Legal Update: Ice Cream Complaints; Drug Tests and CSI

On our Legal Update we hear how far you can go on a business complaint line; a lawsuit over characters on the TV Show CSI and claims that a company's drug tolerance policy may be a form of discrimination.

GUEST

San Diego Attorney Dan Eaton

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CAVANAUGH: I'm Maureen Cavanaugh, you're listening to These Days on KPBS. In today's legal update, we'll talk about the issue of employee drug tests and whether a one strike rule discriminates against recovering drug addicts. Plus two Los Angeles real estate agents sue the TV show, CSI, and when your favorite pumpkin flavored ice cream disappoints, can you leave a profanity laced comment on the customer complaint line. Here to answer that question and more is These Days legal analyst, San Diego attorney, Dan Eaton. Hi Dan.

EATON: Good morning, Maureen.

CAVANAUGH: Well, you know, we've all had disappointing experiences at restaurants, I think, but most of the time, the restaurant problems don't wind up before the California court of appeal.

EATON: No. Of the highest they go is maybe to the restaurant manager. And I actually just had a disappointing experience in Las Vegas. But we can talk about that off line.

CAVANAUGH: There you go. So you can relate to this.

EATON: But the case is People versus Powers, and it turns out, the person who complained, his name is David Powers, and he had a thing, as you said in the intro, for pumpkin flavored ice cream. And was very unhappy when he got less than the 48 ounces of pumpkin flavored ice cream that he ordered to go. He said on one of the four messaged for which he was being prosecuted that he was being ripped off, and he also used various words that I cannot use on the air. He said that he was a big customer, going to the store as many as 400 times in a given year. Now, if you do the math, that means more than once a day you're going to an ice cream shop. So anyway, he left these four very profane messages on the customer service line which was not answered, it's important to realize, by any live person. He was subsequently prosecuted under a criminal lawmaking it a crime to leave annoying calls.

CAVANAUGH: And so -- he was found guilty?

EATON: He was. He was found guilty by a judge and sentenced to 540 days in county jail with reduction for time he had already served and for good conduct. Understand, so that you have a full -- the context of this.

CAVANAUGH: Yeah.

EATON: Is that originally he was found incompetent to stand trial, mentally. And then when he was found competent then he went before a judge and ultimately, he was found get of four misdemeanor counts of making annoying phone calls and sentencing I just mentioned.

CAVANAUGH: Somehow we knew that was in the mix.

EATON: Yeah. Of.

CAVANAUGH: Giving Mr. Powers his due, tell us about the nature of the calls.

EATON: Well, the only call -- the segment of any call that I can even repeat on the air, Maureen is where he said, in one of the calls he said, quote, Cold Stone Creamery customers, including their employees, are supposed to do their job. They're not supposed to let people flounder and feel helpless and hopeless and worthless, close quote. Understand that he's complaint wasn't just about by way of the employees, he also said that customers were annoying him, so that's why he got a little bit confused and some of his more profane comments were directed at customers whom he didn't think were giving him his due.

CAVANAUGH: Well, tell us about the law. How is it that Mr. Powers was prosecuted and eventually got convicted of?

EATON: It's Penal Code section 653(m)(a), which make its a misdemeanor, and I'm gonna quote here, for anyone, quote, who with intent to annoy, telephones or makes contact by means of an electronic device, such as a PDA, with or another purchase, and addresses to or about the other person any obscene language, close quote, or threatens to injure the other person or member of that person's family or that person's property.

CAVANAUGH: Right. So what's the purpose of the law.

EATON: Well, the purpose is to keep people secure in their privacy and their peace. The California court has held though that for a call to be obscene, which is the purpose of the law, it need only meet the anyone who dictionary definition of that word, meaning that it is, quote, offensive to one's feelings or prevailing notions of modesty or decency. Lewd, rather than the US Supreme Court's definition of obscene, which deals with erotic material and so on.

CAVANAUGH: Clearly sound like they were annoying. They used some profanity. And you tell us, we didn't actually hear you say that.

EATON: No.

CAVANAUGH: What was the critical question that the Court of appeal had to decide for Mr. Powers.

EATON: Well, the Court of Appeal agreed that the calls were annoying. Everyone would. But that wasn't the critical question. The Court noted that the decisive issue was whether Mr Powers, quote, annoyed the call recipient with threatening language and whether he annoyed the call recipient with obscenities, and here's the critical question, used lewdly, which is in a manner offensive to prevailing notions of modesty and decency, though not necessarily erotic.

THE COURT: So thought the words themselves, not necessarily obscene.

EATON: No, we've all used -- well, I have anyway, have used those words as emotional intensifiers without meaning them in their literal, sexual sense.

CAVANAUGH: Hoe how did the Court of Appeal rule?

EATON: The Court of Appeal reversed Mr. Power's criminal conviction. And the court opened its opinion by saying quote, an employee who listens to consumer complaints should have a thick skin. He or she might reasonably expect to hear complaints just like the ones in this case, which is to say complaints laced with references to bovine excrement, body parts, and other vulgarities derived from sexually related terms, close quote. The Court of Appeal found that the comments were not directed to a specific targeted individual, and that the words that he used were really emotional intensifiers, said the Court, the messages are annoying razz concerning customer service. It is reasonable for someone to be annoyed we Mr. Powers' language but the vulgarities are uttered cannot be described as obscene, especially in the context of a customer service line maintained to take complaints except in extreme cases we doubt that a person whose job it is to receive consumer complaints has a right to privacy against unwanted intrusion. Close quote.

CAVANAUGH: So I'm wondering then, does that mean the Court is saying is that anything goes in making calls to customer complaint lines.

EATON: No, Maureen. Of the Court was very careful in these concluding comments to make it veer it wasn't saying that. It said that the criminal law could be violated, if a caller, even to a customer service line were either to threaten injury to someone or to use the obscene language lewdly, rather than as an emotional intensifier, Mr. Powers, the Court concluded, quote, did not cross the line, close quote.

CAVANAUGH: Okay. So that's the case of a pumpkin ice cream. We move on to the next case, it concerns the popular CBS television show, CSI, crime scene investigation in Las Vegas. How did CBS and a writer on that show end up being sued by two married Los Angeles agents?

EATON: One of the writers of this show had the real estate agent show her a house in Los Angeles back in 2005, that's what happened. Sarah Goldfinger was a writer on CSI, which is apparently a very popular show, though I've never seen it. I don't want to watch a law show after working all day in law. But anyway, the sellers of the home that Ms. Goldfinger was looking back in 2005 were represented by awe couple, this is important to get, by the name of Scott and Melinda tamp kin. Ms. Goldfinger's offer ultimately did not go through because she found some real problems with the property and was able to back out. But let's fast forward then to 2008 where Ms. Goldfinger is being given the assignment along with another writer for writing an episode of CSI in the 13th episode of its ninth season, and the plot line for which he was responsible, there were two plot lines, and she was possible for writing this particular plot line concerned a married couple in the real estate or mortgage business, one of whom would commit suicide through an overdose on fluoride. Now in her early draft of the script, Ms. Goldfinger named the married real estate agent characters, you guessed it, Scott and Melinda Tampkin, the agents whom she encountered come looking for a home three years earlier, and actually, the characters were mortgage brokers not real estate agent, but it was still in the same industry.

CAVANAUGH: So in this early draft of the script, Ms. Goldfinger used names she knew were the names of a real married couple who happened to be real estate agents. But she didn't leave it there.

EATON: No she didn't. They were actually later -- the names were later changed to Scott and Melinda Tucker. So why did he even use these real names even in a draft? She said it was a technique used to remember the character names and these were the only two -- the only married couple in this real estate agent. She cannot really know any industry, she didn't really know any specifics about this particular married couple, but it would help her to keep track as the script went through its various drafts. She knew that eventually the script would be legally vetted to remove names that were real, and so she said she used these as part of the creative process in creating the script.

CAVANAUGH: So how did the real life Tampkins even find out that their real names were used in the first draft of the show? Because they never got on the air.

EATON: No, two words, Maureen, the Internet. What happened was this. Based on the preliminary script, casting descriptions were sent out to various casting agents in the leads area. And they take very serious security precautions to avoid that getting out more broadly. But the problem is, sometimes things he can, and that's what happened here. It leaked out, apparently to various websites including one website of interest to CSI fans who talk about up coming plot lines to the extent that they are leaked. And Mr. Tampkin learned of the casts descriptions while doing an internet search that many of us do of our own name on the Internet. According to the Court of appeal, Mr. Tampkin also discovered that the actors portraying those two people in the show ended up saying that they portrayed Scott and Melinda Tampkin, not Scott and Melinda tuck are which were the names of course to which the real names were changed.

CAVANAUGH: Okay. So the Tampkin real estate agents found out that they were in the first draft of this by looking on the Internet. But why did the Tampkins sue?

EATON: Because it turns out there were similarities let's just focus on Scott Tampkin. It turns out he of course was married to a woman with the first name of Melinda, there were certain similar physical characteristics, they appeared to be the same age, around their 30, a real estate agent, and this is odd, actually Scott Tampkin ended up using a prescription toothpaste for periodontal disease, which the character did also. Which obviously Ms. Goldfinger didn't know when she wrote the script. In addition, the Tampkins like the Tuckers had notices sent to them, although in their case, it was a mistaken case, and it turns out they were having marital problems, which was an issue in the script. So there were certain similarities. But the problem that Scott had was it was the differences that made him upset. The description, the casting description for Scott Tampkin's character had been that he was, quote, slick and hard drinking and engaged in extensive bondage and porn watching. The description also said that his character feels his world drop out from under him during the mortgage crisis, his clients have left him, and his own house may be foreclosed on. He is a suspect in his wife Melinda's murder. Obviously none was that was true, and he was very unhappy that there could be confusion between the fictional and the real Scott.

CAVANAUGH: Now, the trial judge ruled that the Tampkins should be allowed to proceed with the case, yet CBS and writer were able to convince the court of appeal to rule that the lawsuit should be thrown out. Why did the Court of Appeal rule against this couple.

EATON: The law at issue here, Maureen, is an antiSLAP statute. And I have actually talked about this before on the show. The antiSLAP law, SLAP means Suits at Law Against Public Participation. And it's designed to prevent and allow an early dismissal of lawsuits that are aimed to chils the exercise of free speech. That law allows someone sued based on any fact of that person in furtherance to the person's right to free speech under the California or federal constitution to seek to throw out is that lawsuit if the speech is made in connection with a public issue. The person seeking to have the suit thrown out with that law must make an initial showing that the speech was constitutionally protected in connection with a public issue. If nay can succeed, the person who is doing it is suing can still keep the lawsuit going and in play, if they show it's like he they're going to prevail on the merits, ultimate.

CAVANAUGH: And finally one of the things the Tampkins brought up before the Court of Appeal, they were afraid they said they were defamed because now when you Googled Tampkin, you also got this Scott Tampkin CSI. But the port of appeals said there really wasn't much to that.

EATON: Right, the Court of Appeal really found that this lawsuit should have been dismissed because no reasonable person looking at that would be that the fictional Scott and Melinda Tucker were the Scott and Melinda Tampkin. There were too many difference. The similarities were fairly superficial. And also with respect to the Internet search, it turns out that that Internet search of the bad material that Scott Tampkin and Melinda Tampkin claimed were defamatory, they don't turn up until page five of a search. Now, obviously with this lawsuit, they're gonna turn up a lot sooner. That's one of the ironies of this, but it would also turn up with the Court of Appeals that it was clear that these discriminations were false.

CAVANAUGH: And Dan, we end on a -- I don't know, rather sad case. Santiago Lopez wanted to be a long shore man back in 1997, he applied for a job, he was given at least seven days notice that there would be a drug test, but he tested positive for marijuana. He was disqualified. At that time, he was addicted to drugs and alcohol, but he got sober. He got clean and sober in 2004, he went back, he reapplied to become a long shore man with the Pacific maritime association, but they have a one strike rule that qualified him.

DEFENDANT: They do. Of the Pacific maritime association represents employers at ports up and down the west coast, including, by the way, certain San Diego employers that ship. And Mr. Lopez was disqualified because of this one strike rule that says if you test positive for preemployment screening, you're out. You can never work as a long shore man for a port employer. Mr. Lopez claimed that he was being discriminated against when he applied the second time because he was a recovering drug addict. He therefore sued under the federal and California discrimination and employment laws.

CAVANAUGH: So why did board employers adopt a rule that permanently disqualifies applicants who fail one preemployment drug test?

EATON: The history was that there had been serious injuries in the past. And the problem was that the port employers sort of felt that that was because there was a tolerance of drug and alcohol use in this work place. So with the support of the union who represented the long shore workers, the employers adopted this one strike and you're permanently out rule. According to the opinion, port employers did not adopt the rule to exclude recovered and recovering drug addicts from the work place, but instead because of the belief that, quote, applicants who could not abstain from using an illegal drug even after receiving notice of an up coming drug test because they were notified in advance, showed less responsibility and less interest in the job than applicants who passed the drug test.

CAVANAUGH: So how did the ninth circuit rule in this case?

EATON: The ninth Circuit ultimately rejected Mr. Lopez's argument was discriminatory against recovering drug addicts and I'll just quickly read the passage, quote, the rule eliminates all candidates who test positive for drug use, whether they test positive because of a disabling drug addiction or because of an untimely decision to trite drugs for the first time recreationally on the Kay for the drug test. Had Mr. Lopez applied for the first time in 2004, he would have qualified for employment despite his status as a recovering addict. The triggering event for purposes of the one strike rule is a failed drug test not an applicant's drug addiction, close quote. The court's decision was emphatic. The federal and State disability discrimination laws protect people who are recovering or who have recovered from a drug addiction, they do not protect people who are using illegal drugs when they apply for a job, close quote.

CAVANAUGH: However, the Court did agree in part with Mr. Lopez that that one strike rule was harsh.

EATON: Yeah, in fact they said, sure. But the disability and discrimination laws do not keep employers from adopting unreasonable rules. They prevent employers from adopting unreasonable rules that discriminate against disabled applicants, and that they did not do here.

CAVANAUGH: Well, I want thank you. Again a lot of information. Thank you Dan.

EATON: All right. Thank you Maureen.

CAVANAUGH: If you would like to comment, please go on-line, KPBS.org/These Days.