2002-10

UNITED STATES SUPREME COURT

A.        Remedial Scheme Of ADA Precludes Suit Against Individual Public Official For Violation Of 42 U.S.C. Section 1983.

The Ninth Circuit Court of Appeals has affirmed in part and reversed in part, the district court’s grant of summary judgment in an action alleging violation of the ADA and Rehabilitation Act. Vinson v. Alice Thomas, et al., 2002 Daily Journal DJDAR 4861 (9^th Cir. May 6, 2002) (opinion by Thompson, J., joined by Berzon, J., dissenting opinion by O’Scannlain, J.).

Vinson injured his neck and back while working for a flooring company. He received Workers’ Compensation benefits, including vocational rehabilitation benefits. Vinson was referred to a rehabilitation specialist who felt that attendance at a two-year community college would be an important element of vocational rehabilitation. Approval was sought from the Hawaii Department of Labor and Industrial Relations (“DLIR”) to accommodate Vinson’s dyslexia. Alice Thomas, the DLIR vocational rehabilitation supervisor, determined that Vinson should take 15 units per semester. Vinson’s Workers’ Compensation attorney requested that Vinson be permitted to take 9 units per semester along with an appropriate computer. Thomas asked Vinson to submit certain medical information because she was not convinced that he had dyslexia.

Although Vinson provided documents which related to his history of a learning disability, they were not medical records. Thomas repeated her request for the medical and/or psychological evidence regarding his claim of a disability. Thomas suspended Vinson for 60 days to give him time to submit the requested information. A report was submitted which contained extensive information about Vinson’s diagnostic, academic and behavioral history, his vocational rehabilitation testing, his progress at college and his current status. Thomas concluded that this information was insufficient because it did not contain specific information regarding Vinson’s inability to complete more than 9 credits per semester. Vinson’s case was closed as “not feasible” and his request for state-funded rehabilitation schooling was denied.

Vinson filed suit under the ADA and the Rehabilitation Act, alleging that Thomas and the DLIR discriminated against him by denying his request for reasonable accommodations. Although the DLIR re-opened his case and granted vocational rehabilitation benefits, including schooling at his requested pace of study, Vinson continued to seek monetary damages for the emotional distress he suffered as a result of the DLIR’s earlier refusal to accommodate his dyslexia.

The district court granted summary judgment in favor of the DLIR and Vinson appealed. With respect to the rehabilitation claim, the DLIR attempted to invoke sovereign immunity under the Eleventh Amendment. The Court of Appeal held that the Eleventh Amendment was not a bar to Vinson’s Section 504 claim against the DLIR because the State of Hawaii had accepted Rehabilitation Act funds.

The Court also analyzed whether Vinson met the statutorily defined requirements to establish that he was disabled under the Rehabilitation Act:

"(1) whether he suffered from dyslexia, and if so (2) whether his dyslexia was an impairment under the Act, and if it was (3) whether a major life activity was substantially limited by that impairment."

Based on the evidence (i.e., observational and anecdotal data to establish dyslexia, letters referring to his long standing learning disability, a history of accommodation as a person with a disability throughout his schooling and a letter from the college indicating that he needed extra study time because of his dyslexia), the Court concluded that genuine issues of fact existed as to whether Vinson has dyslexia and whether it was an impairment which substantially limited his ability to learn.

The district court did not consider the issue of reasonable accommodation because of its finding that Vinson had not submitted to the DLIR sufficient evidence that he was disabled. Vinson bore the initial burden of producing specific evidence that a reasonable accommodation was possible. The burden then shifted to the DLIR to produce rebuttal evidence that the requested accommodation was not reasonable. If Vinson was disabled, the DLIR had a duty to engage in the interactive process to consider his request for accommodation. The record reflected genuine issues of material fact concerning issues such as whether the DLIR engaged in an interactive process in good faith, whether the requested accommodations were reasonable, whether the proposed accommodations would alter the nature of the vocational rehabilitation services provided by DLIR or whether Vinson was otherwise qualified to complete the plan even with accommodation. For these reasons, the Court concluded that summary judgment was inappropriate.

In addition to suing the DLIR, Vinson sued Thomas under 42 U.S.C. section 1983 in both her official and individual capacities. The district court concluded that neither the DLIR nor Thomas in her official capacity were proper defendants under Section 1983. As Vinson did not appeal that decision, the Court limited its analysis to the 1983 claim against Thomas in her individual capacity. As to that claim, Vinson claimed that Thomas violated the ADA and the Rehabilitation Act. The Court of Appeals held that a plaintiff “cannot bring an action under 42 U.S.C. § 1983 against a State official in her individual capacity to vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation Act.” For this reason, “Vinson’s claim against Thomas in her individual capacity under 42 U.S.C. § 1983 fails.”

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CALIFORNIA COURT OF APPEAL

A.        An Offer To Compromise May Not Be Revoked After It Has Been Accepted In A Clear And Unequivocal Fashion.

The Court of Appeal has affirmed the grant of summary judgment on the ground that an action was barred by virtue of a settlement. Monika Gray v. Crystal Ann Stewart, et al., 2002 Daily Journal DJDAR 4683 (Cal.App. May 2, 2002) (1st App. Dist., Div. 4) (opinion by Reardon, J., joined by Kay, P.J. and Rivera, J.).

The plaintiff served an offer to compromise in the sum of $5,000.00 pursuant to Code of Civil Procedure section 998. Without attaching any terms or conditions, defense counsel accepted this offer in unambiguous terms. The next day, the plaintiff’s attorney faxed a letter to defense counsel which purported to revoke the offer which had already been accepted. The trial court granted summary judgment on the ground that the action was barred by virtue of the settlement.

Plaintiff argued that the defendant’s oral acceptance of the 998 offer was invalid because written notice of acceptance was required. The Court disagreed, noting that section 998 “does not require that the acceptance be in writing nor does it specify the manner in which acceptance must be communicated.” The Court stated that:

"Therefore, pursuant to Civil Code section 1582, any reasonable and usual mode of communication may be used to accept a section 998 offer unless a specific mode was prescribed in the offer. [Citations.] Because the offer to compromise did not prescribe any specific mode of communication of the acceptance, the only requirement was that the acceptance be communicated in a clear and unequivocal fashion."

Plaintiff next argued that the acceptance was not sufficiently communicated because she was not served with written acceptance. The Court rejected this argument because section 998 does not require service of acceptance. Finally, plaintiff argued that the acceptance was not valid because proof of acceptance was filed with the Court after the attempted revocation. Although section 998 requires the filing of proof of acceptance with the court within 30 days, it does not dictate when the proof of acceptance must be filed. The fact that proof of acceptance was not filed until after plaintiff’s attempted revocation did not affect the validity of the acceptance. 

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B.        Dispute Ordered To Arbitration May Require Joinder Of Third Party Who Did Not Sign Arbitration Agreement.

The California Court of Appeal has reversed the superior court’s denial of a motion to compel arbitration as to a third party who did not sign the arbitration agreement. Zakarian v. George Bekov, 2002 Daily Journal DJDAR 5053 (Cal.App. May 10, 2002) (1^st App. Dist., Div. 1) (opinion by Marchiano, P.J., joined by Stein and Swager, J.J.).

William Ellis, a physician, had his patients sign an arbitration agreement. He performed laser eye surgeries with equipment serviced by George Bekov. The arbitration agreement signed by Ellis’ patients provided that medical malpractice disputes would be resolved through arbitration. The agreement called for the joinder of parties who would be necessary to resolve the dispute:

"I also hereby consent to the intervention or joinder in the arbitration proceeding of all parties relevant to a full and complete settlement of any dispute arbitrated under this Agreement . . ."

Bekov was not a party to the arbitration agreement. In the context of a class action, Defendants Ellis, Bekov and the Ellis Eye & Laser Center filed a motion to compel arbitration. The superior court granted the motion as to Ellis but denied arbitration of all issues relating to Bekov. Ellis and Bekov appealed from the order denying the motion to compel arbitration, contending that the express terms of the arbitration agreement contemplated joinder of parties such as Bekov to ensure a complete settlement of disputes subject to the agreement. The plaintiffs argued that Bekov could not compel arbitration because he was not a signatory to the agreement.

The Court of Appeal concluded it was clear the parties had agreed that the issue of whether Bekov may intervene or be joined in the arbitration was to be determined by the arbitrator. The Court held, “the allegations of entanglement between Ellis and Bekov bring the case against Bekov well within the scope of the language of the agreement regarding arbitration of questions of joinder of parties relevant to a full settlement of an arbitrated dispute.” The Court further held, “by denying the motion to compel arbitration, the court did not give effect to the role that the parties had contractually reserved to the arbitrator. The plain language of the arbitration agreement requires reversal of the order denying appellants’ motion to compel arbitration of the arbitrable claims as to Bekov.” Therefore, the case was referred back to the arbitrator regarding the issue of Bekov’s joinder.

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C.        Homeowners who Hire Unlicensed Contractors may be Statutory Employers Subject to OSHA Regulations.

The Court of Appeal has reversed the grant of summary judgment in favor of a private homeowner who claimed that OSHA regulations do not apply to private homeowners who hire unlicensed contractors. Fernandez v. Lawson, 2002 Daily Journal DJDAR 5221 (Cal.App. May 15, 2002) (2^nd App. Dist., Div. 7) (opinion by Woods, J., joined by Lillie, P.J. and Perluss, J.).

Lawson was a private homeowner who hired Lascano’s tree trimming service to trim a palm tree in his yard. Lascano presented Lawson with a business card which identified a license number. Unknown to Lawson, the license had expired and nobody at Lascano’s company held the required state contractor’s license. Fernandez fell while trimming the tree and suffered various injuries. He sued Lawson for violating Labor Code section 2750.5 for hiring an unlicensed contractor. He also sued for violations of OSHA. The trial court granted summary judgment in Lawson’s favor, concluding that the OSHA regulations did not apply to homeowners.

Under Labor Code section 2750.5, the hirer of a contractor for a job requiring a license is the statutory employer not only of the unlicensed contractor but also those workers employed by the unlicensed contractor. Statutory employer status imposes statutory requirements including the obligation to comply with OSHA regulations. A contractor may be estopped from claiming employee status under Section 2750.5 where the contractor has through his deed or word led the hirer to believe that the contractor held a valid license for the work. The Court held that the evidence on estoppel raised triable factual questions for the jury. Listing a license number on a business card raised factual questions as to whether the license status was misrepresented. Thus, the Court of Appeal concluded that the trial court “erred in finding as a matter of law section 2750.5 applied.”

The trial court never reached the factual questions of whether OSHA regulations were violated because it determined that OSHA regulations are inapplicable to homeowners in the context of tree trimming for the homeowner’s personal, non-commercial benefit. The Court of Appeal disagreed with the assessment that OSHA regulations would never apply to homeowners in this context and the grant of summary judgment was reversed and remanded.

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