Metropolitan News-Enterprise


Thursday, March 17, 2005


Page 1


State Supreme Court to Rule on Scope of Family Leave Act


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday agreed to decide whether a person who holds two jobs but claims to be unable to work at one of them can take a leave under the California Family Rights Act while still working at the other job.

Justices, at their weekly conference in San Francisco, voted 5-1 to hear Antonina Lonicki’s claim that Sutter Health Central in Sacramento violated CalFRA by denying her request for medical leave. Justice Marvin Baxter voted to deny review, and Justice Janice Rogers Brown was absent and did not participate.

Sutter argued that Lonicki—a sterile processing technician—was not suffering from a “serious health condition,” as evidenced by the fact that she continuing to work at a Kaiser facility in the area, performing duties similar to those of her Sutter job.

Sacramento Superior Court Judge Joe Gray agreed with Sutter, ruling that her ability to continue working for Kaiser established as a matter of law that she was not entitled to a medical leave from the Sutter job.

The Third District Court of Appeal, with Presiding Justice Arthur Scotland and Justice George Nicholson in the majority, agreed.

“CalFRA, like the [federal Family and Medical Leave Act], was intended to balance the demands of the workplace with the needs of employees,” Scotland wrote. “...It was not intended to shift the balance of power to a capable but unwilling employee.”

Dissenting Opinion

Justice Fred Morrison dissented. He argued that it was legally possible for a person to be medically able to work at one job, but not two, and that the burden on summary judgment should have been placed on the defendant to show that Lonicki was able to work for Sutter.

In another action at the conference, the court granted an evidentiary hearing to a Death Row inmate who claims that a juror in his case knew the victim and was biased against him as a result.

Clifford Bolden was sentenced in 1990 to die for the 1986 murder of Henry Michael Pedersen in a San Francisco robbery. Bolden is one of only two defendants sentenced to death by San Francisco judges—out of a statewide total of more than 560— since California reinstated the death penalty in 1979.

He was prosecuted by former District Attorney Arlo Smith. The current district attorney, Kamala Harris, has vowed never to seek the death penalty, a position that was held by her predecessor, Terrence Hallinan, as well.

Witnesses said Bolden and Pederson met at the Pendulum, a Castro district bar known as a place for black and white men to meet. Bolden had placed a personal ad in a local newspaper, describing himself as a “black body builder, sculptured rock hard” and offering his services as an escort and model.

Pedersen’s body was found in the bathtub of his apartment, wrapped in a brown bedspread. An autopsy revealed that he had been stabbed to death, had his nose fractured, and was heavily intoxicated.

The defense argued that there was reasonable doubt as to whether Bolden was the killer, and, if he was, whether the motive was robbery.

Reference Ordered

The high court yesterday ordered that a factfinder, to be appointed at an unspecified future date, determine whether Bolden’s trial lawyer offered ineffective assistance by not specifically asking potential jurors if they knew the victim. The referee will also determine whether the juror in question knew the victim; whether he engaged in prejudicial misconduct by failing to disclose that fact, if it was a fact; and whether the same juror prejudged the death penalty issue or refused to deliberate in the penalty phase.

The justices also granted evidentiary hearings to three Death Row inmates, Horace Kelly, David Fierro, and Delaney Marks, to determine whether their sentences must be reduced to life imprisonment without parole under a U.S. Supreme Court decision barring execution of the mentally retarded.

The justices also denied review of a First District Court of Appeal ruling declaring unenforceable a public works contract provision by which the contractor purported to waive its right to seek neutral venue if sued by the county with which it contracted.

“Permitting a county to extract an advance waiver of the right of a private party to have disputes with the county resolved in a neutral forum would be at odds with the fundamental principle that a party may not waive the benefits of a statute enacted primarily for a public purpose,” Justice Stuart Pollak wrote for Div. Three in Arntz Builders v. Superior Court, A106242.


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