assistance from the Authority

By Abraham Han, Administrative Analyst

In 2015, the California JPIA launched a sidewalk inspection and maintenance pilot program to help members develop progressive, sustainable programs to improve sidewalk safety and reduce costly liability claims.  That program was introduced to a select number of member agencies based on their frequency and severity of losses related to slip and trip claims, including the City of Paramount.

Paramount began its sidewalk maintenance efforts upon receiving a small amount ofParamount city logo funding to help determine whether services provided by Precision Concrete Cutting would be appropriate for a larger-scale self-funded effort.

Upon Paramount’s conclusion of the pilot, the city decided to continue contracting with Precision Concrete Cutting for sidewalk inspection and assessment services in order to take advantage of preferred pricing through the Authority’s master services agreement with Precision Concrete Cutting.

Within a ten-week period, Precision completed over 140 miles of sidewalk assessments. Sidewalk problems were identified with GPS locations and photographs, and an estimated repair cost was produced.  Once this was completed, Paramount moved forward with the project by contracting with Precision for sidewalk maintenance work based on the assessments that were conducted.

Within a four-month period, Precision removed over 9,000 sidewalk trip hazards spanning roughly 228,000 square feet within the city.

Paramount’s proactive approach in addressing sidewalk issues resulted in multiple benefits. First, professional sidewalk assessments allowed the city to be fully aware of the condition of its sidewalks because trip hazards were surveyed and mapped to GIS.

Second, the sidewalk assessments allowed Paramount to realize cost savings through the identification of sidewalk panels that could be repaired versus panels that must be replaced. Sidewalk panel repair costs significantly less than sidewalk panel replacement, so the city was able to maximize its sidewalk infrastructure budget while still identifying sidewalk panels that were beyond the point of repair and absolutely required replacement.

In addition to Paramount, over 20 of the Authority’s members have utilized the Authority’s master services agreement with Precision for a combined removal of over 40,000 sidewalk trip hazards over the last three years.

For any questions related to the master services agreement, please contact your assigned regional Risk Manager.


 

News: Worthy

Cal/OSHA Reporting Requirements

The Authority is reminding its members that the Occupational Safety and Health Administration (OSHA) requires employers to post OSHA Form 300A between February 1 and April 30, 2018.  Form 300A provides a summary of the total number of job-related injuries and illnesses that occurred in 2017 and were logged on OSHA Form 300.  The form must be posted in a location where employee notices are usually posted, and must not be altered, defaced or obscured during the posting period.

A work-related injury or illness must be recorded if it results in days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, significant injury or illness as diagnosed by a physician or other licensed healthcare professional, or death. Employers must record any new incidents as well as incidents that aggravate a prior injury.

A copy of Form 300A must also be made available to employees who do not report to any fixed establishment on a regular basis.  At the end of the three-month posting period, the Form 300A should be kept on file for five years.  If any newly discovered, recordable incidents or changes in classification are noted, the log should be updated.

When privacy is a concern, employee names should not be entered on the Form 300. Instead, “Privacy Case” should be entered in the space reserved for the employee’s name.  Privacy concern cases are defined as an injury or illness to an intimate body part or the reproductive system; an injury or illness resulting from a sexual assault; mental illnesses; HIV infection, hepatitis or tuberculosis; needle stick injuries and cuts from sharp objects that are contaminated with another person’s blood or other potentially infectious material; and other illnesses.

Members who participate in the Authority’s Workers’ Compensation Program recently received an email from York Risk Services Group with a partially completed Form 300A and instructions for completing and posting the form.  Please follow the instructions in the email and post a copy of the completed form by February 1, 2018.

Forms 300 and 300A can also be obtained from the Cal/OSHA website here: http://www.dir.ca.gov/dosh/etools/recordkeeping/CAStandard/CalStandard.htm.

For more information, please contact Workers’ Compensation Program Manager, Jeff Rush, or your assigned Risk Manager.


 

News: Worthy

New Training Courses for 2018

The Authority is pleased to announce the development of new instructor-led training courses for 2018.  Members may register for these and other trainings on myJPIA via the training calendar.  Please visit the training course catalog on myJPIA for further information, however, summary information for each course is included below.

Accident Investigation

This course is intended for risk management and human resources professionals, and supervisors.  It provides participants with information and training related to accident investigation, including topics such as the Injury Illness Prevention Program (IIPP) requirements, roles and processes involved in immediate response, and how to assess an accident scene. This course also provides practical applications in which participants will learn investigation tools and techniques including the California JPIA Injury and Illness Report tool, the Five Why Stairway, the Fishbone Diagram, and Events and Causal Factor Charting.  In addition, the course will also provide instruction on how to develop a Corrective Action Plan and communication plan and how to identify and access available injury prevention tools and resources.  It is intended to improve employee awareness and application of proper accident investigation procedures.

HAZWOPER First Responder – Awareness Level and
HAZWOPER First Responder – Operations Level

The target audience for these courses includes maintenance and operations staff, emergency responders, police officers, public works officers, parks and recreation staff members, and other individuals who are likely to witness or discover a hazardous substance release and who have been trained to initiate an emergency response sequence by notifying the proper authorities of the release.  At the Awareness level, first responders take no further action beyond making the proper notifications.  At the Operations level, some containment measures might take place in addition to making proper notifications.  These are “initial” level courses, meaning that they are intended for staff that has not previously received HAZWOPER training.  The Authority also offers “refresher” level training for staff, which is required annually for staff facing this exposure as outlined above.

These courses are intended to provide sufficient training for objectively demonstrating competency in the following areas:

  • Understanding of what hazardous substances are and the risks associated with them at an incident
  • Understanding of the potential outcomes associated with an emergency created when hazardous substances are present
  • Ability to recognize the presence of hazardous substances in an emergency
  • Ability to identify the hazardous substances, if possible
  • Understanding of the role of the first responder awareness individual in the employer’s emergency response plan (including site security and control), and the U. S. Department of Transportation’s Emergency Response Guidebook
  • Ability to realize the need for additional resources, and to make appropriate notifications.

Participants may be eligible for Continuing Education Units upon course completion.

Introduction to Cal/OSHA and Conducting Safety Inspections

This course is intended for all employees and provides participants with information and training related to the California Division of Occupational Safety and Health (Cal/OSHA), including topics such as the functions of Cal/OSHA, requirements for a safe workplace, the roles of employers and employees, and Cal/OSHA inspections and citations. This course also provides information and hands-on training for conducting an effective safety inspection. This course is intended to improve employee awareness of Cal/OSHA’s purpose and role. Participants will also learn how to identify hazards in the workplace.

Driver Safety

Created for anyone who drives a vehicle  on behalf of your agency, this course provides participants with information and training related to driver safety and awareness, including topics such as: defensive driving, distracted driving, driver attitude, driver fatigue, DUI/DWI, vehicle condition/technology, adverse weather conditions, driving techniques, and accidents. It is intended to improve driver habits, attention, attitude, and judgment, and discusses their impacts both on and off the job.

This course is not intended to fulfill the training requirements for operators of specialized equipment or vehicles.

For further information regarding these or other trainings offered by the California JPIA, please contact Ryan Thomas, Training and Loss Control Specialist.


 

News: Worthy

Significant Incident Report

It is the responsibility of all member agencies to immediately notify the Authority upon becoming aware of or witnessing an occurrence from which a potential claim of significance could result. This information will give the California JPIA the opportunity to perform a pre-claim investigation of the significant incident in question. 

The information which can be gathered while the scene is still fresh can be invaluable in preparing the defense of possible claims.  It is much easier to locate witnesses immediately after the incident rather than up to six months later when a claim may be filed. The purpose of the Significant Incident Report is to document the exact details of the occurrence while they are fresh in the minds of those who witnessed the event. This information may be useful in the future when dealing with liability issues stemming from the incident. 

Because those involved in accidents usually have a right of privacy and may be entitled to confidentiality protection, it is imperative that you do not discuss the accident, your opinions, conclusions, or speculation about the event with anyone, including those involved in the occurrence, their family members, friends, or others at the scene. 

The agency risk manager should provide the Significant Incident Report Form to the assigned California JPIA regional Risk Manager upon becoming aware of or witnessing an occurrence from which a potential claim of significance could result.  Prompt reporting is more important than having completed all of the information on the form.  Reporting should not be delayed while awaiting additional information.

This Significant Incident Report Form provides a streamlined way of ensuring that both the agency risk manager and the assigned California JPIA Regional Risk Manager are aware of a significant incident and can respond appropriately.  In addition to providing a form that collects important information regarding a significant incident, the form provides step-by-step instructions on what to do in the event a significant incident occurs. The revised form is a fillable PDF, so members will be able to electronically fill out the form prior to printing and saving the document.

The Significant Incident Report Form document can be downloaded here

If you have questions about the Significant Incident Report Form or the process by which to submit the form, please contact your assigned Risk Manager.

 


 

Risk Solutions

Revised and New Agreement Template Resources Available

By Abraham Han, Administrative Analyst 

The Authority has recently revised two agreement template resources and introduced a new agreement template resource to assist members in drafting agreements with service providers.

The available agreement templates are as follows:

  • Construction Services Agreement (revised)
  • Non-Construction Professional Services Agreement (revised)
  • Design Professional Service Agreement (new)

Regarding the Construction Services Agreement template, new language was added to comply with Section 9204 of the Public Contract Code, AB 626 (Chiu).  This bill establishes, for contracts entered into on or after January 1, 2017, a claim resolution process that must be applied to any and all claims by contractors in connection with a public works project.  The bill also creates a process whereby a subcontractor, who may lack legal standing to assert a claim against a public entity, may make a claim through the contractor.

One additional change involves relocating the requirement for “Products/Completed Operations Coverage” to a more appropriate section of the document.

For the Non-Construction Professional Services Agreement template, revisions were made to the indemnification section to be more in line with current laws and laws that went into effect January 1, 2018.

The Design Professional Service Agreement template is a new resource.  This resource specifically addresses those services provided by registered professional engineers, licensed architects, licensed landscape architects and licensed professional land surveyors.  The template includes insurance specifications and indemnity language intended to comply with California Civil Code section 2782.8.

Members are encouraged to share the templates with the legal counsel and staff that have a role in contract development or execution.

These agreement templates are available electronically to members via the Authority’s website. The documents are located in the “Risk Transfer” drop-down section within the “Resources and Documents” section of the Authority’s website.

For questions about these resources, members can contact their regional Risk Manager.


 

Risk Solutions

Americans with Disabilities Act DACTrak Training

By Abraham Han, Administrative Analyst

Failure to comply with the Americans with Disabilities Act (ADA) is a significant exposure for members, and the Authority continues to see claims arising from accessibility issues.  Working with Disability Access Consultants (DAC), a firm that specializes in ADA inspection and compliance, the Authority implemented the ADA Assistance Program in 2015 to help members in their efforts to satisfy the requirements of the ADA.

The Authority offers various trainings related to the ADA.  Members that are actively participating in the Authority’s ADA Assistance Program are welcome to request two specific ADA trainings that utilize DACTrak, a software program designed to collect and deliver information pertaining to accessibility at facilities and public rights of way.

The two specific trainings that incorporate DACTrak are titled “Planning for ADA Compliance: Public Facilities” and “Planning for ADA Compliance: Public Rights of Way.”

In addition to the DACTrak software component (which is built into the ADA Assistance Program), these two trainings cover technical aspects of ADA, California Building Code, and other regulations and standards that become more readily tangible as members participate in the ADA Assistance Program.

The Authority recommends that members discuss ADA training needs with their regional Risk Manager. An open dialogue will help the Authority’s Risk Managers to provide guidance to members on whether certain training courses are appropriate for the agency at any given time.

Members are encouraged to contact their regional Risk Manager to discuss either their ADA training needs or participation in the ADA Assistance Program.


 

The Court Report

Court of Appeal: Misbehaving Police Officer to Get His Job Back

(Reprinted from the Metropolitan News Enterprise, December 21, 2017)

Ashmann-Gerst Faults Pomona City Council for Disobeying Dictate of C.A.’s Earlier Opinion; Hoffstadt Dissents, Saying City Set Things Straight With Further Action

A man fired as a police officer in 2010 based on administrative findings that he committed criminal offenses, and who in 2013 won appellate relief based on procedural error at the city level, must be rehired because the Pomona City Council did not strictly adhere to dictates of the 2013 remand order, under a decision of the Court of Appeal for this district.

The council’s deviation from the appeals court’s direction—to receive independent legal advice before deciding anew whether the firing was justified—coupled with the action of reaffirming the 2010 decision without giving notice to the discharged officer, evidences bias on the part of the city lawmakers, the majority declared. That, it said, requires adoption of an arbitrator’s recommendation in an advisory arbitration that there be a suspension for some period of time, without pay or benefits, and not a termination of employment.

Tuesday’s unpublished opinion—by Acting Presiding Justice Judith Ashmann-Gerst of Div. Two, concurred by Justice Victoria Chavez—means that Glenn Sabey, who has been working as a security guard, will get his old job back with the Pomona Police Department. Justice Brian Hoffstadt dissented.

The action comes despite undisturbed findings that Sabey committed misdemeanor trespass, unauthorized use of the federal crime database, and various breaches of rules and policies. He was also found by the department to have committed a lewd act in public, but that finding was rejected in the advisory arbitration and was not relied upon by the City Council.

Third Hearing Irrelevant

Once the City Council acted in contravention of the remand order by failing to seek independent legal advice before deciding not to return to Sabey his badge and gun, Ashmann-Gerst said, reinstatement became mandatory, and a third firing that followed the receipt of the prescribed legal advice was of no significance.

“Because City Council held a second hearing without independent legal advice, it effectively declined to reconsider Sabey’s termination pursuant to our instructions,” the jurist wrote. “City Council could not undo that decision by holding a third hearing.”

That means that the arbitrator’s “Advisory Opinion and Award must become final,” she reasoned, adding:

“This decision is alternatively supported by our conclusion that Sabey was not afforded due process by the procedure employed by City Council.”

The opinion reverses a judgment by Los Angeles Superior Court Judge Mary H. Strobel except as to her determination that Sabey is not entitled to a civil penalty under the Public Safety Officers Procedural Bill of Rights Act because that act applies to “public safety departments,” which the Pomona City Council is not. Hoffstadt argued that Strobel’s decision should be affirmed in all respects.

Affront Perceived

The majority’s decision in Sabey II is tied to the perception that the Pomona City Council acted in 2013 in derogation of that year’s published opinion by Ashmann-Gerst in Sabey I.

There, it was recited that the city was represented at the advisory arbitration by Debra L. Bray, then of the law firm of Liebert Cassidy Whitmore (now on inactive bar status); subsequently, the city asked Peter Brown, of the same firm, to be its legal advisor in the matter; an “ethical wall” (previously known as a “Chinese wall”) was erected between Bray and Brown.

Despite that “wall,” Ashmann-Gerst said:

“We hold that when a partner in a law firm represents a department within a city at an advisory arbitration regarding a personnel matter, and when the city’s decision-making body later reviews that arbitrator’s award for confirmation or rejection, the principles of due process prohibit the decision maker from being advised on the matter by a different partner from the same law firm.”

The disposition was a reversal, and a remand to the Los Angeles Superior Court “with directions to the trial court to refer the matter back to the City Council for further consideration in light of independent legal advice.”

(Joining in that decision were then-Presiding Justice Roger Boren, since retired, and Los Angeles Superior Court Judge Edward Ferns, sitting on assignment.)

No Reinstatement

The city council proceeded to reaffirm the dismissal. It did so in closed session at a meeting on Sept. 16, 2013.

On Oct. 3 of that year, Sabey’s lawyer, Michael Morguess, emailed employment attorney Kristine Exton, who was representing the city, confirming a telephone conversation they had. Morguess recited that the city council was sticking by its earlier decision because Sabey’s “stalking behavior… is a ‘real concern’ to it,” as well as “his interaction with the local police agency, and prior discipline at another department.”

The stalking was related to the trespassing. He allegedly kept showing up in a Jacuzzi at a gated condominium projects where his former girlfriend lived, apparently having climbed over a fence, and doing so notwithstanding her express admonishment that he was trespassing. On April 1, 2008, she saw Sabey by the pool, telephoned the Corona Police Department, and when officers arrived her lied to them as to the purpose and permissibility of his presence.

A resident of the complex subsequently reported to the Corona police having seen Sabey committing a lewd act while in the Jacuzzi.

Disobedience Assumed

Ashmann-Gerst said in a footnote, at the outset of her opinion, that “[w]hether City Council obtained independent legal advice for the second hearing is not definitively established by the record,” but remarked that “circumstances strongly indicate that it did not,” and announced that for reasons to follow, “we deem it established that independent legal advice was not obtained.”

She went on to explain:

“City did not meet its burden of proof because it never identified an attorney who provided independent legal advice at the second hearing. This means courts must deem that it held the second hearing without independent legal advice….”

Given the presumed failure on the part of the city council to consult with a lawyer before reaffirming its earlier action, Ashmann-Gerst said, “City Council deprived Sabey of the benefit of the disposition in our prior opinion.”

Compounding Unfairness

She continued:

“Compounding the unfairness of this procedure, City Council did not inform Sabey of its decision. Sabey only learned of City Council’s action through Morguess’s conversation with Exton. And it was only after Morguess objected to the lack of notice that City Council sent a notice stating that City Council’s decision was null and void.”

It was then that the City Council held a third hearing, which was noticed, and, buttressed with advice of independent legal counsel, decided, again, not to reinstate Sabey’s employment.

“Based on these facts, it defies reason to presume City Council could be neutral and unbiased when deciding Sabey’s matter a third time,” Ashmann-Gerst opined.

“Experience teaches that it is highly improbable that the members of City Council kept open minds. Accordingly, the principles of due process require that we set aside the decision.”

She proclaimed:

“The remedy is to allow the recommendation of the inferior decision maker to stand.”

Hoffstadt’s Dissent

Hoffstadt remarked:

“To be sure, the second vote was procedurally irregular, especially when one considers that the second vote was void on its face because it was held before our mandate even issued.”

The City Council on Sept. 16, 2013 reaffirmed its decision to fire Sabey, but it was not until Nov. 7 that Los Angeles Superior Court Judge James Chalfant issued a judgment upon remittitur granting Sabey a writ of mandate.

Hoffstadt continued:

“Are these procedural irregularities proof of negligence or incompetence? In my view, yes.

“Are these procedural irregularities proof of an unacceptably high probability of actual bias? In my view, no.

“Each circumstance Sabey cites is individually insufficient to establish an intolerably high probability of bias.”

Third Vote

The jurist said he would uphold the council’s third vote, explaining:

“[T]here is no evidence to support a finding that the City Council’s failure to consult was, as the court finds, ‘intentional’ and hence a conscious decision to forego the opportunity to review the arbitration record. Indeed, the City Council’s subsequent acts tend to dispel the notion that it was consciously foregoing the chance to reexamine Sabey’s discipline given that it subsequently vacated the second vote and proceeded to render a decision following a full hearing and with the assistance of independent counsel. Treating the City Council’s blunder as sufficient to preclude it from ever reconsidering Sabey’s discipline effectively erects an absolute ‘one-strike, you’re out’ rule that is stricter than due process in that it precludes further reconsideration after one mistake and does so without the need to prove actual bias.”

He said that while there are cases saying “that a trial court’s acts on remand that are materially at variance with an appellate court’s mandate are void,” they “do not speak to what happens after the order is voided, and do not purport to erect a rule that forever disables the court (or, by extension in this case, an administrative agency on remand from the court) from trying to get it right a second or third time.”

The case is Sabey v. City of Pomona, B271417.

Attorneys on appeal were Brandi L. Harper and Michael A. Morguess of Castillo Harper for Sabey and Steven H. Taylor of McCune & Harber for the city.


 

The Court Report

In Mistaken Identity Case…Ninth Circuit Reinstates Suit Over Wrongful Arrest

(Reprinted from the Metropolitan News Enterprise, January 3, 2018)

Panel Rejects Judge Klausner’s View That Sixth-Inch Difference in Height of Robber And That of a Woman With a Different Name and Body Weight Were Inconsequential

The Ninth U.S. Circuit Court of Appeals has reversed a summary judgment in favor of the County of Los Angeles and a Sheriff’s Office detective in a civil rights action based on the wrongful arrest of a 5-foot seven-inch woman, weighing 110 lbs., named “Tammy Cameron,” while the person being sought was “Tammy Garrison” who weighed 135 lbs. and was five-feet one inch in height.

“Under the ‘totality of the circumstances’ in this case,” a memorandum opinion filed Friday said, “a reasonable jury could find that there was no probable cause to obtain an arrest warrant for Tammy Cameron.”

Investigating a 2007 robbery in which Tammy Garrison was one of three suspects, Detective Lauren Brown ran the name “Tammy Cameron” through the Los Angeles County Regional Identification System. Cameron’s photo came up, along with her description.

That photo was identified by the victim of the robbery, leading to the arrest warrant in 2008, and an arrest of Cameron in 2013. At a preliminary hearing that year, the victim could not identify Cameron, and the court dismissed the case based on insufficient evidence.

Cameron brought suit against the county and Brown on Feb. 3, 2015, for false arrest, in violation of the Fourth Amendment right against unreasonable seizure of persons, and other bases.

However, in opposing summary judgment, the plaintiff declared she was abandoning all causes of action except false arrest, based on lack of probable cause.

Brown’s Reason Uncertain

Why Brown ran “Tammy Cameron” through the computer system is unclear. The plaintiff’s theory was that Brown misread the surname of the female suspect on a blurry report by the officer who initially investigated; the defense claimed that Brown had heard the “Cameron” mentioned as an alias, though he could not remember from whom.

It was undisputed that neither the initial report nor Brown’s supplemental report said anything about an alias, and that if an alias had, in fact, been ascertained in the course of an investigation, failing to mention that in a report would have contravened department policy.

In his Feb. 26, 2016 order granting summary judgment to the defendants, District Court Judge R. Gary Klausner of the Central District of California recited that “[t]hroughout the course of the investigation,…the alias ‘Tammy Cameron’ somehow emerged.” But the discussion of facts reveals only that the name “emerged” when the detective inputted it in the computer, and his post-investigation recollection that somebody gave him the name.

At oral argument on Dec. 5, Circuit Judge Marsha S. Berzon speculated that “for some reason,” Brown, in doing a computer check, “had a mental relapse and looked for the wrong person.” Raymond Sakai of the Glendale firm of Lawrence Beach Allen & Choi, representing the county and Brown, acknowledged that it’s a “possibility” that Brown “blew it.”

Mention of Alias

The initial investigator, Sheriff’s Deputy Raymundo Wilson, testified at trial that he had not been told by anyone that Garrison used the alias “Cameron,” and the prosecutor, Los Angeles Deputy District Attorney Thomas Trainor, likewise said on the stand that no alias was brought to his attention. The plaintiff argued in the district court that it was only after the lawsuit was brought against Brown that, to save face for running the wrong name through the computer system, he fabricated the scenario of having been tipped off by someone, whose identity he has forgotten, that Garrison was using the alias of “Cameron.”

In his order granting summary judgment, Klausner cited a 2001 Ninth Circuit opinion, Devereaux v. Abbey, dealing with fabricated evidence (and does not mention probable cause). Under that case, he said, liability was dependent on Brown persisting in an investigation notwithstanding actual awareness of Cameron’s innocence.

“At most, the evidence on this point creates a triable issue as to whether Brown fabricated the alias story after the investigation had come to an end, not whether Brown was aware of Plaintiff’s innocence during the course of investigation,” Klausner wrote. “This factual dispute, therefore, is immaterial as it does nothing to support Plaintiff’s contention that Brown was aware of her innocence but deliberately continued the investigation.”

Berzon said:

“[A] jury could disbelieve Detective Brown’s long-after-the-fact representation that a witness provided him with the name Cameron….The only evidence that Detective Brown was given the name ‘Cameron’ by a witness comes from Detective Brown’s own deposition testimony and declaration during the course of this litigation, which began years after the underlying events. Detective Brown was unable to say which witness provided the name ‘Cameron,’ when, or whether he or she did so by phone or in person.”

Disparity in Descriptions

Klausner found little significance in the differences in the descriptions of Garrison and Cameron. In his order, he wrote:

“A weight difference of merely 25 pounds is not so extreme as to alert a reasonable officer that he has identified the wrong suspect. The only remaining evidence to support Plaintiff’s argument is the height disparity. This difference, without more, is insufficient to demonstrate that Brown should have known of her innocence but nonetheless continued the investigation.”

In the opinion reversing Klausner, Berzon said:

“A reasonable jury could find that a height difference of six inches for a woman is, at a minimum, a ‘red flag’ that ‘should have led officers to question whether the person described’ in the incident report was Cameron.”

Photo Identification

Cameron asserted that the photo identification of her did not create probable cause, under the circumstances. The victim knew the given name of his female assailant was Tammy” (according to Klausner, he did not know the surname, though Berzon’s recitation differs) and the name “tame cameron” appeared below her photo.

Six photographs were displayed, in two rows, with three photos in each row, known as a “six pack.” Cameron’s photo appeared in the center of the bottom row, so that, the plaintiff argued, the name appeared to be that of the person in that photo.

Also, Cameron complained, after the victim said he couldn’t make an identification, he was prodded by Brown to “Do your best.”

Klausner responded:

“On the whole, the Court concludes as a matter of law that the photo arrangement here was not impermissibly suggestive. Plaintiff’s photo appeared alongside five other Caucasian women with similar hair length, facial features, and physiques….The name, “Tame Cameron,” does not appear directly underneath the fifth box in the six pack; rather it is situated slightly to the right and not immediately associated with Plaintiff’s picture. Moreover, [the victim] testified that he did not know the female suspect’s last name, further undermining the notion that placement of the name under the six-pack somehow influenced him to choose Plaintiff’s photo.”

Berzon’s View

Berzon saw it differently, declaring:

“A reasonable jury could find that the six-pack photo array here, in which the name ‘tame cameron’ appeared beneath Cameron’s photograph and not beneath any other photograph in the line-up, was impermissibly suggestive. Even though the witness understood the perpetrator’s name to be ‘Tammy Garrison’ not ‘tame cameron,’ he could have seen the phonetically similar first name and somewhat similar last name and drawn an implicit connection between Cameron’s photograph and the perpetrator he was asked to identify.”

The circuit judge said that the “suggestiveness of the format of the six-pack array was exacerbated by the way the identification was performed,” pointing to Brown’s admonishment to “Do your best.”

That, she said was “a directive that the witness interpreted, reasonably, to mean pick the person in the array most similar to the perpetrator.”

Berzon added:

“While the witness had ample time to view the female perpetrator at the time of the crime and paid attention to her appearance, approximately ten months had passed between the crime and the photo identification,… and, critically, the witness exhibited a low level of certainty during the identification. Also, the description given by the witness before he was shown the array did not match Cameron’s appearance as to height, an immutable feature. For these reasons, a reasonable jury could find that the photo identification does not support probable cause.”

Qualified Immunity

Klausner did not consider whether Brown enjoys qualified immunity. He said there was no need to do because no constitutional violation occurred.

He signaled, however, that if he did have need to address the issue, he would be leaning toward ruling in Brown’s favor. The judge said in his order:

“It is worth noting,…that even if Plaintiff’s rights had been violated, she would likely have a difficult time overcoming the qualified immunity bar and showing that a reasonable person in Brown’s position would have known that his actions violated clearly established law.”

Berzon instructed that on remand, whether Brown possesses qualified immunity is to be addressed, as well as whether the county faces municipal liability under the U.S. Supreme Court’s 1978 decision in Monell v. Department of Social Services of City of New York.

The case decided Friday is Cameron v. Brown, No. 16-55421.


 

The Court Report 

Court of Appeal Gives Guidance on Employee Handbook Provisos

(Reprinted from the Metropolitan News Enterprise, January 12, 2018)

Says Acknowledgement of Receipt of Company Policies Doesn’t Constitute a Promise to Be Bound by Them

An employer that wanted to compel its employees to arbitrate any disputes they might have with the company failed to render its desired procedure compulsory by merely stating it in an office handbook and securing the recipients’ acknowledgement of receipt of the document, but not securing an express agreement to the provision, the Fourth District Court of Appeal has held.

Justice William Bedsworth of Div. Three wrote the opinion, filed Wednesday, which was not certified for publication.

The opinion also declares that Orange Superior Court Judge Kim Dunning (now on assignment to the Court of Appeal for this district) did not err in denying a motion to compel arbitration with prejudice, thus barring an effort seeking enforcement of three earlier express agreements to arbitrate.

Defendant Fountain Valley Regional Hospital and Medical Center’s employee Eda Olivares, who sued for alleged Labor Code violations, “did not agree to anything contained in the employee handbook appellants sought to enforce; at best she merely acknowledged she had received it,” Bedsworth wrote.

The 2012 handbook in issue was provided electronically, though employees could send it to a printer. The handbook said:

“I acknowledge that I have accessed and reviewed an electronic copy of the September 2012 Handbook….I further understand that the Handbook contains important information about the Company’s general personnel policies and about my privileges and obligations as an employee….I Agree By clicking I Agree, you indicate your acceptance of the statement above.”

Olivares entered her name and the date, clicked on “I agree,” and hit “Submit.”

No Contract

Bedsworth agreed with Dunning that doing so did not create a contractual agreement to be bound by the terms of the handbook, especially in light of the admonishments in it that employees served on an “at-will” basis and “this Handbook is not a contract of employment.”

The jurist wrote:

“The Employee Handbook Receipt, which appellants refer to as the ‘acknowledgement,’ does not contain language obliging Olivares to arbitrate. When she clicked on ‘I Agree,’ she was agreeing, among other things, that she had received a copy of the handbook….Nowhere, however, is there language along the lines of ‘I agree to be bound by the terms and conditions of my employment’ or ‘I agree to all the obligations set forth in the handbook.’ All she agreed to, according to the receipt, was that she accepted ‘the statement above,’ i.e., that she had received a copy of the handbook and so on. Calling this document a ‘receipt’ further obscured any possible contractual nature or intent.”

Early Agreements

Olivares, whose employment began in 2006, purportedly signed two express agreements to arbitrate that year and one in 2007. In its memorandum of points and authorities in support of the motion to compel arbitration, the employer observed in a footnote that even if the 2012 acknowledgment was not binding on Olivares, her previous express agreements were.

When Dunning denied the motion to compel arbitration and the defendants’ counsel indicated a desire to petition further based on those express agreements, the trial judge barred further litigation.

Bedsworth set forth:

“We agree with the trial court that appellants failed to petition for enforcement of the earlier arbitration agreements. The furtive reference to them in a footnote—while the body of the argument section promoted the 2012 handbook exclusively—looks too much like sandbagging to suit us. At the very least, it deprived Olivares of adequate notice about the basis of the petition so that she could respond comprehensively to it.

“The question before us is what to do about this situation. Do we allow appellants a do-over, or do we affirm the trial court’s decision that they had put all their cards on the table at once and could not keep a couple of aces up their sleeves?

“We believe the court was within its discretion to refuse to allow appellants a do-over….A rule permitting serial petitions to compel arbitration under these circumstances is simply a recipe for abuse.”

The case is Olivares v. Fountain Valley Regional Hospital and Medical Center, G053514.

Attorneys on appeal were Elizabeth Staggs-Wilson, Keith A. Jacoby, Henry D. Lederman and Anthony G. Ly of Littler Mendelson for the employer and Matthew J. Matern and Matthew W. Gordon of Matern Law Group for Oliveras.