Recent notable developments include:
“Boomer” Age Discount Survives: A California Court of Appeal finds that a local theater’s “Boomer Night” promotion, which offered half-price tickets to individuals born between 1946 and 1964, “does not involve an arbitrary class-based generalization” which would be forbidden by California’s Unruh Act, the source of much state civil rights law in California. The law prohibits businesses in California from engaging in unreasonable, arbitrary or invidious discrimination based on sex, race, religion, ancestry, disability, medical condition, marital status, or sexual orientation among other categories, but does not expressly forbid age-based distinctions against customers (unlike employees), such as senior discounts, unless they operate as “an arbitrary class-based generalization”. In this case, the court found that the “Boomer Night” promotional discount did not violate state law, and hence could not be the basis for an unfair practices (Section 17200) representative action. (Pizarro v. Lamb’s Players Theater, California Court of Appeal No. D045890, January 24, 2006)
Blind-Unabled Website Sued: The National Federation of the Blind and related parties filed suit this week in Alameda County, California Superior Court claiming that the target.com consumer website for Target Stores violates the Unruh Act ban on a business establishment which denies disabled persons “full and equal accommodations, advantages, facilities, privileges, or services”. The claim is that the target.com website is not affirmatively enabled with available screen-reading software and website design features. The suit claims that the lack of these available features for website navigation and usage, instead of mouse-only operation including for product purchases, also violates the California Disabled Persons Act based on essentially the same claims, that blind persons are effectively denied full and equal access to services available from target.com, which is claimed to be a “public place” as an extension of physical Target store locations in California. The suit also claims that the lack of blind-enabling features on the website violates the federal Americans with Disabilities Act (ADA). At least one previous case in California state court, claiming that consumer website services must be enabled for the blind, has been dismissed at the trial court level, but no authoritative California appellate decisions have yet developed. (National Federation of the Blind v. Target Corporation, Alameda County Superior Court No. RC06254127, filed February 7, 2006)
Late Fee in Consumer Contracts Validated: A standard $4.75 late fee provision in cable television customer contracts has been upheld by a California Court of Appeal, which found that the $4.75 late fee is a valid liquidated damages amount under California law. The Court found that the fee, conceded by the parties to be reasonable in amount, was valid under California liquidated damages law as representing “a reasonable endeavor by the parties to estimate fair compensation for the loss sustained”, rather than an invalid penalty clause, even though the late fee amount was uniformly specified in the cable service provider’s consumer contracts, rather than individually negotiated with customers. Going beyond the literal language of the requirement that liquidated damages result from a reasonable estimation “by the parties”, the Court instead finds that in “the context of mass consumer transactions involving standardized form contracts, [penalty avoidance] standards are not necessarily undermined by non-negotiated liquidated damages provisions” if the actual amount of the late fee is reasonable under the circumstances. (Utility Consumers’ Action Network, Inc. v. ATT-B of Southern California, Inc., California Court of Appeal No. B179348, January 20, 2006)
Legislative Fix for Jury Waiver Clauses? The California Supreme Court’s Grafton Partners decision last summer held that pre-dispute contractual waivers of trial by jury are unenforceable in California state court because they are not authorized by the California civil procedure statutes governing jury trials, under the state constitutional protection of jury trial rights (reported in our Memo of August, 2005). Accordingly, the Supreme Court found that a contractual jury trial waiver clause is unenforceable, even in a commercial contract between sophisticated business parties. Georgia appears to be the only other state which restricts the ability of business parties to enter jury trial waiver clauses in commercial contracts. The business law section of the State Bar of California is now recommending that the state legislature adopt a statutory amendment to partially fix the Grafton ban on jury trial waiver clauses, although the proposed amendment would apply only to jury trial waivers in non-consumer transactions. (Business Law Section Legislative Proposal, January, 2006)
Digital Television Cutover February 17, 2009: The “Digital Television Transition and Public Safety” law, included as Title III of the Federal Deficit Reduction Act of 2005 [sic], was signed into law yesterday by President Bush to resolve a major portion of the federal transition program for digital television broadcasting. The Act provides that all full-power television broadcast stations must cease traditional analog television signal broadcasts by February 17, 2009, and have their analog broadcasting licenses terminated by the FCC, in favor of full cutover to digital television (DTV) broadcasting. On its face, the new law leaves little leeway for the FCC to extend the DTV cutover date beyond February 17, 2009. The law also provides for the clearing of broadcast channels 52 through 69, and for a federally funded program to provide each requesting U.S. household with up to two coupons for a $40 discount on purchase of a minimal converter box, whose only function is to allow old-style analog televisions to show broadcast digital TV stations.
No Right to Permanent, Light-Duty Job: A California Court of Appeal has held that under state law, an employer which temporarily provides a light-duty job assignment to accommodate a temporarily disabled employee, has no duty to convert the temporary light-duty position into a permanent one when doing so would, in effect, create a new position. The decision is consistent with California law requiring employers to provide reasonable accommodation for a disabled employee, but with no affirmative duty to create a new job position to accommodate a disabled employee. The decision is also consistent with those of several federal circuit Courts of Appeal under parallel provisions of the federal Americans with Disabilities Act (ADA). (Raine v. City of Burbank, California Court of Appeal No. B180615, January 25, 2006)
“Preparing Your Lobbying Plan” by Debra Stein, President, GCA Strategies: Debra Stein, President of government and community affairs at GCA Strategies in San Francisco, recently shared the attached article on “Preparing Your Lobbying Plan” as published in Land Development Magazine, the text of which article is attached courtesy of the author. Ms. Stein, an attorney and long-time strategist and representative for private parties in local community lobbying on projects throughout California and nationally, is also the author of the book “Winning Community Support for Land Use Projects”, published by the Urban Land Institute.