Thursday, April 17, 2014
S.C. Will Not Block Law Protecting Disabled LSAT Examinees
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday left standing a Third District Court of Appeal ruling that allows the state to enforce a law barring the administrator of the Law School Admissions Test from notifying schools that an applicant received a disability accommodation.
The justices, at their weekly conference in San Francisco, voted 5-1 to deny review of Law School Admission Council, Inc. v. State of California (2014) 222 Cal. App. 4th 1265, in which the Court of Appeal overturned a preliminary injunction against enforcement of the law. Only Justice Marvin Baxter favored granting the petition.
Sacramento Superior Court Judge Raymond Caddei had granted the injunction to Law School Admission Council, Inc., preventing the state from enforcing Education Code §99161.5 pending a trial on the council’s constitutional challenges to the statute. The Court of Appeal issued a partial stay shortly after the injunction went into effect.
The law, which took effect in January of last year, requires the council to “provide testing accommodations to a test subject with a disability who makes a timely request to ensure that the [LSAT] accurately reflects the aptitude, achievement levels, or other factors that the test purports to measure and does not reflect the test subject’s disability.”
The section also requires LSAC to “give considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received by the test subject in similar testing situations when determining whether to grant an accommodation to the test subject” and prohibits the organization from either “notify[ing] a test score recipient that the score of any test subject was obtained by a subject who received an accommodation” or “withhold[ing] any information that would lead a test score recipient to deduce that a score was earned by a subject who received an accommodation.”
Caddei granted the injunction on the ground that the council was likely to prevail on its claim that the law deprives it of equal protection. He reasoned that it was irrational to distinguish between the council and other educational testing services.
But Justice Andrea Hoch, writing for the Court of Appeal, cited cases holding that the Legislature may regulate different professions in a different manner, even with respect to similar issues. The Ninth Circuit, for example, has upheld a regulation prohibiting dentists from having more than one office unless they divide their time equally between two offices, even though other healthcare professionals are not similarly restricted, Hoch noted.
She also agreed with the state that the council is distinguishable from other testing services because it engages in a practice known as “flagging,” meaning that schools to whom an applicant’s score is supplied are notified if the applicant has been granted a disability accommodation.
The panel also concluded that two of the other arguments raised by the council—that the law is a bill of attainder and a special law proscribed under the state Constitution—fail as a matter of law.
Balance of Harms
The council does have an arguable claim that the law violates its rights under the state Constitution’s “liberty of speech” clause, Hoch said. But the balance of harms still tips in favor of the state, so the injunction was an abuse of discretion, the justice said.
Citing legislative history, Hoch said the law is reasonably related to the Legislature’s legitimate desire to eliminate discrimination against the disabled with specific regard to law school admissions.
Turning to the balance-of-harms analysis, Hoch said the state had presented significant evidence that flagging causes serious injury to disabled applicants, and that those who take the test while the case is being litigated will suffer “tremendous irreparable harm” if the law is not enforced. This is a greater harm than any damage the council will suffer to its economic interests while it presses the speech claim, as to which its possibility of prevailing is “at best, an uncertain proposition,” the justice said.
In other conference action, the justices:
•Unanimously left standing a ruling of this district’s Div. Four in favor of Los Defensores, Inc., the Spanish-language attorney advertising collective. Los Defensores won a judgment for nearly $700,000 and an injunction prohibiting Westside attorney Donald C. Amamgbo and the firm of Amamgbo & Associates from using phone numbers with the distinctive string 636-3636.
Los Defensores, which said during the lawsuit that it had spent more than $120 million on broadcast ads since 1984, is well-known among Spanish-speakers for its many ads, often featuring legendary Dodgers broadcaster Jaime Jarrin. It owns the phone numbers 213-636-3636, 714-636-3636 and 1-800-636-3636.
In 2009, it sued Armando Vera and his then-wife, Rosa Gomez, for unfair competition and “passing off.” It alleged that the pair had deliberately obtained the number 636-3636 in other Southern California area codes—949, 626, 818, 310, and 661—and referred callers who believed they were calling Los Defensores to other attorneys.
In May 2010, the complaint was amended to add Amamgbo and his firm as Doe defendants. The plaintiff also sought to depose Vera and Gomez.
After unsuccessfully objecting and being ordered to pay sanctions, Vera explained that he first used the telephone numbers for a car rental business, which he opened in 2000. When he realized that many of the callers were looking for legal services, not rental cars, he got the “big idea” of making the numbers available to lawyers, he testified.
In 2007, he and his then-wife were being paid $10,000 for the use of the numbers by Les Sherman, a Marina del Rey lawyer who was subsequently convicted on tax and conspiracy charges and disbarred. While facing prosecution, Sherman sold the bulk of his law practice for about $300,000 to Amamgbo, who continued to employ Vera and Gomez for more than $12,000 per month.
After Los Defensores sued, Vera and Gomez transferred the accounts for the phone numbers to Amamgbo.
Judge Mary Ann Murphy granted a preliminary injunction and imposed terminating sanctions in November 2011. After the plaintiff submitted supplemental briefing and evidence, the judge awarded $691,280 in damages and permanently enjoined the defendants from using their 636-3636 numbers.
Justice Nora Manella, writing for the Court of Appeal, said the trial judge acted within her authority in granting injunctive relief, terminating sanctions, and damages.
The plaintiff, Manella wrote, established its entitlement to relief on its common law and statutory unfair competitions claim by showing that the defendants misappropriated the plaintiff’s trademark, rather than merely using their own telephone numbers to their advantage.
“[Los Defensores’] claim is predicated not on its ownership or control of phone numbers containing the pertinent numerical string, but on its right to prevent deceptive conduct aimed at consumers by exploiting the numerical string after it has acquired a secondary meaning,” the justice explained.
The case is Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377.
•Ordered supplemental briefing in Riverside County Sheriff’s Department v. Stiglitz¸ in which the court is considering the authority of an administrative hearing office to grant discovery of a police officer’s personnel file. The Fourth District’s Div. Two said Penal Code Sec. 832.7, which sets forth the procedure for obtaining such records, to the extent discoverable under Pitchess v. Superior Court (1974) 11 Cal.3d 531, is not limited to judicial proceedings.
The high court yesterday ordered counsel to brief the questions of whether there is, in an administrative proceeding where such discovery is sought, “any existing statutory mechanism that would allow the matter to be transferred to the superior court for an in camera review of the records by a judicial officer,” and if not, whether the high court has the authority to create such a mechanism. Both sides were given until April 29 to file briefs, and the court said parties wishing to file amicus briefs may file their applications and briefs by the same date, and that replies are due May 5.
•Unanimously denied review of the ruling of the First District’s Div. Two in Save the Plastic Bag Coalition v. City and Co. of San Francisco, 222 Cal. App. 4th 863, upholding San Francisco’s 2012 ordinance banning retailers from dispensing single-use plastic bags.
The plaintiff unsuccessfully contended that Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal. 4th 155, which allows cities to ban the bags without comprehensive environmental reviews, should be limited to smaller cities.
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