Larson & Gaston Picks Up Two Appellate Victories

by | Apr 26, 2020 | Announcements, Employment Litigation |

In April 2020, lawyers at Larson & Gaston received a pair of favorable decisions in cases pending before the California Court of Appeal and the Ninth Circuit Court of Appeals.

On April 7, 2020, the Court of Appeal of the State of California, Second Appellate District, issued an opinion Ducksworth v. Trimodal Distribution Services, Case No. B294872, affirming the ruling of the trial court which had granted summary judgment to staffing companies and their client on discrimination and sexual harassment claims (Gov. Code, § 12940) alleging failure to promote. The Court of Appeal affirmed, holding that the staffing companies could have no liability because they were entirely uninvolved with the promotion decisions, as shown by an undisputed fact in the separate statement. Admitting a declaration that stated promotion dates without foundational facts for the business records hearsay exception (Evid. Code, § 1271) was not an abuse of discretion because the trial court reasonably accepted the declarant’s assertion of personal knowledge of the facts. Because the statute of limitations (Gov. Code, § 12960, former subd. (d)) ran from the denial of promotion, not from a later date when another worker’s promotion took effect, the claims were untimely and summary judgment was correctly granted on that ground.

Gloria Medel led the L&G defense team at the trial and appellate court levels.

On April 24, 2020, in Luna v. Hansen & Adkins Auto Transport, No. 18-55804, the Ninth Circuit Court of Appeals affirmed the district court’s summary judgment in favor of the defendant. The panel held that an employer does not violate the Fair Credit Reporting Act by providing a FCRA disclosure simultaneously with other employment materials, and by failing to place a FCRA authorization on a standalone document.

The panel held that 15 U.S.C. § 1681b(b)(2)(A)(i), forbidding procurement of a consumer report for employment purposes unless “a clear and conspicuous disclosure has been made in writing to the consumer . . . in a document that consists solely of the disclosure,” does not prohibit the presentation of the disclosure together with other application materials. The panel held that the co-presentation of the disclosure and an authorization did not render the disclosure neither clear nor conspicuous. Further, the FCRA requires only that a consumer authorization be “in writing,” not that it be put in a clear and conspicuous, standalone document.

Victor Cosentino led the L&G defense team at the district and appellate court levels.


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