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Kyle O’Malley Attorney Who Won the Raines Supreme Court Employee-Screening Case

Kyle O’Malley, the Attorney Who Won the Raines’ Supreme Court Employee-Screening Case

Tim Kowal     February 6, 2024

Just a few years out of law school, Kyle O’Malley won a landmark case in the Supreme Court of California. The employer’s screening service in *Raines v. US Healthworks Medical Group*, 15 Cal.5th 268 (2023) used a generic questionnaire asking about menstrual cycles, hemorrhoids, hair loss, and all sorts of fool questions not tailored to the specific job (or to any job, for that matter). Even though the agent was not the “employer,” the Court held that business agents performing employment-related tasks for other companies can be held liable for discrimination under California’s Fair Employment and Housing Act (“FEHA”). The decision has been described as a “landmark” victory for workers, with the California Supreme Court listing it as one of four “high profile cases” decided in 2023.

We also talk with appellate legend Randy Erlewine. All California litigators owe him a debt for the “get out of jail free” card case of Carter v. Superior Court (1990) 218 Cal.App.3d 994, allowing a deposition to get documents if you missed the deadline to move to compel on written requests. We discuss developing a cutting-edge practice and building a firm to a vision.

Kyle O’Malley’s biography and LinkedIn profile.

Randy Erlewine’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:


Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone.

Jeff Lewis  0:17 

I am Jeff Lewis.

Tim Kowal  0:18 
And I'm Tim Kowal both Jeff and I are certified appellate specialists and as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you find this podcast helpful, please recommend it to a colleague. Yeah, if unhelpful

Jeff Lewis  0:32 
send it to your opposing counsel. Before we jump into this week's discussion, we want to thank casetext for sponsoring the podcast  casetext is a legal technology company that has developed AI backed tools to help lawyers practice more efficiently since 2013. Casetext relied on by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments. In March 2023. Casetext's launched co counsel, the world's first AI legal assistant, co counsel produces results lawyers can rely on for our professional use, all while maintaining security and privacy. Our listeners enjoy special discount on case text basic research at casetext.com/calp. That's casetext.com/calp.

Tim Kowal  1:11 
All right, Jeff. Well, today we thought we would make ourselves feel under accomplished today by inviting someone who's much younger and much more accomplished than both of us to the show Kyle O'Malley and then also the partner at his firm Randy Earl wine. Kyle graduated from UVA Law School where he was honored with the Earl Shaw labor relations award. Kyle returned to his home state of California and joined the firm's trial and appellate practice and focuses on employment and consumer law. We're also going to talk about his his trip to the Supreme Court as his victorious support to the trip to the California Supreme Court last year on a on a groundbreaking in employment law case. And Randy Earl wine is partner and co founder of the firm he handles trial and appellate litigation, he has over 40 years of experience representing clients in federal and state court and arbitration principally in employment class action, commercial personal injury and insurance litigation, Randy and Kyle, welcome to the podcast. Thanks for joining us.

Randy Erlewine  2:09  
Thanks for having thanks for having us.

Tim Kowal  2:12  
Now, let's let's start off by first if you would tell us a little bit more about your firm. You both do a lot of appeals and employment litigation work tell us is that what the firm specializes in? What what is your mission at the firm? Phillips Irwin given and Carlin?

Randy Erlewine  2:29 
Well, so one of those persons, it's been, as you say, 40 years plus, and thank you for for that. I've been with the firm now for 40 years plus, this has basically been the same firm, we're we now have believed nine attorneys, and two of the attorneys here focus, you know, principally in the appellate area, including Kyle and our my partner, Brian Tomlin, we've had a somewhat eclectic practice over the years, historically, we've been doing a lot of employment related matters, and also representing both defense and plaintiffs today, we're more plaintiffs oriented. And we've had a fair amount of our practices been entertainment law as well.

Tim Kowal  3:14  
And what about you, Kyle, what brought you to the firm and what drives you and your practice? Tell us a little bit more about your practice and what you're about? Sure. So

Kyle O'Malley  3:21  
you know, I'll start with the, the firm, I joined straight out of law school, and, you know, was looking for a practice that aligned frankly, with my, with my values, and the kind of cases that I wanted to take on, and, you know, leaving law school and sort of having, having some options about where to go, I thought, you know, I think I'd rather go somewhere small and get my hands dirty right away. And I had spent a couple of years between undergrad and law school, working at the firm as a paralegal and legal assistant. And, you know, when I was interviewing, I spoke with the managing partner, and he said, you know, come come work for us. We'd love to have you. And I'm, I'm really glad I made that decision. I feel like I have been really thrown into the deep end really quickly. And I think that's, you know, oftentimes the best kind of experience.

Tim Kowal  4:22  
Yeah, well, one of the advantages of joining a big firm is that you, maybe you'll get an opportunity to do Supreme Court cases, but but when you joined Philips or a wine, you had to wait, what a whole year before you got two Supreme Court cases.

Kyle O'Malley  4:37  
Yeah, pretty much. I mean, I think right after passing the bar in 2019 2020, we, I was thrown right onto this into this case, the rains case, which at that time was in the Southern District of California. Now we're back there, but so yeah, it was it was interesting because we were you know, we had a 12 B six motion and you know, basically one of the first assignments I ever had was briefing, you know, the opposition to that motion, and then dealing with the appeal of the ninth circuit where you briefing it. And then again at the Supreme Court, within a pretty short timeframe was quite a crash course I like to joke we were at every court except for the state court of appeal and the US Supreme Court, because originally the case was filed in San Diego superior. So well,

Tim Kowal  5:26  
back in when you were in law school, obviously, you had an interest in employment law. And you mentioned that you wanted to find a firm, you wanted to find a practice that aligned with your values, what were your values? What was your path that led you to the law into employment law, in particular? Oh,

Kyle O'Malley  5:42  
man. So, I mean, I've always been politically involved, and, you know, interested in, you know, public policy and politics and the law. And I grew up in Bakersfield, which was, frankly, not a super politically hospitable environment for me. And, you know, I knew that I wanted to do something to, you know, to help my fellow man and my fellow woman out, but I wasn't, I wasn't sure whether that would be like medicine or law. And, you know, I got involved in extracurriculars young and met attorneys, I didn't personally know any attorneys or have any no relation to any. And I think, you know, being surrounded by mentors who were practicing in pretty diverse areas, you know, set me up for that, you know, it was it was fairly easy to start making those choices once I had, you know, mentorship and guidance in place. Randy,

Tim Kowal  6:41  
tell us a little bit about about the firm's appellate and employment practice, are those do those predominate? The practice and what, what are the values that have that have led your practice and the development of the firm Phil Phillips are a wine into being firm that that took Kyle to the Supreme Court in two different cases last year?

Randy Erlewine  7:00  
Well, I like to say it goes through a lot of hard work along the way. And, you know, attention to detail and strategy issues. Perm was started by two Harvard Law graduates many years ago. And you know, the strength of the firm at all times, it's been, you know, quote, high quality work and a small, firm environment, you know, going against the big firms, and historically, we've done pretty well. And in our engagements, along the way, you can see the transformation of the law, when I got started, a lot of it was insurance, bad faith in terms of, you know, the focus areas, the law, and then the underwriters got smarter, and started to insert attorneys into the equation and claims handling. So those those cases, you know, started to fade. And then you got into the baker, McKenzie harassment, action, you know, many years ago, that led to a big, you know, verdict against Baker McKenzie. And then the employers got smarter on harassment. And then you had the Faragher Ehlert decisions at the US Supreme Court. So that's sort of tamped down that area, and then it's gone, sort of morphed over to discrimination, retaliation, and then also wage an hour. And we're now seeing that play out. So it's, you know, the thing I like about our practice is, we're sort of on the cutting edge of things. And, you know, I've been in practice, you know, a number of years, and a lot of my contemporaries have retired already, but I really liked the challenge. But we're the how the law continues to evolve. And this year, we've had two cases before the Cal Supreme Court. So for us, you know, it's about making the law and, you know, making, you know, making a difference in the in the legal profession, quite frankly,

Tim Kowal  8:43  
you said that, that you're, you're on the cutting edge of a lot of these issues. How do you get on the cutting edge? And I suppose it's easier to stay on the cutting edge once you get there. But is it just the right is it just luck of the draw the right clients are finding you the right cases are falling into your lap? Are you doing something, you know, following your values? Or is there some action plan if another attorney or another law firm is looking to follow their values and do meaningful work like you are in your firm? How do you do that? How do you get out of that cutting edge doing meaningful work?

Randy Erlewine  9:10 
Well, a lot of times historically, and this is sort of the way small firms and class action firms go, it's when you're new new to the game, that is your you, you basically pair up with a bigger firm, and you go to them and then when you've got the experience, people come to you and so we get lawyers that you know, because of our our you know, we've become a name and the the industry will come to us with cases. And we can look at those. And we also even you know as far as we're looking to make a difference. Can we make law in the fact that a question may be unresolved to a lot of people, it means that it's not cookie cutter so they don't want to get involved because they know it's extra work for us. That's really something we look forward to we do look for those cases.

Kyle O'Malley  9:56  
I would just add I think you know, the management at the firm, Randy definitely Randy included, encourage the entire staff and all the associates to to be well read to be logged in to current events to be following developments in technology to be following along in a way that they encouraged us to basically identify, you know, interesting cases or to come up with theories or for claims. And, and we, you know, we we kick the tires, we we discussed that internally, we we have a very collaborative environment in terms of, you know, which cases to pursue. And so I think there's a there's a degree of like, it's almost an academic exercise. I mean, we read widely, and we think, you know, hard and long about how events that we see in the world can be translated into, into claims. And like Randy said, Mark, we're just not afraid to to press an unresolved issue or a difficult issue. It

Tim Kowal  11:04  
was interesting what you said about, it's important to be to be well read and plugged into current events, what's going on? I assume you don't mean just being like an like a Twitter troll or something like that? What do you say, following current events? But how do you parlay keeping up with current events into getting onto the cutting edge attracting the right kind of clients? Is it about just getting out there and kind of sounding off about your theories about what the law says, and we're, you know, whether it's right or wrong, where it should be?

Kyle O'Malley  11:29 
Well, I think there's some of that, I mean, we, you know, we publish articles about gaps in the law, we try to participate in or, or, or lead CLE, if we can on interesting issues. And, you know, it's Randy, do you have thoughts about that?

Randy Erlewine  11:47  
Well, I think we do. Look, we do look for those cases. And we, you know, it's, it's, you know, you're networking again, that, that you're you're going to conferences, you're talking to people and, you know, gathering ideas, for example, in the range case, and I know, we'll get to that, in terms of the implications, the range case, we've already had another case, we have another case pending, where the rains issue has come up in the Lebanon 2.5 context for retaliation statute that has similar language. So you know, it just, it's fun, it spawns, you know, different elements, and we pursue those.

Tim Kowal  12:22  
Yeah, well, let's get right into rain. So the case is reigns versus us HealthWorks. Medical Group, it was published that the opinion came out of the Supreme Court last August and 2023. And and Kyle, maybe you can, you can take us through this case. This was it sounds like it was kind of a a technical legal issue about whether whether employers can use agencies to do their their employment screening, and maybe get around some of the things that they that the employers can't do directly by hiring an agency to do it for them and asking a lot of full questions of applicants. But take us through some of the basic facts of the reigns case and what the issue was and and how it got up to the Supreme Court.

Kyle O'Malley  13:05 
Sure. So I'll I'll do this from the plaintiffs the named plaintiffs perspective, I think that narrative helps. So our our client or one of the named plaintiffs, Christina Raines was offered a job to work at a essentially a retirement community in San Diego and her job offer was conditioned as many are on her completing a pre employment medical examination, which we call a PICO or an exam. And under California law, an employer is allowed under the fee ha to require that exam provided at that post offer free work stage provided that the exam is job related and consistent with business necessity. So are what

Tim Kowal  13:57  
are what are some examples of jobs that where it would be reasonable, a reasonable requirement to subject new employees to or new hires to this condition of completing a medical examination?

Kyle O'Malley  14:08 
There are all kinds of jobs where an employer might want to do that there are you know, jobs in in hospitals, for example, or UPS, right, you need to be able to lift a certain number of pounds as a part of your job. Okay. The employer can ask you medical can can require medical exam and can make medical inquiries provided that those inquiries are essentially tailored to the job in question. So the clinician who examines the the applicant should know what the job description is and only ask questions about their medical history, for example, that's necessary to that job to determining whether that applicant is presently able to do that job, the essential functions of the job. So our client attended the examination and was provided with a form that, I mean, depends on how you count, but we count about 150 questions on it. Everything from, you know, having Have you had or do you commonly have any of the following conditions, venereal disease, vaginal leakage, penile discharge prostate, oh, my god abilities list every over the counter medication that you've taken. Have you ever had a fever? I mean, stuff that seems really kind of innocuous and stuff that seems really invasive, and unrelated to the job

Tim Kowal  15:32 
and things that I mean, I can't imagine the relevance of many of those. A couple of the other ones that stuck out to me is is, you know, just defies imagination of how it could be relevant to anything. Have you suffered hair loss, you have hemorrhoids? I mean, in what what kind of job? Would those factors be relevant?

Kyle O'Malley  15:51
That was I mean, essentially our reaction, right. And our clients, too, she, in fact, did not answer a question requiring that she disclose the date of her last menstrual period. She said, Why? Why do I need to do that? How is that relevant, refused to do it, and her exam was canceled, and she was not passed by the agent, US health works. And so she saw her job offer was revoked. Our view in the world is that many of the questions on that particular questionnaire which was used in every exam, no matter what job, and it wasn't tailored to any job, but many of those questions are not relevant for any job. And so we brought a claim under under fee, which has a specific provision prohibiting these kinds of inquiries. And we also alleged claims under the Unruh Civil Rights Act, for intrusion upon seclusion, and we had a UCL claim as well. So that's kind of how the case started. We filed in our CO counsel filed it in San Diego Superior Court, it was removed, after we amended the complaint to assert class allegations, it was removed to the federal district court in the Southern District. And then we got a 12 V motion, which we we litigated, we amended our complaint.

Tim Kowal  17:11  
Let me ask if I could go back to the to the removal, is that a is that a common tactic by by defendants? So they think that their defendants usually think they're gonna get a better, better treatment in federal court on these kinds of claims that in state court?

Randy Erlewine  17:25  
Yeah, I can probably address that. The answer is yes. Most defendants on the employer side would prefer to be in federal court. Couple reasons. It's got a unanimous jury requirement, which they view is perhaps tamping down, you know, any verdict that might come in the amount or leading to leading to a hung jury on a civil and also then a lot of plaintiff practitioners are not as well versed in federal courts. So the defense that is typically a bigger firm has more experience in federal court. Also here, would they remove this under CAFA, which requires that there be you know, I believe $5 million in issue and at least 100 class members so that they can remove to federal court. And but the answer your question is, yes, most employers would prefer to be in federal court if they can get there. Okay.

Kyle O'Malley  18:14 
I think that's particularly true when the when the substantive claims are state law claims that are sort of tricky or unresolved. Like these were.

Tim Kowal  18:25 
Yeah. So you got up into so you now you're in federal court, there's a there's a motion for summary judgment. So that's, that's where I interrupted you.

Kyle O'Malley  18:32 
Oh, yeah. So we had a we had a motion to dismiss. And we, we eventually, I mean, we eventually lost. And

Tim Kowal  18:39  
based on the fact that that US health works, the defendant is not the employer, they're merely an agent of the employer. Right text. That's

Randy Erlewine  18:47  
true. And to go back on the history of this in, I believe, around 2000. The Supreme Court weighed in on on this sort of in this area in the Reno v. Baird case, which dealt with the question of whether an individual supervisor could be held liable for discrimination. And the force the statute, the way it's worded, says an employer includes an agent, and the argument was a supervisor is an agent, therefore they should be held liable. And essentially, the Cal Supreme Court back then held that no, we can't, we can't hold an individual supervisor liable because of the incongruence. At that fee ha requires at least five, five employees, an entity with five employers to be considered an employer for fi high liability, and it would be completely in congruence to hold an individual supervisor liable. And also that the decision making its collective decision making as compared to harassment that talks about any person, so it could be an individual supervisor could be held liable, that that language is not in the discrimination part of VR, and that it would, that the it would also so there's collective decision making that would end up in a You know, an employment related decision, whether it be hiring or most typically termination. And also the the employees, the employees, supervisors, they would face potentially financial ruin if they were sued for, you know, discrimination and held liable. And therefore they may not be be attending to do their job to the utmost for fear of being imposed liability on them. So there were a variety of factors that led the Supreme Court and Reno Baird, to find individual supervisors not liable as agents in the context. Fast forward 25 years later, the district court judge sabraw in in handling our case, found that that Brino be very one of the day as far as he was concerned, and finding that it also applied to business agent, business agents, as well as individual supervisory employees. And we argued otherwise. And that's the issue then became went to the ninth circuit and only to the Cal Supreme Court for resolution.

Tim Kowal  21:06  
Okay, so at some point it was it was up on the ninth circuit after after your case was dismissed. At what point does the Ninth Circuit decided this, this issue needs to be certified, certified to the Supreme Court.

Kyle O'Malley  21:18 
So we we asked them to certify the question to the Supreme Court. We we actually asked them to certify three questions, one for one the feet are questioned that they certified ultimately, the Unruh Act question which was sort of an alternative claim. Look, if they're not agents of an employer, and they don't qualify as an employer, then they qualify as a business entity giving services to patrons and their conduct is discriminatory under the Unruh Act, and then we brought the intrusion claim. So we asked the ninth circuit to certify all of all of those questions. And, you know, they didn't they weren't interested in the Unruh Act or the intrusion claim. But yeah, we asked, and they gave us what we wanted.

Tim Kowal  22:05 
Okay. And then obviously, the Supreme Court believed that the precedent was was unclear on this point. And in your view was, was it a close call, whether the whether an agent of an employer was subject to to fee high liability and Unruh Act liability for for these, you know, what otherwise would be violations if the employer was was conducting it?

Randy Erlewine  22:30  
Well, from our standpoint, the Reno bear decision expressly left open the question about whether there might be agent liability for employees that for non employee supervisors. And so this presented the case for the Cal Supreme Court to revisit to basically to answer that question that Reno v. v. Baird had left open and on the business agents, and it from from the planet standpoint, it's night and day talking about the individual supervisor, and, you know, coming to work every day and trying to do their job as opposed to a business agent being hired by this by the employer to come in and basically carry out fi hot regulated actions. And as the Supreme Court and reigns held, that it's entirely night and day, you've got the the these business agents have the ability to contract and bargain for bargain with the employer over liability, they oftentimes come in with great greater expertise than the employer as that's why they bring in these third party agents. For example, here, the medical screening, they used to be that employers had in house these were the good old days, if you've talked about my 40 years ago, maybe this is where it comes in. The Good Old Days is, you know, employers had in house doctors that would perform these tests. Now they outsource to these, you know, these fairly large entities and hear us health works at the time had said 78 facilities in California, and they were believed the first or second largest occupational health provider in the country. So they had the expertise much more than any particular individual employer. And they should know the law. And but they decided instead of tailoring the questions to the job as required under the California law, they decided to just use an omnibus form that you would, your doctor would normally use your personal doctor would use to decide how you're doing that had nothing to do with a job and to to apply that in in conducting these pre placement exams. And here, our class at the time, which four years was about 800,000 tests were conducted by this one, one entity, US Healthworks within the span of four years involving well over a half million job applicants. So it wasn't just a minor issue. This is an employer. This is a third party agent that has the expertise. They they cover over industries. It's not just one industry, they cover a number of industries here and provide their services they have. So there are a variety of reasons why the Cal Supreme Court we felt would be amenable to holding the business agents are fundamentally different than individual supervisors and should be held liable.

Tim Kowal  25:25  
And you had mentioned I think that answers my question. My next question was going to be why not just sue the employer directly? And I suppose what was the employer sued directly? As well as as us? HealthWorks?

Randy Erlewine  25:38  
Yes, the employer was but really on a wrongful termination theory. So we brought in another planet who, you know, was just going our theory is not that they were terminated, but that they were they were asked these inappropriate questions. Yeah.

Tim Kowal  25:53  
And is the liability of the agent here the US health health works? Is it is a derivative of and limited to the same liability that could have been assessed against the the principal, the the employer itself, or is it? Is it separate liability? We share one on the same? They're an agent. Okay. So So presumably, it will be up to us health works, whether it wants to file an action and contribution against the employer for any damages that are assessed against us health works? Because it was it was acting, you know, under at the behest of, of its principal? Well,

Randy Erlewine  26:27 
I think US health workers would have difficulty here because they're the ones that develop the form. And even though employers had the right to determine which tests would occur that is, if for example, a tuberculosis test or a blood test or a drug screening test, or a physical lifting tests, US health works, regardless of what tests the employer wanted, USL torch mandated that in every exam, they had the they use one questionnaire developed by us outworks. And it had to be filled out by the employer by the applicant. And if they didn't completely fill it out, they wouldn't get passed.

Jeff Lewis  27:05  
Yeah, one size fits all. Hey, did you folks have any amicus briefs filed when you were in the California Supreme Court that helped move the needle one way or another, or the amicus briefs? Kind of noise in the background?

Kyle O'Malley  27:17 
I think absolutely. It's interesting, because we had to, we had two amicus briefs, one Legal Aid at work and a bunch of other organizations, principally working in this sort of employment workers rights, disability rights area. And, and then we had one from the California DOJ. Whoa, that helps. Yeah, and you know, it's interesting, you think that the DOJ speaks with, you know, when it speaks, the court will will tend to listen a little closer. I don't believe that the DOJ is brief shows up anywhere in the opinion, though, and and late at works brief did for one really important textual issue, which was they pointed to the text of the NLRA, which was written in, which was codified before the predecessor to fiat. And when fee ha was enacted, it borrowed that agent inclusive language from the NLRA. And so since 1959, the NLRB has been interpreting that language as meaning that agents can be liable for illegal conduct under the NLRA. And the California legislature, the reasoning being, you know, the California legislature adopted that language that ought to be interpreted consistent with the way it's been interpreted by the NLRB for for 50 plus years. So yes, I think the amicus briefing was very helpful. I think that sort of it's sort of its side, there's no reference to the DOJ and brief in the opinion, but I think it had to have had had to have have had an impact. Were

Jeff Lewis  28:59  
there no amicus briefs that we did on the employer side against you? Interesting.

Kyle O'Malley  29:04  
There weren't okay. And it's interesting, too, because speaking of amicus briefs and weighing in on the employer side, or perhaps the supervisor side in Reno versus Jones, the case that, you know, left this question open, the Attorney General, filed an amicus brief in support of the supervisor in that case, and so it had a sort of clear change in position, depending on who the you know, the dependent was the target dependent.

Jeff Lewis  29:33 
Oh, interesting. That's interesting twist.

Tim Kowal  29:36 
Now, Randy, I think you had mentioned that the US health health works is a it's a national company. It represents a lot of employers. So does this decision. Do you think it's going to affect its practices and policies nationwide? Is it going to stop doing the cookie cutter one size fits all approach to employment employer employee screening?

Randy Erlewine  29:58  
Oh, let me yeah. And let me let me clarify. It's not even one size fits all, it's no size fits all, this questionnaire didn't apply to any job. From that standpoint, I mean, you would hope so you would hope that there are people involved in the medical screening area, other, you know, occupational health companies would take, you know, notice and that they've got to follow the law. And they should know what it is they're presumably making a lot of money performing these tests and the services. But it's really the the tip of the iceberg here in terms of what the impact of range is going to be that in the area of, for example, artificial intelligence in hiring, and recruiting and background checks and credit checks, bringing in HR people, in having the AI perform a lot of the functions for that, you know, bear upon employment related decisions, and even bringing consultancies to deciding who should be terminated. And who shouldn't, you know, raising the issue about for example, on AI recruiting, and whether there's an embedded discriminant is, you know, you've got embedded discrimination, about waiting out older workers, that they're not going to target their advertising through AI to and pick your platform, whether it be you know, you know, whether it's something like Google or Facebook, or whatever the platform may be, not to mention any particular one, you know, whether they're following the law, whether they're the algorithms they're using are discriminatory, by the way they put it together. And, of course, the the irony, the interesting thing about ranges, it's really the the employers oftentimes are not the bad guys here. Not always, for here, they just want to get a job screening done. And it's the outside agent, they bring in that he's using the discriminatory algorithm or the questionnaire or whatever it may be. And so it's certainly and I think the Supreme Court thought it was fair to go after the wrongdoer. And here, that would be the agent. Plus, one of the significant impacts we see is that here, our class was about 800,000 exams within a four year period, and it was 15,000, employers sending all these applicants to us Healthworks to for these 800,000 exams, and instead of having to sue 15,000, employers, for discrimination by the agent, you're now able to sue one entity, which is the agent to take care of the problem. Right?

Jeff Lewis  32:33  
Yeah. Interesting.

Tim Kowal  32:35  
You have an idea about how many of these screening agencies there are in in the state or in the nation? I don't have that information? Or maybe maybe a better question would be along the lines of what you just mentioned, that it's not so much the the employers or at least certainly not, in all cases that that are seeking this invasive information. They're just hiring this, this third party agency to do the screening. And so now the rain with the rains decision. Now these screeners know that they can be exposed if they don't, they don't narrowly tailor their their questions. So that seems to be that's going to have the lasting impact. And do you do you think that'll be limited to California? Or do you think that'll have influence nationwide?

Randy Erlewine  33:13  
Well, California impacts everything. As most of you know it. I mean, look at look at the laws, they basically a lot of them start in California and movies. So yeah, sometimes it's longer than others. Yeah,

Jeff Lewis  33:26  
including our great, wonderful anti slap law. But we'll get to that in a second. Let's, let's pivot for a second. We brought up AI in this conversation, the role in hiring and screening, Tim and I talk a lot about AI and tech on this podcast and how we're slowly incorporating these tools. You know, I'm an old dude, I remember when we used to blue back filings and give it to a messenger to take down to the courthouse for all this legal Tech was around. Have you folks started to integrate AI in your appellate brief writing process at all? Kyle?

Kyle O'Malley  33:58 
I have not. Unless you consider you know, Westlaw and AI. Interesting. Okay. No, no,

Randy Erlewine  34:07  
but I but you know if your question is a good one, and you know, it's the broad overview of AI in the legal profession and taking into account the New York lawyers that had the misfortune of you know, using an AI brief and they did in fact check it or stripe site check it in and that aI had made up the cases right. Yeah, that did not go well. So I think from my standpoint, it is going to be adopted, but it's a good it's a good start, but not not a finish and there's a lot of safeguards that need to be enacted and you need to be you know, use it use it as a tool but use it carefully.

Tim Kowal  34:46  
Well there are so many AI products now that if you if you don't like the ones on offer now then just wait till next week. The some of the ones that I use or have tried would include you know, Jeff and I were always pitching case text. And it's, and it's co counsel AI product for generating, you know, junior level associate quality memos. It's kind of the equivalent of for a solo attorney who doesn't have someone, I can just go down the hall and pick my head into someone's office and say, Hey, is this a crazy idea? I can just type that into into CO counsel, it'll say, yeah, there's no cases that support that or Yeah, you know, here's, here's some cases you might look at. And then there's, there's clear brief which Jeff and I love, which which help you load up your your case documents into Microsoft Word directly. And you can you can look at your brief and you look at your your source documents that you're citing to side by side, it's a much more natural way to write a brief and natural way for judges and and the research associate attorneys to read the briefs. And then I don't know if Ross Guberman is brief catch is considered an AI product. But that's Oh, it's a great yeah, cool tech. Yeah, totally. No, but clearly, rhetoric also, which is a great way to look, you can load in your briefs, and it tells you if it matches the the the tone language reliance on lights on precedent, and whether they're, whether the judges on that panel are purposiveness, or textualist, or originalists, or whatever it is. So there's a lot of different types of tools that are on offer. Sorry to step on your toes there, Jeff. Yeah, I

Jeff Lewis  36:18  
was just gonna say one clear brief, you know, one non dangerous way to rely on clear brief when you're doing an appellate brief, the, you know, the drudgery of looking for pinpoint sites in the record for a certain piece of evidence, you've typed into a search bar, the complaint was filed on yada, yada date, and it gives you a suggested or 10 suggested places to click in the record visually where that site is, and then you just click on it and the text appears in your appellate brief. It's magical, highly recommend it. Yeah.

Randy Erlewine  36:45  
But let me let me not be a lot out here. And, you know, and I know, Kyle, I mean, Kyle had a Stanford UVA, you know, degree. So he's, you know, you separate, very bright, but it's the learning aspect to us, you know, for the older generation here, going through the process of learning about a subject. And that basically attunes your mind to the asking questions in which questions they ask, as opposed to having an just typing in something and coming up with the AI answer to it, you may not know if what you're getting is right or wrong. And that's the that is the big challenge today, it seems to me is to have people that use it as a tool, but have to go through at least a certain amount of learning process to know whether it's right or wrong, or if it's missing something, for example. And maybe that's just a maybe that's just a cry for human for the human touch to the law. Yeah,

Tim Kowal  37:46  
yeah. Yeah, I think you're right. And I have another perspective on this or shared perspective, from another angle. I've been using chat GPT to help me create original, you know, political cartoon type images for my, my legal blog posts. So it's amazing. You could you could type it in and say I was talking about a case, that ad that had departed from precedent. And so I said, Give me an image of a judge escorting another judge out of to a room that says, overruled or something, and it came out. I said, Oh, that looks belet great. And I posted it. And then one of the commenters on the Post said, you know, why is your judge have three arms. And I was like, Holy crow, he really does have three arms. And Chad GPT can't spell I said give me a sign that says you know, Ninth Circuit Court of Appeals and it spelled circuit, Cir, c u t, and appeal with with three Ps. And I thought, How come it can it can do all this amazing things, and it can't spell and it doesn't know how many arms a person has

Kyle O'Malley  38:45  
and sometimes puts out like Cyrillic letters too, which is Yeah,

Tim Kowal  38:50 
yeah. Yeah, it is. It is a bizarre technology. It does such wonders, but it does hallucinate on certain things that I think I don't know that anyone really knows why it hallucinates. And we talked to Pablo Redondo the founder of of case text. And he described the way AI works. And basically the answer is no one quite knows how it works. It's kind of a black box. It's the left side, I take I take your point, Randy, that we're never going to stop needing the human touch, there's going to be a lot of hand holding. And I think I hope that humans will continue owning up to their work product and not delegating it to a

Randy Erlewine  39:28  
well for example, my father was the pilot airline pilots. And you know, he flew for the Air Force. He learned how to fly fighters. He knew how to fly an aeroplane. Now you're getting people if they're gonna have AI in the cockpit. That's great. But what happens if it goes out? And don't you need somebody that knows how to fly a plane? Or are you just going to call one of the passengers and say, Can you help us out here? So I really think you have to be a little careful about

Tim Kowal  39:56  
it. Yeah, you do. That reminds me of Malcolm Gladwell reporting Right or retelling of the story of I think it was Korean airlines or South Korean airlines about a lot of the pilots there were crashing into mountainsides and was because they have a high differential authority culture there at the time where were the CO pilots with the navigators would say, I think you're going right into the to the side of this mountain, but he's a pilot, but better let him just do what he's gonna do. I don't want to disrespect them. And they had to have bring Western, you know, American trainers in there to say, No, you you are an independent professional in that cockpit. The pilot needs to hear what you have to say you can't just defer to whatever he does.

Kyle O'Malley  40:35  
Yeah, I'm not I'm not miss recalling that was also reflected in the language. Right? And so there was a push toward English because it it reduces that sort of power differential between speakers. Yeah.

Jeff Lewis  40:50  
Hey, let's pivot one more time and talk about the anti slap law in California episode after episode I am cheering it on and talking about all the positives. But I suspect from some of our pre recording conversation that one or two of you might have a different view on the California's anti slap law what uh, what criticisms Would you share about California's anti slap law?

Randy Erlewine  41:12
A lot of the anti flop in my opinion, the the abuse of the anti slap is needs to legislative review and action, especially from a plaintiff standpoint, I mean, you're looking at, it's a no win situation, either you're looking at paying the other side's attorneys fees, or you're looking at a two year appeal, either way, and at the very least, there ought to be some on the appeal as the immediate right to appeal and a stay, there ought to be some discretion by the trial court to say, oh, yeah, I think this this merits say, you know, what, stay of the proceedings for two years, or, you know, or you apply the rules to an interlocutory appeal that would apply otherwise. But it's just it just benefits the defendants in this in generally, that's my been my experience. You know, I

Jeff Lewis  42:03  
gotta say, I tend to agree with you. One of my big criticism of the law is the right of immediate appeal for for frivolous, or what I call smacks strategic motions against credible claims. And if there were an exemption that said, hey, if the trial judge finds this is a frivolous slap, and actually sanctions, the people who filed the slap the defense lawyers have that kind of finding. And that kind of order is not immediately appealable, you appeal at the end of the case, I think that would help reduce tremendously a number of meritless appeals.

Randy Erlewine  42:35  
Yeah. And you you speak from the from employment, for example, it's gone into the employment, you always have to look at a lawsuit and frame your lawsuit, am I gonna be subjected to an anti slap motion? And how can I how can I guard best guard against best while maintaining, you know, zealous advocacy of the client? It becomes a balancing effort. Right. And it may be that maybe that means that you've got to be careful, and you know, her, you know, go to discovery to get your facts and then amend the complaint. So you're absolutely certain, for example, under the rule, you know, rule eight rule nine, it's federal rules, which is it ball crumbly pleading? Well, you know, a lot of times you there's smoke there, but you know, you assume there's fire, but you don't know, okay, and in good faith, you say these are the it looks like it walks like a duck and talks like a duck. But we won't know that we conduct discovery. And then the defense comes in with a 12 V motion. And they say, Well, you haven't played it with sufficient particularity pursuant to rule nine or color crumbly, and you're saying, well, we need discovery. And you get some judges that say, Well, I don't think so. And if you can't plead it, now you don't get it. So in that goes over to anti slap, which is, you know, you're hit immediately with an anti slip. And you have to basically prove that you're going to satisfy protected activity that you're going to prevail on the merits without discovery. And the standards. I mean, from my standpoint, you ought to be allowed a modicum of discovery to fight off emotion like that. But not all judges agree with that. Yeah,

Jeff Lewis  44:13  
yeah. It's hard to get motivated judge to get lifted discovery stay. I wish I do wish there was more wiggle room on Discovery. And one of the things we talked about on last week's episode is there's a federal bill that's been introduced has been passed for a national anti slap law. And that one, it matches California's law pretty closely but the on attorneys fees, instead of it being mandatory attorneys fees for a successful defendant, the court has discretion to deny attorneys fees in a case that it would be unjust to award attorneys fees. So imagine a little guy suing a big employer, they step on an anti slap landmine get hit with a big attorneys fee award under this watered down federal approach. Now the trial judge would have some discretion to say yeah, I'm not going to work this big employer fees against this little guy. Yeah, interesting. Sounds

Randy Erlewine  45:00  
like the sounds like a reasonable solution. Yeah. On

Tim Kowal  45:03  
that topic. Randy, one of the other details or suggestions in this proposed federal anti slap is a five day Safe Harbor before filing the anti slap motion. What do you think about that? Do you think that would be a good solution to curing some of the abuses that that you pointed to?

Randy Erlewine  45:19 
By five days steak harbor? Do you mean that they give notice to the other side? That would imply unless you drop your claim that we're going to file an anti slap? Yeah,

Tim Kowal  45:29  
kind of give give the plaintiff heads up that look, I've spotted some allegations in your complaint that look to me, like like they're alleging against protected activity, we're going to file an anti slap unless you amend or withdraw the complaint.

Randy Erlewine  45:42 
I think that's probably good. I would push back on the five days. I think that's sort of narrow, but yeah, some timeframe to do that under, you know, similar to a notice and cure and other levers. One was 120 7.5 or 20.5. Noticing cure? Yeah.

Tim Kowal  46:00  
Okay. All right. Jeff, we haven't, we haven't done the lightning round a long time. We've got two accomplished appellate attorneys with us, I think, I think we need them to weigh in. So we still don't have a sound effect. But just imagine something like the Jeopardy Daily Double playing in the background here. And so Jeff is now going to subject you to a lot of a lot of questions about idiosyncratic city and pedantic details like font choice and margins and things like that. What do you use in your briefs and your other appellate pride? Well,

Randy Erlewine  46:29  
I've been what what was the what was it was a millionaire where they would, they would defer to your help? Yeah. I'm gonna defer to Kyle on this.

Jeff Lewis  46:39  
Okay. Okay. All right. All right. And Kyle, you'll get the VI survive lightning round mug if if you get these right. All right, this lightning round short responses, one sentence or one word if you can font preference century school book. Garamond or something else?

Kyle O'Malley  46:55 
centuries? Globa? Correct. Answer two spaces or one after a period. Oh, Randy's gonna hate me one.

Randy Erlewine  47:02  
Oh, no, excellent. Yeah, no, no, I'm an age word, too. But I defer to Kyle.

Tim Kowal  47:09  
That's also the right answer.

Jeff Lewis  47:10  
All right. When you're writing your brief in the Court of Appeal, do you write Superior Court? Do you capitalize s&c or lowercase Superior Court with the s&c in a brief in the Court of Appeal?

Kyle O'Malley  47:22  
I'm going to pass

Tim Kowal  47:23  
on that. Okay. That was passed on to I just say trial court.

Jeff Lewis  47:27 
Yeah, me too. Not capitalized. All right, in the major part of your brief legal argument headings, Roman numeral one, Roman numeral two, etc. All caps, initial caps or sentence case?

Tim Kowal  47:39  
Oh, four main

Kyle O'Malley  47:40 
headings, like first headings, all caps. And then like introductions

Tim Kowal  47:45  
statement of facts. Do you mean that or do you mean the demeanor under under like when by the time you get to discussion, and you're getting to your your points under the discussion by

Kyle O'Malley  47:56  
you've got an argument in all caps or discussion and all caps and anything under that you use switch to first letter caps? I do it. All right.

Jeff Lewis  48:10 
And let's see, we're kind of running low on time. Let me let me ask about after major headings in a brief when you get into the next major heading, do you start immediately below? Or do you do a hard break and go to a new fresh page

Kyle O'Malley  48:21  
immediately below?

Jeff Lewis  48:23  
Alright, well, you survived our patented copyrighted segment of the show answering most pressing questions at Vex appellate nerds around the world. Congratulations. And Randy, you get a pass.

Randy Erlewine  48:32 
Thank you, Jeff.

Tim Kowal  48:34 
I need I need an agenda. We always have to ask, do you ever use the parenthetical cleaned up? If you're ever removing quotations or, or changing the holding of the case? Do you

Randy Erlewine  48:47  
have an answer to that? Because Carl used that the other day in a breach so the answer is yes.

Tim Kowal  48:52  

Kyle O'Malley  48:53  
I believe there's there's somebody who I forget who what his name is. But he's, you know, the big advocate for cleaned up,

Tim Kowal  49:01  
Jeff Lewis

Kyle O'Malley  49:03  
was Yeah, and I think it's great. Fantastic. And you're starting to see it more and more often in opinions to

Jeff Lewis  49:11  
tile. You're gonna go far. You're gonna go far. All right, back to you tick.

Tim Kowal  49:15  
All right. Well, I think that's gonna that's gonna wrap us up. Thanks. Thanks, Randy. Thanks, Kyle, for joining us talk about the reins decision. And it's far, far ranging effects. And that's going to wrap us up for today, Jeff, again, we have to thank casetext. We want to thank casetext for sponsoring the podcast each week when we include links to the cases we discussed. We always use casetext daily updated database of case law statutes, regulations, codes, and more. listeners of the podcast will enjoy a special discount when they visit casetext. They'll get a discount on a casetext basic research when they visit casetext.com/calp That's casetext.com/calp. Yeah, if

Jeff Lewis  49:54  
you have suggestions for future episodes, please email us at info at Cal podcast.com. In our upcoming episodes, look for tips on How to lay the groundwork for an appeal when

Tim Kowal  50:01  
preparing for trial. The next day,

Announcer  50:03 
you have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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"A judge is a law student who grades his own papers."

— H.L. Mencken

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


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