Mr. Adelstein represented a former substitute teacher who was peacefully picketing

Krell v. Gray

On appeal, Mr. Adelstein represented a former substitute teacher who was peacefully picketing in front of a LAUSD middle school. His sign and leaflets stated that the school promoted racism, sexism, and low student performance, and he specifically named the assistant principal. The assistant principal was upset with this. First, he and LAUSD sued the former teacher on the theory that the teacher's picketing was promoting workplace violence, and sought an injunction under Code of Civil Procedure, section 527.8. The trial court noted that the teacher was not encouraging violence and in any case his picketing was protected by the First Amendment.

Undeterred, the assistant principal then sued under Code of Civil Procedure, section 527.6, arguing that the teacher's picketing was a form of harassment. The case was assigned to a different judge who concluded that the picketing was harassment, rejected the teacher's res judicata and collateral estoppel defenses, rejected the First Amendment defense, and entered the injunction.

The appeal had a convoluted history. Mr. Adelstein's brief argued that the injunction should be reversed under res judicata, collateral estoppel, and the First Amendment, among other things. He also requested attorney's fees under Code of Civil Procedure, section 527.6, subdivision (i). LAUSD represented the assistant principal and argued to the contrary.

The Court of Appeal initially issued a published opinion affirming most of the injunction but remanding for a relatively minor correction. Mr. Adelstein filed a petition for rehearing, arguing that this opinion had incorrectly analyzed both the collateral estoppel and First Amendment issues. The Court of Appeal then asked for two sets of supplemental letter briefs, granted rehearing, and issued a second opinion reversing the trial court's injunction in full. The Court of Appeal also awarded attorney's fees under Code of Civil Procedure, section 527.6, subdivision (i).

Case Comment

I need to commend the justices in this case for granting rehearing. Petitions for rehearing are rarely granted, especially if a case has been designated for publication. But the Court of Appeal's analysis in its initial opinion, especially of the First Amendment, was simply incorrect. Many justices would be tempted to simply deny the rehearing petition and be done with the case. But the court here not only granted rehearing, but spent a considerable amount of time ordering and considering two sets of supplemental letter briefs. The justices not only worked hard to get the right result, but changed their mind in the process, and this should not pass without note.


Court: California Court of Appeal, Second Appellate District, Division Five (Los Angeles)
Case No. B169593
Authors: Justice Richard Mosk; Presiding Justice Paul Turner
Opinion Date: February 16, 2005; April 27, 2005
Trial Counsel: The client was in pro per.

"American Beauty" Case Exposes Appeals Court Rift

Unity isn't always a good thing; sometimes people are unified in pursuit of evil purposes. I think a difference on the court now and then is better than having justices who always go along to get along.

Kristin Rossum

"American Beauty" Case Exposes Appeals Court Rift
On Point
By Matthew Heller
10/26/07

A decision throwing out a $1.5 million jury award in the “American Beauty” murder case has exposed a rift in the California courts over whether a government agency can be directly liable for negligent hiring and supervision of its employees.

Kristin Rossum, a former employee of the San Diego County Medical Examiner's Office, was convicted in 2002 of poisoning her husband with a drug she had stolen from her workplace. Red rose petals were found strewn around the body of Gregory de Villers, evoking a scene from the Oscar-winning film “American Beauty.”

In a wrongful-death suit, de Villers's family alleged the negligence of the county's managers in hiring and supervising Rossum was a proximate cause of the murder. A jury in March 2006 found Rossum 75 percent responsible, leaving the county to pay 25 percent ($1.5 million) of the $6 million award of compensatory damages.

The 4th District Court of Appeal last week reversed the award against the county in an opinion that found the plaintiffs could not maintain their negligence claim because it was “not grounded in the breach of a statutorily imposed duty,” as required by California Government Code Section 815.

“[T]here is no statutory basis for declaring a governmental entity liable for negligence in its hiring and supervision practices,” the court said.

The plaintiffs had cited a 2nd District precedent which said a school district could be sued for negligently hiring and supervising a teacher who molested a junior high-school student if administrators knew or should have known of [the teacher's] prior sexual misconduct toward students, and thus, that he posed a reasonably foreseeable risk of harm to students under his supervision. Virginia G. v. ABC Unified School Dist., 15 Cal.App.4th 1848 (1993).

According to the de Villers family, the county should have known of Rossum's history of methamphetamine abuse and taken precautions to prevent her from using meth impounded by the medical examiner.

But Justice Alex C. McDonald, writing for the 4th District, said Virginia G. erroneously relied on a California Supreme Court case and "should not be perpetuated." John R. v. Oakland Unified School Dist., 48 Cal.3d 438 (1989), held that the plaintiffs could pursue claims against a school district “premised on its own direct negligence in hiring and supervising” a teacher.

“[T]he language [in John R.] is both dicta and is contained in an opinion that did not command a majority of the court,” McDonald stressed. Only two of the seven justices signed the lead opinion, with three justices concurring “only 'in the majority's holding' of no vicarious liability.”

The concurring justices' silence on direct negligence, however, is too slim a reed for McDonald to conclude they did not support the majority on that issue. And the lead opinion goes well beyond dicta by saying, “we must now decide whether plaintiffs should ... have the opportunity to pursue” their direct negligence claims.

With the split at the intermediate appeals court level on this important issue, the Supreme Court should accept de Villers v. County of San Diego for review.


Here are Justice McDonald's goals:

Increase the cooperation and congeniality of appellate court administration and decision making.

Emphasize consistency of legal precedents in the development of the law.