California Employment Law Notes - September 2017

Author:Mr Anthony Oncidi
Profession:Proskauer Rose LLP
 
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Jobseeker Website May Be Compelled To Disclose Identity Of Anonymous Posters Who Criticized Employer

ZL Technologies, Inc. v. Does 1-7, 13 Cal. App. 5th 603 (2017)

ZL Technologies brought suit, alleging libel per se and online impersonation, against seven anonymous individuals who represented themselves as current or former ZL employees and who posted critical reviews of ZL's management and work environment on Glassdoor (a website where workers can post "reviews" of their employers). ZL served a subpoena on Glassdoor, requesting records identifying and providing contact information for the anonymous posters, but Glassdoor refused to comply. The trial court denied ZL's motion to compel Glassdoor to comply with the subpoena and eventually dismissed the lawsuit in light of ZL's failure to serve the defendants with the lawsuit. The Court of Appeal reversed, holding that the reviews contained statements that declared or implied provably false assertions of fact, providing a legally sufficient basis for a defamation cause of action. The Court further held that "the constitutional protections [First Amendment and privacy rights] weigh in favor of requiring [ZL] to make a prima facie evidentiary showing of the elements of defamation, including falsity, before disclosure of a defendant's identity can be compelled."

Employer Can Recover $90,000 In Costs From Employee Who Rejected Multiple Settlement Offers

Sviridov v. City of San Diego, 2017 WL 3493855 (Cal. Ct. App. 2017)

Aleksei Sviridov, a former police officer for the City of San Diego, was terminated from his job in 2007, reinstated in 2008 and then failed to return to work thereafter, which resulted in a second termination. Following years of litigation and three prior appeals, the case was remanded to the trial court with directions to enter judgment in favor of the City and to award the City its costs on appeal. The City filed a memorandum of costs in which it sought $90,378. Sviridov moved to strike the City's cost bill on the ground that the City could not recover its costs against an unsuccessful plaintiff under the Fair Employment and Housing Act ("FEHA") "unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit," citing Williams v. Chino Valley Indep't Fire Dist., 61 Cal. 4th 97 (2015). The City provided evidence that it had served Sviridov with three separate statutory settlement offers under Cal. Code Civ. Proc. § 998 (all rejected by Sviridov) in which it offered to waive costs in exchange for a dismissal of the action. The trial court determined that Williams did not apply because the only claim to survive to trial was a claim under the Public Safety Officers Procedural Bill of Rights Act, which statute does not bar recovery of ordinary costs by a prevailing party. The Court of Appeal affirmed, holding that "a blanket application of Williams to preclude section 998 costs unless the FEHA claim was objectively groundless would erode the public policy of encouraging settlement in such cases."

Malicious Prosecution Action Against Former Employer's Law Firm Was Properly Dismissed

Parrish v. Latham & Watkins LLP, 3 Cal. 5th 767 (2017)

In a prior litigation, FLIR Systems, Inc. and Indigo Systems Corp. (collectively, "FLIR") brought suit against their former employees, William Parrish and E. Timothy Fitzgibbons (the "Former Employees"), for, among other things, misappropriation of trade secrets. The Former Employees defeated those claims and then obtained a ruling that the misappropriation of trade secrets claim had been brought against them in bad faith, which resulted in an order that FLIR pay the Former Employees their attorney's fees and costs in an amount exceeding $1.6 million. Thereafter, the Former Employees brought this malicious prosecution claim against FLIR's attorneys (Latham & Watkins LLP), which Latham moved to strike under the anti-SLAPP statute (Cal. Civ. Proc. Code § 425.16). The trial court granted the motion, and the Court of Appeal affirmed, but on different grounds - holding...

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