Quote of the Day - Every time I walk down the street people are screaming, 'You're fired!'
*At Will* In An Employment Contract Means Termination Without Cause
Yesterday, the California Supreme Court ruled in the Dore v. Arnold Worldwide, Inc. case that an employment contract containing an "at will" clause and without a definite term for employment means that either an employer or an employee can terminate that contract without cause and without explanation. The particular contract in issue in this case included a provision that the termination could occur "at any time."
Previously, the courts of appeal in California were split whether that additional term should be interpreted to mean the contract required 'cause' before an employee could be terminated. Disagreement existed whether 'at any time" meant that there was some undefined length of employment, requiring notice and good reason before terminating an employee.
Those disagreements exist no longer. The Supreme Court overruled (they used the term 'disapproved")* the several cases that required an explanation before firing an employee where the contract included "at any time" language, even though the employment contract didn't actually include "cause" language.
Now, California employers can terminate California employees at any time for any reason, without cause as long as the employment contract specifies the employment is "at will" and does not contain any language about how long the employment will last (even if it contains "at any time" language). The split between the courts of appeal has been resolved in favor of California employers.
The three disapproved cases are: Seubert v. McKesson Corp. (1990) 223 Cal.App.3d 1514; Wallis v. Farmers Group (1990) 220 Cal.App.3d 718; and, Bert G. Gianelli Distributing Co. v. Beck & Co. (1985) 172 Cal.App.3d 1020. The Court tossed out precedent over 20 years old to reach this decision.
Tech Tip Of The Day And Blog Update; Request for Updated Links
By now, even the Luddites among us have at least seen memory sticks that allow easy transport of data between computers. MIPTC has a freebie 64k stick from a Saturn test drive at BloGher, which is now attached to my car keys for everyday use. I also carry a big 8 meg stick for those larger files.
It flashed into my head recently that it might be a good idea to include some identifying information on the sticks, but rather than attach a return address label to the outside, I downloaded my Outlook .vcf card to it. If I lose it, then the finder will know how to return it to me. For security purposes, I've included only my business contact information.
MIPTC is also going through an overhaul of its blogroll (over there on the left navigation bar), removing broken links and referrals to blogs that haven't seen a post in awhile. I've also updated a significant number of links to note moves from standard blogging platforms like Typepad and Wordpress to stand-alone sites. If you notice that you're blog has been removed and want it returned to the list, then send an email* to me at jcraigwms (at) wlf-law (dot) com. Likewise, if your blog is not on the blogroll and you'd like to be, I'll be happy to take a look at your blog and add it. Just keep those cards and letters coming.
* In order to prevent comment spam, MIPTC's comment box will not allow you to post a URL there, so you will have to send an email to me to get listed.
Coast to Coast Internet Radio Talks Blawgging At Big FirmsBlogging has become a very popular way to share facts and opinions on any topic that you could imagine. The majority of legal bloggers are attorneys from small and individually owned firms, while lawyers at large firms have, for the most part, stayed away from it. Join me and my co-host and fellow Law.com blogger Bob Ambrogi as we speak to three top blawggers and attorneys, Denise Howell, who writes the blawg "Bag and Baggage," Ernie Svenson, who writes "Ernie the Attorney" and Howard Bashman, who writes "How Appealing." Give a listen.
Modesto Contamination Punitive Damages Cut By Ninety Percent
Back in June, MIPTC reported that the City of Modesto won a $175 million verdict against Dow Chemical, Vulcan Materials and a third and much smaller company, R.R. Street. I also opined that the verdict wouldn't last.
Today, the Daily Journal reported that San Francisco City & County Superior Court Judge John Murther, who presided over the jury trial, cut that verdict to just under $13 million. Vulcan Materials' share is just over $7.2 million and Dow's verdict dropped to $5.4 million. R.R. Street stayed at $75,000 (in part because it didn't seek to overturn the jury's award). The total is four times the amount of a compensatory damage awarded by the jury.
While the parties are back to a result more in line with recent U.S. and California Supreme Court guidance, we have yet to see what will happen on appeal, which may follow this ruling or may wait until evidence on the other 40 allegedly contaminated sites is heard by the jury. This ruling resulted from evidence on only five of the sites.
Dow and Vulcan asserted defenses based on state-of-the-art knowledge at the time the contamination occurred, and will likely seek to overturn the jury's verdict(s) altogether. That appeal will present issues on state-of-the-art arguments, which may (or may not) be recognized as valid defenses.
Pro Per Plaintiff Leaves No Doubt What He Thinks Of The Lower Court Proceedings
I'll go out on a limb here and predict George C. Swinger, Jr. loses the appeal, too.
Leaky Condo Roof Turns Seller's Failure To Disclose Into Costly Exercise
You buy a condo with a leaky roof, and the seller did not disclose the leaks. To top it off, shortly after you buy this pig-in-a-poke, the homeowner's association levies a $15,000 assessment against you to repair the leaky roof. You're not happy.
To top it off, you discover shortly after you move in that the seller was the president of the homeowner's association. Now, you're really not happy. Not surprisingly, you ask the seller to pay the assessment.
Seller refuses, and instead sues you and the homeowner's association.
Exactly what the Court of Appeals (and the trial court) thought. Technically speaking, both courts agreed with the homeowner's association that the seller didn't have standing to sue the HOA because seller was no longer an owner.
HOA walks away from this case with a sizable award (over $25,000) of attorneys fees and costs for the trial and the appeal. The buyer won a defense verdict, and the attorneys fees and costs (presently calculated at over $200,000) is still progressing, but it's not going to take a crystal ball to figure out how it will turn out. MIPTC predicts the seller will have to pay those fees and costs. The best defense turned out not to be a good offense.
Oh, and by the way, the buyer offered in the beginning to settle the whole darn mess - prior to litigation - for $7,000.00.
BloGher Advice: Stop Making (A-) Lists And Link To Me
Advice heard and followed. See MIPTC's new blogroll for BloGher bloggers over there to the left. More submissions welcome - send an email to jcraigwms (at) wlf-law (dot) com.
Just for the record, MITPC has not ever created an A-list of bloggers, but as I learned this weekend, if there is one, Dooce better be on it.
Is The Writing On That Napkin A Contract?
Contracts can come in all shapes and sizes, and in the words of my contracts professor, Eric Andersen, even on eggshells. That's right. He litigated a case involving a contract written on an eggshell. When I saw an article about a contract on a napkin, it didn't surprise me. Now that I've been practicing law almost 20 years, not much about the law surprises me anymore. People do the silliest things. But that's a different story for a different post.
Lawyers are trying to find way to recover for clients who made "the pitch" to Hollywood execs only to be turned down but then find their idea on the small or big screen. MIPTC extensively covered the fallout from the Grosso decision, and predicted this type of creativity. It used to be that the studios immediately removed copyright claims to federal court, where federal judges just as promptly dismissed them. Then came the Ninth Circuit's decision, which opened Pandora's box and increased the causes of action available to screenwriters and others to include state court claims for breach of contract.
The question then becomes what constitutes a contract? Yes, it's possible to have a contract on a napkin, but it has to contain the essential elements of the contract and be signed by the party to be charged with performance - the screenwriter and the studio exec.
But don't count on getting a studio exec's signature anytime soon. Studio contracts frequently say they won't pay for generic ideas, and it's more likely that exec will put a contract in front of screenwriters that disclaims liability and likely includes a waiver of that screenwriter's claims against the studio. That arrangement makes it difficult to conduct business, and requires that lawyers get involved on both sides early in the process - even before the pitch is made.
What do both sides expect from the pitch? What determines whether an idea is generic or specific? What rights belong to each party as ideas are exchanged and built upon?
There are no easy answers, but pitches without copyrights are unprotected, and without a signed contract, they're still not protected. As the old saw goes, an oral contract is about as good as the paper it's written on.