Northern California Daily Digest

Several judges in the Northern District of California have recently released orders, among them:

Elder v. Green is an adversarial hearing within the Sand Hill Capital Partners III, LLC bankruptcy.  The complaint alleges that the debtor operated a Ponzi Scheme from 2003 until its petition on June 5, 2008.  Judge Thomas E. Carlson explained that under California's Uniform Fraudulent Transfer Act (UFTA) a Ponzi Scheme allegation requires:

(1) an actual intent to defraud (3439.04(a)(1)), and (2) that the Ponzi scheme operator was engaged or about to engage in a transaction for which the remaining assets of Debtor were unreasonably small in relation to the transaction. (3439.04(a)(2)).

Here, the plaintiffs alleged this is what occurred and the complaint survived a motion to dismiss.

Hines v. California Public Utility Commission is, at its core, a routine employment retaliation action coupled with allegations of Sarbanes-Oxley and antitrust violations.  Magistrate Edward M. Chen dismissed the non-Title VII stuff with prejudice by explaining the legal impossibility of the claims under the Eleventh Amendment.  The Title VII claim received a little more discussion.

In 2002, Ms. Hines began to work for the PUC where she continues to work to this day.  She filed a retaliation based race discrimination lawsuit in 2007. Some two years later, between July and December 2009, the CPUC took several adverse employment actions against Ms. Hines. First, on July 27, 2009, the CPUC issued a Corrective Action Memorandum. Second, on September 8, 2009, the CPUC issued a Notice of Adverse Action. Finally, on December 3, 2009, the CPUC issued a second Notice of Adverse Action, which resulted in a week of suspension without pay. Ms. Hinds complains that these actions were in retaliation for her having filed the 2007 lawsuit.

Judge Chen noted that determining the permissible time between a protected action and an adverse action for the purpose of determining whether it is retaliatory is a bit of a moving target.

See Richmond v. ONEOK, Inc., (10th Cir. 1997) (3-month period insufficient), and Hughes v. Derwinski, (7th Cir. 1992) (4-month period insufficient).

He found the two year gap was too great and dismissed the complaint with leave to amend.

Warren v. Reid is an equally odd civil rights case.  Mr. Warren is suing the Alameda Alliance for Health and its attorney Felicia Reid for perjuring themselves in obtaining a restraining order against him.

Mr. Warren is in the AAH health plan and entered into a dispute with AAH over the kind of electronic scooter he would be given due to his morbid obesity.  In 2005 he left hundreds of voicemail messages for AAH staff laced with profanity and threats of violence.  In October 2005, AAH sought restraining order against Mr. Warren under the workplace and civil harassment statutes.  His harassment continued through October 2008 which lead Ms. Reid to pursue a new restraining order.  Mr. Warren claims he was never served with the second order leading to the current lawsuit.

Judge Saundra Brown Armstrong explained that the Noerr-Pennington doctrine bars the suit.  The defendants have absolute immunity under the First Amendment's address of grievances clause to petition the government for non-frivolous relief as occurred in this case.  She dismissed the case with prejudice.

Kemp v. IBM is another employment matter.  Here, Mr. Kemp argues that he should have received compensation under IBM's Incentive Plan.  Mr. Kemp claims he should receive an accounting from IBM under the California Labor Code which he may enforce under the Private Attorney General Act (PAGA).  IBM points out that Mr. Kemp has not alleged he exhausted his administrative remedies by first informing the Labor and Workforce Development Agency of his grievance.  Alternately, IBM explained that the incentive plan is not a contract and that Mr. Kemp cannot claim any damages for breach.  Judge Marilyn Hall Patel agreed with IBM and dismissed Mr. Kemp's claims with leave to amend.