The Appellate Strategist : Appellate Lawyers & Attorneys for Updates on Trial Consultations, Amicus Briefs & Punitive Damage Awards

Governor Jerry Brown has acted to fill the California Supreme Court vacancy created by the retirement earlier this year of Associate Justice Carlos R. Moreno by nominating U.C. Berkley law professor Goodwin Liu to the post. 

Professor Liu, 40, has never been a judge, but recently garnered headlines as President Obama’s nominee for a seat on the U.S. 9^th Circuit Court of Appeals. His confirmation was blocked by Senate Republicans, citing his legal philosophy and despite support from prominent legal conservatives Kenneth W. Starr and Richard Painter. He ultimately withdrew his nomination. 

Professor Liu is the son of Taiwanese immigrants. He was born in Georgia, but raised in Sacramento where, according to his CV, he attended public schools. He graduated Stanford in 1991 with a bachelor’s degree in biology, then went to Oxford on a Rhodes scholarship, where he took a masters degree in philosophy and physiology. “Upon returning to the United States, he went to Washington, D.C., to help launch the AmeriCorps national service program and worked for two years as a senior program officer at the Corporation for National Service.” 

Professor Liu’s career in the law began upon graduation from Yale Law School in 1998, whereupon he clerked for Judge David Tatel of the U.S. Court of Appeals for the District of Columbia Circuit. He then worked “as Special Assistant to the Deputy Secretary of the U.S. Department of Education, where he developed and coordinated K-12 education policy.” A U.S. Supreme Court clerkship with Justice Ruth Bader Ginsburg followed, then a stint in O’Melveny & Myers’ appellate litigation practice in Washington, D.C. Since joining the Boalt Hall faculty in 2003, he has ascended to the rank of Associate Dean and Professor of Law while establishing himself as a nationally recognized expert on constitutional law, education policy, civil rights, and the Supreme Court. 

He is also a prolific and influential legal scholar. Some of his more recent publications include:

• Keeping Faith With The Constitution (2009) (with Pamela S. Karlan and Christopher H. Schroeder);
   
• The Bush Administration and Civil Rights: Lessons Learned, 4 Duke Journal of Constitutional Law & Public Policy 77 (2009);
  
• National Citizenship and the Promise of Equal Educational Opportunity, in The Constitution in 2020 (Jack M. Balkin & Reva B. Siegel eds., 2009);
  
• Rethinking Constitutional Welfare Rights, 61 Stanford Law Review 203 (2008).

• Print
• Comments
• Trackbacks
• Share Link

In a day and age when every other day there seems to be a sex scandal involving a politician’s “indiscretions,” the Florida Supreme Court has been asked to examine a legal issue arising out of an alleged sex scandal. In DelMonico v. Traynor, No. SC10-1397, the Court must determine whether an attorney is protected by the litigation privilege against claims for defamation and tortious interference when he related to another party’s ex-spouses and former business associates during witness interviews that the party used prostitutes to entice business clients. The Court accepted the case for review based on conflict with the Court’s prior decision in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell P.A. v. U.S. Fire Insurance Co., 639 So. 2d 606 (Fla. 1994). The district court’s decision is reported at 47 So. 3d 1287 (Fla. 4th DCA 2010), and the slip opinion can be found here. The Court heard oral argument on June 9, 2011.

The District Court’s Decision. The district court affirmed the application of the privilege to bar the claims against the attorney and his law firm. Over the dissent of one judge, the district court held that “[b]ecause the statements complained of were made by the [attorney] while he was acting as defense counsel in the underlying litigation, and the statements bore ‘some relation’ to the proceeding, they were absolutely privileged as a matter of law.” 

The dissent, on the other hand, questioned whether a qualified, rather than absolute, privilege applied since the attorney’s defamatory statements targeted a person outside a “judicial proceeding.”  It then concluded that disposition by summary judgment was not appropriate because “there remain disputed issues of material facts as to whether the attorney made the statements and whether they were made with the intent to injure the appellant.”

Review before the Florida Supreme Court. The Florida Supreme Court accepted review of the case based on express and direct conflict with its decision in Levin Middlebrooks which held that “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior . . . so long as the act has some relation to the proceeding.” Petitioners asserted that the district court’s holding conflicted with Levin Middlebrooks “by applying an absolute privilege to statements defaming a party outside of a judicial proceeding, at a time when the defamed party and/or his lawyer are not present, not provided an opportunity to be heard, and not able to have any judicial recourse because the defamatory statements are not made in the ‘course of the judicial proceeding.’”

In sum, the issue before the Court turns on the meaning of the phrase “course of judicial proceeding.” Does the “course of judicial proceedings” requirement become non-issue once a lawsuit is filed? Does it sweep into its net comments made during potential witness interviews outside the presence of the defamed party or a judge? Does the term require that the statements be made during a formal discovery process (e.g., deposition, answer to interrogatories), a court filing, or in open court? In the end, the Court will have to balance “the chilling effect on free testimony” versus “the right of an individual to enjoy a reputation unimpaired by defamatory attacks” based on the facts of this case.

• Print
• Comments
• Trackbacks
• Share Link

Under respondeat superior, an employer is held vicariously liable for the acts of an employee when driving a vehicle within the scope of employment, irrespective of any fault by the employer. Alternatively, an employer can be directly liable for its own negligence under the theory of negligent hiring/retention or negligent entrustment. As a practical matter, a plaintiff injured by the driving employee can allege all such theories; however, does that remain true once the employer admits liability under respondeat superior?

In Armenta v. Churchill (1954) 42 Cal.2d 448 (Armenta), the California Supreme Court held that once an employer admits liability under respondeat superior for an employee driver, the plaintiff is then barred from also pursuing a claim of negligent entrustment. The Court concluded that these were merely two alternative theories for holding an employer liable for the same injury. Under the “all of nothing” principles then in place, an employer would either be held for 100% of the damages, or none at all, regardless of the theory used. However, since Armenta, California has adopted comparative negligence principles and voters enacted Proposition 51, creating mechanisms for parsing out the separate liability of each party involved. As a result, the courts of appeal split as to the continuing viability of Armenta, with the Court of Appeal in Diaz finding that Proposition 51 required a separate evaluation of the employer’s direct liability.

In Diaz v. Carcamo (2011) ___ Cal.4th ___, S181627, the unanimous Supreme Court has resolved the conflict below and upheld Armenta, noting that this remained the majority rule in the U.S. The Court first dismissed the purported distinction between a claim of negligent entrustment (Armenta) and negligent hiring (Diaz), noting these were “functionally identical” when addressing an employee driver. The Court also found it made no difference whether the employer conceded vicarious liability before or during trial. As to the main issue, the Court sided with Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, finding that the employer’s liability cannot exceed that of the employee driver who allegedly caused the accident, and that nothing in the development of negligence principles since Armenta had changed this. As a result, once vicarious liability for the employee is conceded, making the employer fully liable for the employee’s actions, the additional claims of negligent entrustment or negligent hiring become duplicative and superfluous and must be barred. Indeed, the Court noted the inherent inequity of holding the employer for a second share of liability in excess of the negligent driver’s liability, and remanded for a full retrial. For more details about Diaz, see the Torts & Products update page.
 

• Print
• Comments
• Trackbacks
• Share Link