Amicus Brief Employers Group Supporting Arthur Andersen

Case No. S147190

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

RAYMOND EDWARDS II, Plaintiffand Appellant, v.

ARTHUR ANDERSEN LLP, Defendant and Respondent.

AFTER A DECISION By THE COURT OF ApPEAL, SECOND ApPELLATE DISTRICT, DIVISION THREE, CASE No. B178246 Los ANGELES SUPERIOR COURT CASE No. BC 255796, HONORABLE ANDRIA K. RICHEY, JUDGE

APPLICATION FOR PERMISSION TO FILE BRIEF AND BRIEF OF AMICUS CURIAE EMPLOYERS GROUP IN SUPPORT OF DEFENDANT AND APPELLANT ARTHUR ANDERSEN LLP

O'MELVENY & MYERS LLP SCOTT H. DUNHAM (S.B. # 65683) CHRISTOPHER W. DECKER (S.B. #229426) 400 South Hope Street Los Angeles, CA 90071-2899 Telephone: (213) 430-6000

Attorneys for Amicus Curiae the Employers Group

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

RAYMOND EDWARDS II, Plaintiffand Appellant, v. ARTHUR ANDERSEN LLP, Defendant and Respondent.

AFTER A DECISION By THE COURT OF ApPEAL, SECOND ApPELLATE DISTRICT, DNISION THREE, CASE No. B 178246

Los ANGELES SUPERIOR COURT CASE No. BC 255796, HONORABLE ANDRIA K. RICHEY, JUDGE

APPLICATION FOR PERMISSION TO FILE BRIEF OF AMICUS CURIAE EMPLOYERS GROUP IN SUPPORT OF DEFENDANT AND APPELLANT ARTHUR ANDERSEN LLP

Pursuant to Rule 8.520(f) of the California Rules of Court, proposed amicus curiae the Employers Group CAmicus") respectfully submits the enclosed brief in support of Defendant and Appellant Arthur Andersen LLP ("Defendant"). The enclosed brief offers a unique perspective on one of the two issues presented by this case: whether a contract provision releasing "any and all" claims the employee

might have against the employer encompasses nonwaivable statutory protections, such as the employee indemnity protection of Labor Code § 2802. For the reasons set forth below, Amicus respectfully urges this Court to reverse the Court of Appeal's decision answering this question in the affirmative.

I.

INTEREST OF AMICUS CURIAE Headquartered in California, the Employers Group is the nation's oldest

and largest human resources management association, representing nearly 5,000 California companies of all sizes and in every industry. These constituent companies employ approximately 2.5 million individuals. Amicus respectfully submits that its collective experience in employment matters, including its appearance as amicus curiae in state and federal forums over a period of many decades, gives it a unique ability to focus on the short and long-term impact and implications of the legal issue under consideration in this case. The Employers Group (formerly known as "The Merchants and Manufacturers Association" and "The Federated Employers") has been involved as amicus curiae in many significant cases, including, but not limited to: Dyna-Med, Inc. v. Fair

Employment & Housing Com., 43 Cal. 3d 1379 (1987); Foley v. Interactive Data Corp., 47 Cal. 3d 654 (1988); Newman v. Emerson Radio Corp., 48 Cal. 3d 973 (1989); Rojo v. Kliger, 52 Cal. 3d 65 (1990); Shoemaker v. Myers, 52 Cal. 3d I (1990); Gantt v. Sentry Insurance, I Cal. 4th 1083 (1992); Hunter v. Up-Right, Inc., 6 Cal. 4th 1174 (1993); City ofMoorpark v. Superior Court, 18 Cal. 4th 1143 (1998); Jennings v. Marralle, 8 Cal. 4th 121 (1994); Green v. Ralee Engineering Co., 19 Cal. 4th 66 (1998); Carrisales v. Department ofCorrections, 21 Cal. 4th 1132 (1999); Reno v. Baird, 18 Cal. 4th 640 (1998); White v.

Ultramm~

Inc., 21

Cal. 4th 563 (1999); Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83 (2000); Guz v. Bechtel Nat 'l, Inc., 24 Cal. 4th 317 (2000); Cortez v.

Purolator Air Filtration Products Co., 23 Cal. 4th 163 (2000); Sav-on Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319 (2004); Yanowitz v. L'Oreal, 36 2

Cal. 4th 1028 (2005); Smith v. Superior Court, 39 Cal. 4th 77 (2006); and Murphy v. Kenneth Cole Productions, Inc., _

Cal. 4th _

(2007).

Amicus has a substantial interest in the outcome ofthis case because its

members regularly enter into general release agreements with employees upon their separation from employment in exchange for a severance payment (as well as in many other circumstances). These agreements typically include the same broad "any and all" language which the Court of Appeal found encompassed nonwaivable claims in this case. Until now, all parties assumed that such releases were valid, lawful, and effective to release existing claims to the extent permitted by law. If this Court, however, does not reverse the decision of the Court of Appeal that such contracts are contrary to public policy, tens of thousands of existing releases will be called into question. If such releases were held unlawful, then employers may face liability for conditioning the severance payment upon such a release. Moreover, such releases may be invalid in their entirety, possibly reviving any number of claims which all involved thought were settled long ago. Thus, Amicus has a strong interest in correcting the erroneous holding of the Court of Appeal in this case and respectfully requests the opportunity to submit the enclosed brief for this Court's consideration.

II.

ISSUES IN NEED OF FURTHER BRIEFING Amicus supports the arguments submitted by Defendant regarding the

second issue presented for review (as identified by this Court in its order of January 17,2007) and does not seek merely to repeat them. Rather, Amicus will present additional arguments and clarifications that will assist this Court in evaluating the important legal issue presented. The enclosed brief supplements the briefs submitted by Defendant in three ways. First, it identifies an additional error in the Court of Appeal's reasoning that will have far-reaching effects if not corrected. Specifically, it explains that the Court of Appeal erred in holding that a release of indemnity claims arising under 3

California Labor Code § 2802 eonflicts with the antiwaiver provision in Labor Code § 2804 because that statute only prohibits prospective waivers of the protections in the Labor Code, not compromises of claims arising out of past events. Under the Court of Appeal's logic, nonwaivable claims cannot be settled by private agreement, an unprecedented rule that will create endless mischief for parties and the cOUlis. Second, the enclosed brief refutes the Court of Appeal's argument that the general release at issue can only be interpreted in one manner, which would necessarily include an attempted waiver of nonwaivable indemnification rights. The enclosed brief explains the basis for an alternative interpretation of the general release provision, under which the release extends only to those claims which the releasor is legally able to surrender. In this way, the brief supplements Defendant's argument that the Court of Appeal should have interpreted the release so as to make it lawful. At the same time, it also counters Plaintiff's argument that the plain language of the release does not allow a lawful interpretation of that agreement. Finally, the enclosed brief explains the negative impacts that the Court of Appeal's holding will have on attempts to buy peace through a general release. In particular, it shows how the holding will greatly expand the class of claims that are immune to settlement and ean only be resolved by a judgment entered by the court. It also explains the danger that the Court of Appeal's holding will unwind existing settlements, while also greatly complicating the drafting of an enforceable general release. Amicus offers a unique perspective on these issues, based on the day-to-day experience of its members in resolving disputes arising out of the employment relationship and attempting to achieve finality and repose.

4

III.

CONCLUSION For the aforementioned reasons, Amicus Curiae the Employers Group

respectfully requests that the Court accept the enclosed brief for filing and consideration.

Dated: May

1'1

,2007

Respectfully submitted, O'MELVENY & MYERS LLP SCOTT H. DUNHAM CHRISTOPHER W. DECKER

By

Jr

4-

4cv

Sc6ttlf.Dunham Attorneys for Amicus Curiae the Employers Group LA3:1l32662.1

5

Case No. S147190

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

RAYMOND EDWARDS II, Plaintiffand Appellant, v.

ARTHUR ANDERSEN LLP, Defendant and Respondent.

AFTER A DECISION By THE COURT OF ApPEAL, SECOND ApPELLATE DISTRICT, DIVISION THREE, CASE No. B178246

Los AJ'
BRIEF OF AMICUS CURIAE EMPLOYERS GROUP IN SUPPORT OF DEFENDANT AND APPELLANT ARTHUR ANDERSEN LLP

O'MELVENY & MYERS LLP SCOTT H. DUNHAM (S.B. # 65683) CHRISTOPHER W. DECKER (S.B. # 229426) 400 South Hope Street Los Angeles, CA 90071-2899 Telephone: (213) 430-6000 Attorneys for Amicus Curiae the Employers Group

Case No. S147190

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

RAYMOND EDWARDS II, Plaintiffand Appellant, v.

ARTHUR ANDERSEN LLP, Defendant and Respondent.

AFTER A DECISION By THE COURT OF ApPEAL, SECOND APPELLATE DISTRICT, DIVISION THREE, CASE No. B178246 Los ANGELES SUPERIOR COURT CASE No. BC 255796, HONORABLE ANDRIA K. RICHEY, JUDGE

BRIEF OF AMICUS CURIAE EMPLOYERS GROUP IN SUPPORT OF DEFENDANT AND APPELLANT ARTHUR ANDERSEN LLP

O'MELVENY & MYERS LLP SCOTT H. DUNHAM (S.B. # 65683) CHRISTOPHER W. DECKER (S.B. # 229426) 400 South Hope Street Los Angeles,CA 90071-2899 Telephone: (213) 430-6000 Attorneys for Amicus Curiae the Employers Group

TABL.E OF CONTENTS Page

INTRODUCTION

1

SUMMARY OF FACTS

3

ARGUMENT AND AUTHORITIES

6

1.

THE COURT OF APPEAL ERRONEOUSLY EQUATED A RELEASE OF CLAIMS ARISING OUT OF PRIOR EVENTS WITH AN ADVANCE WAIVER OF STATUTORY RIGHTS A.

B.

II.

III.

A Release Of Claims Arising Out Of Prior Events Is Not A Waiver For Purposes Of Labor Code § 2804 And Other Antiwaiver Rules The TONC Is An Enforceable Release Of Claims Arising Out Of Past Events, Not An Invalid Advance Waiver Of Statutory Protections

6

6

11

THE COURT OF APPEAL'S HOLDING THAT A RELEASE OF "ANY AND ALL" CLAIMS INCLUDES NONRELEASABLE CLAIMS IGNORES SETTLED PRINCIPLES OF CONTRACT INTERPRETATION

12

THE COURT OF APPEAL'S HOLDING WILL HAVE NEGATIVE CONSEQUENCES FOR EMPLOYERS AND EMPLOYEES, JEOPARDIZING THE ENFORCEMENT OF GENERAL RELEASES AND, THEREBY, GREATLY COMPLICATE SETTLEMENT

15

A.

B.

The Court Of Appeal's Holding Greatly Expands The Number Of Claims Which Cannot Be Settled By Private Agreement, Fostering Litigation Over Finality And Repose

15

The Court Of Appeal's Holding Creates Potential Tort Liability, Jeopardizing The Enforcement Of General Releases And, Thereby, Greatly Complicates Settlement.

16

CONCLUSION

19

-1-

TABLE OF AUTHORITIES Page

CASES

Adams v. Philip Morris, Inc., 67 F.3d 580 (6th Cir. 1995) Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83 (2000) Axa S.A. v. Union Pacific R.R. Co., 269 F. Supp. 2d 863 (S.D. Tex. 2003) Baker Pacific Corp. v. Suttles, 220 Cal. App. 3d 1148 (1990) California Bank v. Stimson, 89 Cal. App. 2d 552 (1949) Callen v. Pennsylvania R.R. Co., 332 U.S. 625 (1948) Constant v. Continental Tel. Co. ofIllinois, 745 F. Supp. 1374 (C.D. Ill. 1990) County ofRiverside v. Sup. Ct., 27 Cal. 4th 793 D'sa v. Playhut, Inc., 85 Cal. App. 4th 927 (2000) Edwards v. Arthur Andersen LLP, 47 Cal. Rptr. 3d 788 (2006) Farnham v. Superior Court (Sequoia Holdings, Inc.), 60 Cal. App. 4th 69 (1997) Hamilton v. Oakland School Dist. ofAlameda County, 219 Cal. 322 (1933) In re Retirement Cases, 110 Cal. App. 4th 426 (2003) Jefferson v. California Dep 't ofYouth Authority, 28 Cal. 4th 299 (2002) Latona v. Aetna u.s. Healthcare Inc., 82 F. Supp. 2d 1089 (C.D. Cal. 1999) Little v. Auto Stiegler, Inc., 29 Cal. 4th 1064 (2003) McClure v. McClure, 100 Cal. 339 (1893) People v. Parmar, 86 Cal. App. 4th 781 (2001) -)-

8 8 7,8,9, 10, 17 8 5, 6, 7, 9 9 8, 9 9 9 7 4, 5, 13, 14 8 9 12 7,8,18 7 17 16,18 12

TABLE OF AUTHORITIES (continued) Page

Plaza Hollister Ltd. Partnership v. County ofSan Benito, 72 Cal. App. 4th 1 (1999) Rogers v. General Elec. Co., 781 F.2d 452 (5th Cir. 1986) Safeco Ins. Co. ofAmerica v. Robert s., 26 Cal. 4th 758 (2001) Swenson v. File, 3 Cal. 3d 389 (1970) Thompson v. Municipal Bond Co., 23 Cal. App. 2d 402 (1937)

16, 18 8 13,18 12 8

STATUTES

49 U.S.C.A. § 11706(c)(1) Business & Professions Code § 16600 Cal. Civ. Code § 1668 § 1751 § 1789.19 § 1801.1 § 3513 Cal. Gov't Code §§ 12900 et seq Cal. Lab. Code § 219(a) §§ 2800-2810 § 2804 Cal. Unemp. Ins. Code § 1342

8 7 7,8, 10 10 10 10 10,16,18 7 10 10 passim 10

OTHER AUTHORITIES 1 West's California Civil Code Forms, Obligations (3d ed. 1989) Black's Law Dictionary (8th ed. 2004)

Justice Ming W. Chin, et aI., Cal. Prac. Guide: Employment Litigation (The Rutter Group 2003)

-11-

5 13

5, 18

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

RAYMOND EDWARDS II, Plaintiffand Appellant, v.

ARTHUR ANDERSEN LLP, Defendant and Respondent.

AFTER A DECISION By THE COURT OF ApPEAL, SECOND ApPELLATE DISTRICT, DIVISION THREE, CASE No. Bl78246

Los ANGELES SUPERIOR COURT CASE No. BC 255796, HONORABLE ANDRIA K. RICHEY, JUDGE

BRIEF OF AMICUS CURIAE EMPLOYERS GROUP IN SUPPORT OF DEFENDANT AND APPELLANT ARTHUR ANDERSEN LLP

INTRODUCTION Every day, employers and employees throughout California enter into agreements whereby the employee abandons any lawsuit the employee may have based on past alleged violations of the employee's rights in exchange for a monetary payment or some other valuable consideration. The purpose of such agreements is to "buy peace" - i.e., to resolve fully and finally all claims which the employee may have against the employer so that the parties may go their 1

separate ways. To achieve that end, these agreements typically employ the most expansive language possible, in order to ensure the released party that it is receiving that for which it bargained - peace. That peace will prove elusive, however, unless this Court corrects the unprecedented (and erroneous) holding of the Court of Appeal that the standard form language employed in these agreements makes them invalid and unlawful. In this case, the Court of Appeal held that typical form language releasing "any and all" claims based on events prior to the date of the release made the agreement unlawful because it would necessarily encompass rights which are nonwaivable as a matter oflaw. That holding was in error for two reasons. First, the Court of Appeal confused the distinction between a compromise of disputed claims and an advance waiver of future claims. The various antiwaiver rules pronounced by the legislature and the courts generally invalidate only advance waivers, not settlements of claims arising out of prior events. Were it otherwise, it would be legally impossible to settle any claim which the legislature or courts have declared nonwaivable. No California eourt has so held and this Court's reeent deeisions reflect precisely the opposite. Second, the Court of Appeal misinterpreted the general release at issue here as extending to claims which cannot be surrendered as a matter oflaw. In so doing, it disregarded settled rules for the interpretation of contracts which required it to construe the contract in accordance with existing law, if possible. Indeed such an interpretation was possible, as the critical language "employee hereby releases and forever discharges" can be interpreted to mean "employee extinguishes those legal obligations which he or she is legally able to extinguish." The Court of Appeal overlooked this possible interpretation because it focused exclusively on what was being released, as opposed to the meaning of "release and ... discharge" in the first place. Thus, it incorrectly held that the release was only susceptible to one interpretation and an unlawful one at that.

2

The Court of Appeal's erroneous holding threatens the peace that a general release is designed to achieve in several ways. First, by holding that an antiwaiver statute also invalidates a compromise of claims arising out of past events, the Court of Appeal creates a new law that claims asserting nonwaivable rights cannot be settled by private agreement. Hence, all existing settlements of such claims are void, and, in the future, such claims can only be resolved by a final judgment of a court oflaw. Given the large number of rights which the legislature and courts arguably have pronounced nonwaivable, such a rule would greatly reduce the peace that parties are able to buy with a general release of claims. Second, by holding that a standard general release of "any and all" claims necessarily encompasses nonwaivable protections and, therefore, is unlawful, the Court of Appeal has greatly complicated the drafting of an enforceable release agreement. To ensure validity, future agreements must either specifically identify all the claims to be released or specifically exclude all the claims which the law deems nonwaivable. Either task would be burdensome, if not simply impossible. Moreover, the penalty for any mistake would be high. Under the Court of Appeal's holding, requiring another party to execute a flawed release would be a "wrongful act" and the basis for tort liability. In addition, there is a risk that the release would be unenforceable in its entirety, even as to claims which could have been surrendered by a properly executed release. In short, where there was once peace, there will now be risk and uncertainty. For the reasons detailed below, this Court should reverse the Court of Appeal's erroneous holding that the general release at issue here constituted an unlawful attempt to waive nonwaivable statutory protections.

SUMMARY OF FACTS The second issue on appeal concerns the interpretation of typical, boilerplate language found in the Termination of Non-Compete Agreement (the "TONC") releasing Defendant from liability for claims arising out of Plaintiffs 3

employment. Like countless other employees, at the time of his separation Plaintiff executed a broad general release (the "Release") in favor of his former employer which provided:

"Employee does hereby release andforever discharge [Defendant} from any and all actions, causes of action, claims, demands, debts, damages, costs, losses, penalties, attorney's fees, obligations, judgments, expenses, compensation or liabilities of any nature whatsoever, in law or equity, whether known or unknown, contingent or otherwise, that Employee now has, may have ever had in the past or may have in the future against any ofthe Released Parties by reason ofany act, omission, transaction, occurrence, conduct, circumstance, condition, harm, matter, cause or thing that has occurredfrom the beginning oftime up to and including the date hereof, including, without limitation, claims that in any way arise from or out of, are based upon or relate to Employee's employment by, association with or compensation from [Defendant] or any of its affiliated firms, except for claims (i) arising out of [Defendant's] obligations set forth in this Agreement or (ii) for any accrued and unpaid salary or other employee benefit or compensation owing to Employee as of the date hereof." (App. 579 (TONC § led)) (emphasis added).) The Court of Appeal held that this commonplace language contravened public policy because it covered the employee's statutory indemnification rights, which are nonwaivable as a matter oflaw under California Labor Code § 2804. 1 The court reasoned that, although the language did not expressly mention indemnification rights, "[t]hey were necessarily encompassed within the clear tern1S of the broad release. A broadly worded release covers all claims within the scope of its language, even if the particular claim is not expressly listed."

Edwards v. Arthur Andersen LLP, 47 Cal. Rptr. 3d 788,807 (2006) (depublished) (internal citations omitted). According to the court, since the statutes providing employees with indemnification rights for expenses incurred in the course of their

All statutory references in this amicus brief are to the California Codes, unless otherwise noted. I

4

employment embody public policy and inure to the public benefit, a release of those rights violates public policy and is void. Id. at 808-09. Moreover, requiring an employee to execute such a release is a wrongful act, which can be the basis for tort liability. Id. at 809. The language which the Court of Appeal invalidated is standard form language employed in countless agreements between employers and employees. At the time of separation, it is commonplace for employers to offer the employee a severance payment in exchange for a general release of all claims arising out of the now-concluded employment relationship. The common practice in drafting such releases is to use the broadest language possible without separately identifying rights which cannot be surrendered as a matter oflaw. Indeed, this is the practice recommended by widely-used and respected practice aids, such as the one authored by Justice Chin of this Court. See, e.g., Justice Ming W. Chin, et aI.,

Cal. Prac. Guide: Employment Litigation) Forms 8:A & 8:B, at 8-86 & 8-107 (The Rutter Group 2003) (containing a form general release agreement releasing all "claims" defined as "any and all manner of action or actions, cause or causes of action ... of any nature whatsoever, known or unknown, fixed or contingent ... by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof ...."); 1 West's California Civil Code Forms, Obligations § 1541, form 3, at 573 (3d ed. 1989) (containing a form general release agreement providing for release "of and from all claims ... of whatever kind or nature ... relating to any matter whatsoever ....); see also Baker Pacific Cop. v. Suttles, 220 Cal. App. 3d 1148, 1156-57 (1990) (acknowledging that "'all' and 'any and all' language ... is common to virtually every form release contemporarily and heretofore used by practitioners").

5

ARGUMENT AND AUTHORITIES I.

THE COURT OF APPEAL ERRONEOUSLY EQUATED A RELEASE OF CLAIMS ARISING OUT OF PRIOR EVENTS WITH AN ADVANCE WAIVER OF STATUTORY RIGHTS. A.

A Release Of Claims Arising Out Of Prior Events Is Not A Waiver For Purposes Of Labor Code § 2804 And Other Antiwaiver Rules.

The Court of Appeal held that the language of the TONC to "release and forever discharge" Defendant from any and all claims based on prior events conflicted with the prohibition in Labor Code § 2804 of agreements "to waive the benefits of this article." This holding was in error because Section 2804, like similar antiwaiver provisions found throughout the California Codes, merely prevents a party from entering into an advance waiver of future claims asserting rights covered by the antiwaiver provision. It does not prohibit a party from settling existing claims asserting those same rights arising out of a prior event. Indeed, prior to the decision of the Court of Appeal in this case, no California court had applied any antiwaiver statute to invalidate a compromise of claims asserting such rights. The Court of Appeal, however, blurred this critical distinction between an unenforceable advance waiver and an enforceable settlement agreement, leading to its erroneous conclusion. The Court of Appeal relied on three cases to support its holding that a release of indemnification rights arising out of prior events conflicted with the antiwaiver provision contained in Section 2804. In each, however, the agreement before the court was an advance waiver, not a retrospective compromise and release. For example, in Baker Pacific Corp. v. Suttles, 220 Cal. App. 3d 1148 (1990), the court analyzed a pre-employment waiver ofthe right to sue third parties (other than the employer) for injuries arising from future workplace exposure to asbestos. Id. at 1151. The Baker court held that the waiver was void because it exculpated those third parties from liability for their future fraud and 6

other intentional acts, in violation of Civil Code § 1668. Id. at 1154. Similarly, in

D'sa v. Playhut, Inc., 85 Cal. App. 4th 927 (2000), and Latona v. Aetna Us. Healthcare Inc., 82 F. Supp. 2d 1089 (C.D. Cal. 1999), the courts analyzed agreements not to compete and held them invalid under Business & Professions Code § 16600 because they overly restricted the employees' ability to pursue future economic opportunities. D'sa, 85 Cal. App. 4th at 930-31; Latona, 82 F. Supp. 2d at 1091, 1094-97. None of these cases invalidated a release of claims arising out of past events. Indeed, the Baker court expressly acknowledged that the release before it would be valid if it were limited to causes of action arising from past events.

Baker, 220 Cal. App. 3d. at 1156-57. Evidently, the court did not believe that the prohibition in Civil Code § 1668 on contracts "to exempt anyone from the responsibility for his own fraud or willful injury to the person or propeliy of another" extended to releases "expressly designed for the settlement of cases." Id. Indeed, prior to the decision of the COUli of Appeal in the instant case, no California couli had held that an individual may not compromise a claim asseliing a right which the legislature or the coulis have pronounced nonwaivable. To the contrary, coulis routinely enforce compromises of such claims. The decisions of this Court regarding claims under the Fair Employment and Housing Act (the "FEHN'), Cal. Gov't Code §§ 12900 et seq., provide a case in point. This Court held in Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83, 100-01 (2000), that a prospective waiver of the rights conferred by the FEHA would be "contrary to public policy and unlawful". Yet, less than two years later, this Couli recognized that a release of claims under the FEHA arising out of past events was valid, holding that a general release of claims arising out of a past injury barred litigation ofa FEHA claim arising out of that same injury. Jefferson

v. California Dep 't ofYouth Authority, 28 Cal. 4th 299,302,309-10 (2002). If the logic of the Court of Appeal were sound, the Jefferson Couli should have held that the FEHA claim was not barred because claims under the FEHA are nonwaivable, 7

as stated in Armendariz. The fact that thc Jefferson Court enforccd a general release to bar a FEHA claim despite the antiwaiver rule in Armendariz proves that an antiwaiver rule does not invalidate a release of claims arising out of past events. The same can be seen in the law of fraud. Contractual releases of future liability for fraud and other intentional wrongs are unenforceable by virtue of Civil Code § 1668. See, e.g., Farnham v. Superior Court (Sequoia Holdings, Inc.), 60 Cal. App. 4th 69,71 (1997). Nonetheless, claims of fraud may be settled by private agreement, and those agreements will be enforced by the courts. See, e.g.,

Thompson v. Municipal Bond Co., 23 Cal. App. 2d 402, 410 (1937). The federal courts have made explicit what is implicit in these California decisions - a rule prohibiting waiver of statutory rights does not prevent parties from contracting to settle existing claims asserting those rights. The United States Supreme Court held in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), that "there can be no prospective waiver of an employee's rights under Title Vll," but then immediately clarified that this antiwaiver rule would not preclude an employee from releasing a cause of action under Title VII as part of a voluntary settlement. Id. at 51-52. Since then, the fedcral courts have repeatedly held Title VII claims barred by a release of all claims arising out of prior events, all the while acknowledging that a waiver of claims arising out of future events would be unenforceable. See,

e.g., Rogers v. General Elec. Co., 781 F.2d 452,454,456 (5th Cir. 1986); Adams v. Philip Morris, Inc., 67 F.3d 580, 584-85 (6th Cir. 1995). The federal courts have drawn the same distinction in applying other antiwaiver rules as well. See,

e.g., Axa S.A. v. Union Pacific R.R. Co., 269 F. Supp. 2d 863, 865-66 (S.D. Tex. 2003) (antiwaiver rule in 49 U.S.C.A. § 11706(c)(1) does not preclude private settlements of claims under that section); Callen v. Pennsylvania R.R. Co., 332 U.S. 625, 630-31 (1948) (same conclusion regarding antiwaiver provision ofthe Federal Employers Liability Act); Constant v. Continental Tel. Co. ofIllinois, 745

8

F. Supp. 1374,1379 (C.D. Ill. 1990) (same conclusion regarding policy against waiver of claims under the Age Discrimination in Employment Act). The different treatment of advance waivers and compromises of claims arising out of prior events flows from the differing public policies at stake in each situation. Where the legislature enacts a law for a public purpose, advance waivers of those statutory protections undermines the public benefit to be gained by the law, and makes it possible to avoid the law entirely by private agreement.

California Bank v. Stimson, 89 Cal. App. 2d 552, 555 (1949) (holding advance waiver of statutory protections void under Section 3513 because "if [a party] could be permitted to waive the provisions of the statute, the effect of the section could be entirely nullified."); County ofRiverside v. Sup. Ct., 27 Cal. 4th 793,805 (allowing advance waivers of statutory rights would render those rights "nugatory"). On the other hand, a compromise and settlement of a claim under that law does not avoid the law but rather gives effect to it since there would be no claim to compromise but for the existence of the law. See Callen, 332 U.S. at 63031 ("It is obvious that a release is not a device to exempt from liability, but is a means of compromising claimed liability and to that extent recognizing its possibility. "). Moreover, the strong public policies favoring settlement of disputes and repose provide additional reasons to enforce such compromises, even though an advance waiver of the same claims would be unenforceable. See Baker, 220 Cal. App. 3d at 1157 (policy of repose justifies enforcement of provisions in settlement agreement that would not be enforceable in an advance waiver); Hamilton v.

Oakland School Dist. ofAlameda County, 219 Cal. 322,329 (1933) ("[l]t is the policy of the law to discourage litigation and to favor compromises of doubtful rights and controversies, made either in or out of court."). This Court made a similar point in Armendariz when it commented that a pre-dispute agreement to arbitrate FEHA claims that did not meet certain minimum requirements was tantamount to a prohibited waiver ofFEHA rights, while a post-dispute agreement 9

to arbitrate that same claim need not meet those same requirements to be enforceable. Armendariz, 24 Cal. 4th at 103 n.8. The error in reading antiwaiver rulcs to prohibit releases of claims arising out of prior events is evident if one considers the implications of the Court of Appeal's holding. If it were indeed the law that a release of claims arising out of past events is a "waiver" for purposes of any antiwaiver rule, then any private agreement releasing such claims will be unenforceable, making it impossible to settle these claims outside of court. Thus, the only way to resolve a claim asserting a nonwaivable right will be to bring suit and enter judgment, either by consent of the parties or by judicial decision. But, there are easily dozens of statutory antiwaiver provisions both inside and outside the employment law context,2 some of which are extremely broad. 3 If each of these pronouncements were also a bar to settlement of such claims, then not only would there be quite a number of claims that henceforth can only be resolved by judicial action, but existing settlements of such claims are void, re-opening any number of disputes which the parties thought settled long ago. The fact that, up until now, parties have freely settled these claims by private agreement demonstrates a widespread

2 See, e.g., Cal. Unemp. Ins. Code § 1342 (rights or benefits under the Unemployment Insurance Act cannot be waived); Cal. Lab. Code § 219(a) (statutory provisions regulating the payment of wages cannot be altered by private agreement); Cal. Lab. Code § 2804 (any agreement to waive the employer's obligations under Lab. Code §§ 2800-2810 is "null and void"); Cal. Civ. Code § 1751 (any waiver by a consumer of the provisions of the Consumers Legal Remedies Act is "unenforceable and void"); Cal. Civ. Code § 1801.1 (buyer may not waive the protections of the Unruh Act governing retail installment sales); Cal. Civ. Code § 1789.19 (buyer may not waive the protections of the Credit Services Act of 1984). 3 See, e.g., Cal. Civ. Code § 1668 (declaring void "[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or propeliy of another, or violation oflaw, whether willful or negligent"); Cal. Civ. Code § 3513 (prohibiting agreements to waive the benefits of any law established for a public reason). 10

understanding among practitioners that the various antiwaiver rules are no bar to compromising a claim asserting nonwaivable rights.

B.

The TONC Is An Enforceable Release Of Claims Arising Ont Of Past Events, Not An Invalid Advance Waiver Of Statntory Protections.

As shown above, given that Labor Code § 2804, like other antiwaiver statutes, only prohibits advance waivers, the TONC could only run afoul of that statute if it purported to waive claims for indenmification arising out of future events. In fact, by its express language, the TONC only covers claims which the employee has, had or will have "by reason of any act, omission, transaction, occurrence, conduct, circumstance, condition, hann, matter, cause or thing that

has occurredfrom the beginning oftime up to and including the date hereof" (App. 579 (TONC §

led»~

(emphasis added).) Nothing in the TONC purports to

surrender legal rights arising out of future events. Thus, the TONC is not an advance waiver, and the antiwaiver rule of Labor Code § 2804 does not come into play. Although the Court of Appeal did not distinguish between advance waivers and settlement of claims arising out of past events, it did at one point suggest that the TONC extended to "past, present andfuture" claims. This is a misreading of the TONC. In fact, it covers claims which the Plaintiff might have in the future, but only if Plaintiff has that claim "by reason of any act ... that has occurred from the beginning of time up to and including the date hereof" (App. 579 (TONC § l(d».) Claims which Plaintiff may have in the future arising out of future events

are not included. This, in tum, is precisely the distinction between an unenforceable advance waiver and a valid compromise of claims. Defendant did not ask Plaintiff to surrender his right to indemnification for expenses he might incur in the future related to his employment, but only to settle any claim he might have for expenses already incurred. Thus, the TONC did not implicate the concerns of the antiwaiver rule in Labor Code § 2804 and the Court of Appeal erred in invalidating the TONC on that basis. 11

II.

THE COURT OF APPEAL'S HOLDING THAT A RELEASE OF "ANY AND ALL" CLAIMS INCLUDES NONRELEASABLE CLAIMS IGNORES SETTLED PRINCIPLES OF CONTRACT INTERPRETATION. The Court of Appeal committed an additional error in holding that the

scope of the TONC extended to claims which the employee was legally incapable of surrendering. Even assuming, arguendo, that the Court of Appeal were correct that an antiwaiver rule such as Labor Code § 2804 also prohibits retrospective releases of claims, the court still should have held the TONC valid because it does not encompass any nonwaivable rights. The trial court held - and Defendant argued on appeal- that, since the TONC did not expressly mention indenmification rights (or any other nonwaivable right), it should not be interpreted as surrendering them, as any such provision would be void as a matter oflaw in any event. The Court of Appeal, however, rejected this sound reasoning, concluding, instead, that the phrase "any and all ... claims" necessarily encompassed indemnification rights, even though the release made no mention of those rights. Edwards, 47 Cal. Rptr. 3d at 807 (depublished). In so doing, it misconstrued the language ofthe TONC, and ignored settled principles of contract interpretation. Defendant's briefs accurately state the relevant principles of contract interpretation and Amicus joins in those arguments. Specifically, in interpreting a contract, a court should presume that the parties knew the law and intended to comply with it. In re Retirement Cases, 110 Cal. App. 4th 426,447 (2003); see

also Defendant's Opening Brief ("Def. 's Open.") at 49-50. Hence, all applicable laws in existence at the time of contracting are incorporated into the contract, as if fully set forth therein. Swenson v. File, 3 Cal. 3d 389, 393 (1970); see also Def.'s Open. at 49. Moreover, the court must construe the contract to be lawful to the extent possible. People v. Parmar, 86 Cal. App. 4th 781, 802 (200 I); see also Def.'s Open. at 57-60.

12

The Court of Appeal failed to apply any of these principles, asserting that, by its plain language, the TONC clearly purports to waive indemnification rights.

Edwards, 47 Cal. Rptr. 3d at 807 (depublished). The Court of Appeal- and Plaintiff - reached this conclusion by focusing entirely on what the TONC purports to "release and forever discharge," namcly: "any and all ... claims ... whether known or unknown, contingent or otherwise, that Employee now has, may have ever had in the past or may have in the future." (App. 579 (TONC § l(d)).) Neither, however, analyzed what it means to "release and forever discharge" a claim in the first place. As a result, both the court and plaintiff overlooked an alternative reading that would not encompass indemnification rights - or any other nonwaivable right - and, thus, would avoid any conflict with Labor Code § 2804 and the public policy it expresses. According to Black's Law Dictionary, "release" and "discharge" may be considered synonyms, both meaning "to extinguish a legal duty." Black's Law

Dictionary at 495, 1315 (8th ed. 2004). That definition, in tum, limits the terms to duties which can be extinguished, since, by definition, one cannot extinguish a legal duty which the law does not allow one to extinguish. Thus, it is possible to read the operative verbs in the TONC as meaning, in effect: "Employee extinguishes those claims which the Employee is legally able to extinguish by entering into this release." That interpretation would avoid any conflict with Labor Code § 2804 (or any other antiwaiver rule) and would incorporate existing law into the contract, in accordance with the presumed intent of the parties. It would also render the general release provision entirely lawful and enforceable. Given the rules of interpretation set forth above, since this interpretation is possible, it is also required. This alternative interpretation is also entirely consistent with the common understanding of a general release of claims, as well as the presumed (if not actual) intent of the parties to such agreements. Cf Safeco Ins. Co. ofAmerica v.

Robert s., 26 Cal. 4th 758, 763 (2001) ("The goal of contractual interpretation is to 13

detennine and give effect to the mutual intention of the parties."). Employers do not typically ask employees to surrender rights which they are legally incapable of surrendering, which is why one rarely sees express waivers of future indemnification rights, workers' compensation claims or any of the other myriad rights which the courts and legislature have pronounced nonwaivable. Rather, employers draft releases to cover "any and all claims" which can be surrendered. These releases do not state the obvious ~ that they do not extend to claims which the employee is legally incapable of surrendering ~ because that rule is already incorporated into the contract itself both by operation oflaw and by the meaning of the words "release" and "discharge." Moreover, expressly excluding these nonwaivable claims would be an unreasonable burden given the long list of nonwaivable rights employees enjoy.4 It must also be presumed that employees share their employer's intent, since employees are presumed to know the law and to contract in light of it. The Court of Appeal hesitated to charge Plaintiff with knowledge of the relevant law, expressing concern that a broad, unqualified release would have an

in terrorem effect on unsophisticated employees who would not realize that it could not affect rights which the courts and legislature had declared nonwaivable.

Edwards, 47 Cal. Rptr. 3d at 810 (depublished). In essence, this amounts to an argument that the court should construe the contract to make it unlawful and void, because some employees might misinterpret it in that manner. Moreover, if the Court of Appeal's goal was to place the burden on employers to avoid language which "unsophisticated" employees might misinterpret, the court chose the wrong path to follow. Under the Court of Appeal's ruling, "any and all ... claims" is unacceptably broad and, thus, drafters must list each covered claim separately (or, alternatively, expressly exclude each nonwaivable right), making the language of a general release even more complicated for unsophisticated parties and, hence, even more prone to 4

See statutes identified at notes 2 & 3, supra. 14

misinterpretation. Plaintiff's proposed solution - adding the phrase "to the extent enforceable by law" - does not address the court's concern, since unsophisticated parties do not know where the limits oflegal enforcement lie. A laundry list of all of the potentially nonwaivable claims would hardly make the release more accessible to those the Court of Appeal seeks to protect. Rather, the true solution is to encourage parties to seek legal advice before entering into a general release, not to abandon the settled rules for the interpretation of such agreements.

III.

THE COURT OF APPEAL'S HOLDING WILL HAVE NEGATIVE CONSEQUENCES FOR EMPLOYERS AND EMPLOYEES, JEOPARDIZING THE ENFORCEMENT OF GENERAL RELEASES AND, THEREBY, GREATLY COMPLICATE SETTLEMENT. A.

The Court Of Appeal's Holding Greatly Expands The Number Of Claims Which Cannot Be Settled By Private Agreement, Fostering Litigation Over Finality And Repose.

As explained above, the Court of Appeal's holding that an antiwaiver statute such as Labor Code § 2804 prohibits retrospective releases of those claims it covers makes it impossible to settle any such claim by private agreement. Such agreements will now be unenforceable since, by the Court of Appeal's logic, they "waive" a right which the legislature or the courts have declared nonwaivable. Hence, existing settlements of such claims are void and, in the future, the only way to resolve such a claim will be to obtain a final judgment or order from a court of law. Both results greatly undermine the public policies favoring the settlement of claims without any corresponding benefit. As noted above, there are easily dozens of statutory protections which the legislature or courts have declared nonwaivable. Moreover, the list continues to expand since, in many instances, no court has yet determined whether a particular statute was enacted for a public purpose and, thus, is nonwaivable by virtue of

15

Civil Code § 3513. 5 Under the holding of the Court of Appeal, all existing settlements of claims arising under these statutes are void and the claims themselves revived for further litigation. Naturally, one can expect that a large number of these claims will be litigated, and even if they were not, the released party will no longer be able to rely on the settlement agreement to protect it. Thus, the peace which thc released party attempted to purchase is destroyed and will only be restored once the applicable statute oflimitations has expired. Moreover, in the future, settling such claims outside of court will not be a viable means of resolving them. Rather, each one will have to proceed to judgment, either by consent of the parties or by judicial action. The increased burden on the courts, and inefficiencies for the parties, are evident. These consequences undermine settlement, finality and reposc, each of which is an important public benefit. McClure v. McClure, 100 Cal. 339, 343 (1893) (settlement agreements "are highly favored as productive of peace and goodwill in the community, and reducing the expense and persistency of litigation."); Plaza Hollister Ltd. Partnership v. County ofSan Benito, 72 Cal. App. 4th 1, 12 (1999) (same, quoting McClure). Moreover, they do so without providing any offsetting benefit to parties, the public or the courts. Unwinding (or preventing) negotiated settlements of these claims is not necessary to uphold the underlying rights: the very fact that the releasor obtained something of value in exchange for a surrender of those rights demonstrates that the rights have been upheld.

B.

The Court Of Appeal's Holding Creates Potential Tort Liability, Jeopardizing The Enforcement Of General Releases And, Thereby, Greatly Complicates Settlement.

By holding that a typical general release of "any and all claims" includes claims which cannot be released as a matter oflaw, the Court of Appeal has Section 3513 states in its entirety: "Anyone may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement." Cal. Civ. Code § 3513. 16 5

greatly increased the risk and uncertainty associated with these agreements. As this case demonstrates, if a release of "any and all claims" were to cover nonreleasable claims, then requiring an employee (or any other party) to execute such a release could potentially be a "wrongful act" and the basis for tort liability. Moreover, such a release may be void in its entirety, not simply void with respect to nonreleasable claims. Under the Court of Appeal's interpretation, the general release provision may itself be illegal, since it includes an attempt to release nonreleasable claims, in violation of public policy. Thus, it is unenforceable, unless the court is able to restrict it to its lawful objects and apply it in that manner. See Armendariz, 24 Cal. 4th at 122-24. 6 Restriction, however, is impossible if the court finds that "the central purpose of the contract is tainted with illegality." Id. at 124. The result cannot be predicted in advance, and could vary from one case to another depending on the terms of the particular release and the relationship of the parties. See, e.g., id. at 124-25 (discussing multiple factors to be considered in determining whether a contract is tainted with illegality); Little v. Auto Stiegler, Inc., 29 Cal. 4th 1064, 1074-76 (2003) (same). The enforceability of general releases will then depend on case-by-case determinations. Rather than assuring finality and repose, these standard form releases will now create uncertainty as to what, if anything, has been released and whether the releasee may be at risk for insisting that the releasor enter into such an agreement. Moreover, if the release were declared a nullity, then the Court of Appeal's interpretation will have produced the exact opposite of

6 Severance, the other option for enforcing the legal provisions of a contract which includes some illegal provisions, is of no use here. Since, under the Court of Appeal's reasoning, the provision in which thc releasor "releases and forevcr discharges any and all ... claims" is itself illegal, the court would havc to sever that provision from the contract. Once this language is severed, the release will no longer be general, but will only cover whatever claims are specifically identified in the agreement. Thus, severance of the illegal provisions would not save the contract as to all of its lawful objects, but only those which the drafters happened to identify in the release. 17

the bargain intended by the parties. Certainly, both intended that the releasee would receive at least some protection against future litigation in exchange for the consideration it paid to the releasor. Cf Safeco, 26 Cal. 4th at 763 (the intent of the contracting parties should guide the interpretation of the contract). Given the widespread use of standard form releases covering "any and all" claims, see, e.g., Justice Ming W. Chin et aI., Cal. Practice Guide: Employment Litigation at 8-86 & 8-107, the potential for controversy and litigation arising out

of previously-settled disputes is substantial. Moreover, to avoid these problems in the future, practitioners will have to abandon the shorthand "any and all" and, instead, specifically identify each and every claim to be released, or expressly exclude each and every nonreleasable claim. Neither solution is workable, however. It is not always certain whether a particular claim is releasable. Even where a statute does not include an antiwaiver provision, it may still be covered by the general antiwaiver rule in Civil Code § 3513, but the COUlis have not yet considered that issue for every single statute in the California Codes. In addition, even if reasonable certainty could be achieved, the resulting list of claims would be long and cumbersome, rendering the release indecipherable. This Court recognized in Jefferson v. California Dep 't of Youth Authority the importance of avoiding such a requirement: "[I]f courts did not enforce general releases, an employer ... seeking a comprehensive settlement, would have to struggle to enumerate all claims the employee might plan to allege. The employer would never be able to know for sure that it had thought of every claim, and therefore it would never be able to put a definitive end to the matter. Employers would then be disinclined to enter into settlements, because certainty as to the full extent ofliability is one factor that motivates employers to choose settlement over litigation." Id. at 306. In the end, both past and future settlements would become much more precarious, if not impossible, undermining the public interest in the resolution of disputes,

18

finality and repose. See McClure, 100 Cal. at 343; Plaza Hollister Ltd.

Partnership, 72 Cal. App. 4th at 12. CONCLUSION For all the foregoing reasons, Amicus Curiae the Employers Group respectfully requests that this Court reverse the erroneous holding of the Court of Appeal that an antiwaiver rule such as Labor Code § 2804 makes unlawful an agreement to "release and forever discharge" a party from "any and all" claims arising out of prior events. Rather, Amicus respectfully requests that this Court clarify that (1) such antiwaiver rules do not apply to a retrospective release of claims, and (2) a general release of any and all claims does not encompass any claim which cannot be released as a matter oflaw. Dated: May

--'!L, 2007

Respectfully submitted, O'MELVENY & MYERS LLP SCOTT H. DUNHAM CHRISTOPHER W. DECKER

BY~-+!V~--c;L-~--¥b~_ Scd'tt H. Dunham Attorneys for Amicus Curiae the Employers Group

19

CERTIFICATE OF COMPLIANCE PURSUANT TO RULE OF COURT 8.204(c)(1)

I, Scott H. Dunham, declare:

I.

I am an attorney at law duly licensed to practice before all Courts of

the State of California and am a partner ofO'Melveny & Myers LLP, attorneys of record for Amicus Curiae the Employers Group.

2.

According to the computer program used to prepare this brief, the

word count, including footnotes, of this brief is 6,441 words.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 11

EXECUTED this ~ day of May 2007, at Los Angeles County, California.

20

PROOF OF SERVICE

I, Carol R. Hawkins, declare: I am a resident of the State of California and over the age of eighteen years, and not a party to the within action; my business address is 400 South Hope Street, Los Angeles, CA 90071-2899. On May 14, 2007, I served the within document(s): APPLICATION FOR PERMISSION TO FILE BRIEF AND BRIEF OF AMICUS CURIAE EMPLOYERS GROUP; IN SUPPORT OF DEFENDANT AND APPELLANT ARTHUR ANDERSEN LLP; BRIEF OF AMICUS CURIAE EMPLOYERS GROUP IN SUPPORT OF DEFENDANT AND APPELLANT ARTHUR ANDERSEN LLP by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California addressed as set forth below. Wayne S. Flick (SBN 149525) Yury Kapgan (SBN 218366) LATHAM & WATKINS LLP 633 West Fifth Street, Suite 4000 Los Angeles, CA 90071-2007 Tel.: (213) 485-1234 Fax: (213) 891-8763 [email protected]

Kristine L. Wilkes (SBN 116693) Colleen C. Smith (SBN 231216) Shireen M. Becker (SBN 237930) LATHAM & WATKINS LLP 600 West Broadway, Suite 1800 San Diego, CA 92101-3375 Tel.: (619) 236-1234 Fax: (619) 696-7419 [email protected]

Richard A. Lovc, Esq. Beth N. Shenfeld, Esq. Law Offices of Richard A. Love 11601 Wilshirc Blvd., Suite 2000 Los Angeles, CA 90025

Marc J. Poster, Esq. Greines, Martin, Stein & Richland LLP 5700 Wilshire Blvd., Suite 375 Los Angeles, CA 90036-3626

Paul Grossman, Esq. California Employment Law Council Employers Group 515 S. Flower Street, 25th Floor Los Angeles, CA 90071

Erika C. Frank, Esq. General Counsel California Chamber of Commerce 1215 K Street, Suite 1400 Sacramento, CA 95812-1736

LAJol13J038.1

Jeffrey A. Berman, Esq. Sidley Austin LLP 555 W. Fifth Street, Suite 4000 Los Angeles, CA 90013-1010 Clerk of the Court California Court of Appeal Second District, Division Three Ronald Reagan State Building 300 South Spring Street Second Floor Los Angeles, CA 90013

Clerk of the Court Superior Court of Los Angeles III N. Hill Street Los Angeles, CA 90012

I declare under penalty of petjury under the laws of the State of California that the above is true and correct.

Executed on May 14, 2007, at Los Angeles, California.

Carol R. Hawkins