Corporate Transitional Justice

LESLEY WEXLER, NICOLA SHARPE

Illinois law professor Lesley M. Wexler and Nicola Sharpe discuss various corporate responses to the recent storming of Capitol Hill and consider whether such responses might constitute private transitional justice. Professors Wexler and Sharpe point out, however, that simply vocalizing a commitment to social justice, diversity, and inclusivity is not enough; corporations should diversify boards and leadership representation and take other quantifiable steps that transform corporate culture and processes.

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Schmid v. City & County of San Francisco

Docket: A158861(First Appellate District)

Opinion Date: February 1, 2021

Judge: Streeter

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law

A bronze sculpture, “Early Days,” was originally part of a Civic Center monument to California's pioneer period. In 2018, at the request of the San Francisco Arts Commission, the San Francisco Historic Preservation Commission (HPC) granted a Certificate of Appropriateness to take down “Early Days” and place it in storage. Early Days displayed a racist attitude toward Native Americans. Acting upon evidence of “significant adverse public reaction over an extended period of time,” the HPC authorized the removal; the Board of Appeals affirmed. Opponents of the removal asserted “a potpourri of claims,” including a claim under the Tom Bane Civil Rights Act (Civ. Code 52). They alleged that the Board of Appeals abused its discretion in authorizing the removal and that the manner of the removal, in the pre-dawn hours of the day following the Board's decision, was illegal. The court of appeal affirmed the dismissal of the suit. Even if the opponents had adequately alleged the violation of rights amenable to Bane Act enforcement, their complaint does not allege anything that might reasonably be construed as “threats, intimidation or coercion” to violate those rights. There is no support for conclusory allegations that the Board acted in excess of its authority or abused its discretion.

Kieu Hoang v. Phong Minh Tran

Docket: B302608(Second Appellate District)

Opinion Date: February 1, 2021

Judge: Kenneth R. Yegan

Areas of Law: Civil Rights, Constitutional Law, Personal Injury

The Court of Appeal reversed the trial court's order denying defendant's special motion to strike plaintiff's complaint as a strategic lawsuit against public participation (SLAPP), Code Civ. Proc., 425.16. Plaintiff filed suit against defendant for defamation and other torts, alleging causes of action arising from an article about him that defendant had written in Vietnamese. The court concluded that the trial court erroneously determined that defendant had failed to satisfy the first prong of the anti-SLAPP statute, i.e., defendant had not made a threshold showing that plaintiff's action arose from protected activity in connection with an issue of public interest. In this case, the article concerned a matter of public interest because plaintiff was "in the public eye" in the Vietnamese community. Furthermore, plaintiff is collaterally estopped from claiming that the article did not concern an issue of public interest because this issue was decided against him in the prior BBC proceeding. The court also concluded that the trial court erroneously determined that plaintiff had satisfied the statute's second prong, i.e., plaintiff had demonstrated a probability of prevailing on his claims. The court explained that plaintiff has failed to carry his burden of establishing a probability that he can show by clear and convincing evidence that defendant acted with actual malice. Finally, the court concluded that plaintiff cannot establish a probability of prevailing on his second cause of action for violation of the common law of publicity and his third cause of action for civil conspiracy.

California Advocates for Nursing Home Reform v. Aragon

Docket: A158035(First Appellate District)

Opinion Date: February 1, 2021

Judge: Petrou

Areas of Law: Consumer Law, Government & Administrative Law

The plaintiffs are a non-profit organization “dedicated to improving the care, quality of life, and choices for California’s long-term care customers,” residents and former residents of facilities managed by CVSC, and the estates of formers residents at the defendant's facility. The defendant is licensed by the California Department of Public Health (CDPH) to operate or manage a skilled nursing facility (SNF). The defendant had an agreement with CVSC, a corporation engaged in the nursing home business as a management company, to operate the SNF. This Management Services Agreement is allegedly representative of similar agreements executed by CVSC to operate other California SNFs. The plaintiffs asserted that state law requires that an SNF be operated and managed by the entity that holds the license to operate the SNF, not by a management company. The trial court held that approval of unlicensed management companies to operate licensed SNFs does not violate state or federal law. The court of appeal affirmed, rejecting an argument that the management agreements are illegal because the licensee (not an unlicensed management company) must operate and manage the SNF. The operation of a SNF by an unlicensed management company does not diminish the continuing responsibility of a licensee to its SNF.

Choochagi v. Barracuda Networks, Inc.

Docket: H045194(Sixth Appellate District)

Opinion Date: February 1, 2021

Judge: Greenwood

Areas of Law: Labor & Employment Law

In 2012, Barracuda hired Choochagi. In 2013, Choochagi reported to Human Resources that his supervisor made inappropriate sexual comments. The company investigated. In 2014, Choochagi began experiencing severe migraine headaches and eye irritation, which required medical treatment. Choochagi was permitted to take time off as requested. Choochagi was later terminated. Barracuda characterized Choochagi as a “poorly performing employee” who made “baseless discrimination claims” after he was terminated. Choochagi filed suit under the Fair Employment and Housing Act (FEHA), the California Family Rights Act (CFRA), and alleged wrongful termination in violation of public policy. The trial court granted summary adjudication on most of Choochagi’s claims. A jury returned a defense verdict for Barracuda on the remaining claims. The court of appeal affirmed. Choochagi’s evidence was insufficient to raise a triable issue of fact as to whether Choochagi was informed of his right to CFRA leave, whether he requested CFRA leave, and whether any such request was denied. Absent evidence of such a request, Choochagi could not have suffered an adverse employment action because he exercised his right to take CFRA leave. Barracuda submitted evidence that it had policies and procedures in place to prevent discrimination and harassment and that the HR department directed an immediate investigation of Choochagi’s complaint.