Thursday, January 14, 2016
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Supreme Court Declines to Review Revival of Nicolette Sheridan ‘Whistleblower’ Suit
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday declined to review a ruling that revived part of actress Nicolette Sheridan’s suit against Touchstone Pictures and Desperate Housewives creator Marc Cherry.
The justices, at their weekly conference in San Francisco, unanimously denied the defendants’ petition for review in Sheridan v. Touchstone Television Productions, LLC (2015) 241 Cal. App. 4th 508.
Sheridan starred in Desperate Housewives, a Touchstone/ABC series, from 2004 through 2008, but her contract was not renewed for 2009. She then sued for sexual harassment, wrongful termination and battery, claiming that she was fired because she complained to Touchstone executives about having been struck by Cherry, who was an executive producer as well as the show’s creator, during a 2008 rehearsal.
The sexual harassment claim was thrown out before trial, and the battery claim tossed on a directed verdict. Cherry, according to news accounts, testified that the alleged battery was actually a tap to the head with his fingers, part of a demonstration as to how to play a scene.
The decision to kill off Sheridan’s character and not renew her contract, he said, had been made months earlier. The real reasons for that decision, he said, were the studio’s desire to reduce the costs of the show, Sheridan’s habitual lateness and inability to get along with her co-stars, and the fact that her character had simply “run its course.”
The jury deadlocked 8-4 on the wrongful termination claim, one shy of a verdict in Sheridan’s favor. The claim was not retried, however, as the appellate court threw it out, in Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th 676, on the ground that refusal to renew a fixed-term employment contract is not wrongful termination.
The justices said at the time, however, that Sheridan could amend her complaint to allege a violation of §6310. The statute creates a damages remedy in favor of an employee who is discriminated against for making an “oral or written complaint” to the employer regarding “unsafe working conditions or work practices.”
Touchstone then demurred to the amended complaint on the ground Sheridan did not exhaust administration remedies by filing a claim with the Labor Commissioner under §98.7 and §6312.
The former section, which applies to Labor Code violations generally, and the latter, which applies to retaliation claims specifically, both authorize the commissioner to grant a monetary remedy in an administrative proceeding.
Los Angeles Superior Court Judge Michael Stern overruled the demurrer, finding that exhaustion of such remedies is not a prerequisite to filing suit, and Touchstone sought mandamus relief.
While the petition was pending, a Third District panel ruled that exhaustion was a prerequisite. On Touchstone’s renewed demurrer, Stern ruled that he was bound by that decision and threw out the claim.
A month later, however, the Supreme Court ordered the Third District opinion depublished. In the meantime, the Legislature amended the statutes, effective Jan. 1, 2014, expressly stating that exhaustion was not required.
Sheridan then filed a motion to set aside Stern’s prior ruling and reinstate her claim, which the judge initially denied, but later purported to grant. The Court of Appeal, however, granted an alternative writ of mandate, and Stern then reversed himself again, concluding he lacked jurisdiction to reconsider the dismissal of the claim.
Sheridan timely appealed that dismissal, however, and Justice Thomas Willhite said that her position was correct—the 2013 amendments were declarative of, and did not change, prior law, the plain language of which did not require exhaustion.
The former and current versions of both statutes all say the employee “may” file an administrative claim, the justice noted, whereas cases cited by Touchstone dealt with language stating that an employee “shall file” or must “resort initially” to administrative remedies before seeking judicial relief under other applicable statutes.
In other conference action, the justices let stand a Court of Appeal ruling allowing a sheriff’s deputy to be fired for misconduct while on leave.
This district’s Div. Two cited Los Angeles County’s civil service ordinance and rules in upholding the termination of Deputy Sheriff Thomas Negron, and no justice of the state high court voted to grant the deputy’s petition for review of Negron v. Los Angeles County Civil Service Commission (2015) 240 Cal. App. 4th 874.
The commission upheld a hearing officer’s findings that Negron violated department regulations by driving while intoxicated and with an expired registration, being uncooperative with California Highway Patrol officers following the stop, subsequently driving with a suspended license, and falsely telling a supervisor that it was his girlfriend, not him, who drove his car off a department lot while his driver’s license was under suspension.
At the time of those incidents, Negron—an eight-year veteran of the department—was on unpaid leave. He had previously been on a paid medical leave based on anxiety problems, but the department had determined, about two months before the drunk-driving arrest, that Negron—who was embroiled in a contentious divorce at the time—had medical issues that were not work-related.
Then-Los Angeles Superior Court Judge Luis Lavin, since elevated to the Court of Appeal, granted the deputy’s petition for writ of mandate, holding that under Garvin v. Chambers (1924) 195 Cal. 212, a law enforcement officer cannot be disciplined for misconduct that occurred while on unpaid relieved-of-duty status.
But Justice Victoria Chavez, writing for the Court of Appeal, said the county had the authority to fire Negron, and that Garvin was distinguishable.
That case involved an Oakland officer who had been suspended without pay while under investigation for violation of the National Prohibition Act. While appealing the suspension, he was asked to appear for a meeting with the chief of police.
When Garvin appeared at the chief’s office with his lawyer, the chief asked to meet with him without counsel present. When Garvin refused, he was fired for insubordination.
The charge that he violated the Prohibition Act was subsequently dismissed. The state Supreme Court ruled that he could not be fired for insubordination because “while the order of indefinite suspension was in force Garvin’s status as a policeman was suspended to the extent that he could not be called upon to do police duty nor be held amenable for a failure to do such duty.”
Negron’s case was very different, Chavez wrote, because he wasn’t fired for insubordination, but for Vehicle Code violations and other misconduct, including lying—“conduct for which he could be held accountable even when relieved of his duties as a deputy sheriff.”
That misconduct “reflected adversely upon and was a discredit to the Department,” Chavez said, noting that at the time of his arrest, Negron’s sheriff’s deputy uniform was plainly visible in the back seat of his car. The vehicle registration for Negron’s car indicated the owner was a deputy sheriff.
“Unlike Garvin, in which the dismissed officer’s refusal to serve as a witness against himself could not constitute insubordination in violation of departmental rules, Negron’s conduct comes squarely within the prohibitions imposed by the Department’s Manual of Policies and Procedures,” the justice wrote.
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