Litigation

Litigation Update: May 2025

Litigation Section Litigation Update

the monthly publication of the Litigation Section of the California Lawyers Association.

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Julia C. Shear Kushner
  • Editors, Dean Bochner, Colin P. Cronin, Austin Evans, Jenn French, Ryan Wu

Our Updates:

Pyrrhic Victory for Insured.

An insurance company terminated plaintiff’s life insurance policy for nonpayment of premiums. Plaintiff had moved and did not notify the carrier of her new address. The district court entered summary judgment for plaintiff for violation of Insurance Code §§ 10113.71 and 10113.72. The Ninth Circuit concluded that “the district court did not err in granting the first portion of [plaintiff’s] requested relief—a declaration that [the insurer] violated the Insurance Code—because [plaintiff] provided all necessary evidence to support this claim. But we find that the district court did err in granting the second portion of [plaintiff’s] requested relief—a declaration that her insurance policy remained valid— because this declaration required evidence of causation that [plaintiff] failed to provide. As a result, we affirm in part and reverse in part the declaratory relief that the district court granted. Because all of [plaintiff]’s other claims were dismissed with prejudice, we remand to the district court solely for the purpose of entering final judgment.” (Siino v. Foresters Life Insurance and Annuity Company (9th Cir., Apr. 1, 2025) 133 F.4th 936.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/04/01/23-16176.pdf

Discovery Request to Locate Operator of Anonymous Website Should Have Been Granted.

Applicant sought discovery from a company headquartered in California to identify potential defamation defendants in the United Kingdom, including the anonymous operator of a website that published an allegedly defamatory article. Citing the First Amendment, the district court denied the discovery request. Reversing, the Ninth Circuit concluded that “no evidence in the current record suggests the implication or infringement of any person’s First Amendment rights.” (In re Gliner (9th Cir., Apr. 1, 2025) 133 F.4th 927.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/04/01/24-4624.pdf

Public Employers Are Excluded from the Terms of Labor Code § 2802.

When the COVID-19 pandemic struck, the Board of Trustees of the California State University (CSU) directed that instruction be provided remotely. To comply with this directive, plaintiff, a biology professor at CSU Los Angeles, incurred expenses for a computer and other equipment and necessities that CSU declined to reimburse. He sued CSU on behalf of himself and similarly situated faculty, alleging that Labor Code § 2802 obligated CSU to reimburse its employees for necessary work-related expenses. The trial court sustained CSU’s demurrer without leave to amend. Affirming, the Court of Appeal stated: “[T]he Legislature intended to exclude government employers from the terms of section 2802.” (Krug v. Board of Trustees of the California State University (Cal. App. 2nd Dist., Div. 1, Apr. 1, 2025) 110 Cal.App.5th 234.)

https://www4.courts.ca.gov/opinions/documents/B320588A.PDF

The FDA Was Not Arbitrary or Capricious in Denying Approval for Marketing Flavored E-Cigarettes.

The Family Smoking Prevention and Tobacco Control Act of 2009 (21 U.S.C. § 387j(c)(2)(A)) regulates the sale of e-cigarettes. The U.S. Supreme Court was called upon to decide whether the Food and Drug Administration (FDA) lawfully denied authorization to market certain e-cigarette flavored products. The main issue concerned the change-in-position doctrine, which requires reviewing courts to hold unlawful an agency’s action that is found to be arbitrary or capricious. The doctrine asks two questions: first, whether an agency changed existing policy, and second, whether the agency displayed awareness of the change and offered good reasons for the new policy. The Fifth Circuit held that the FDA acted arbitrarily and capriciously in requiring scientific evidence to demonstrate that the marketing of the products would be appropriate for the public’s health. The U.S. Supreme Court vacated that holding, finding the FDA’s action was consistent with its pre-decisional guidance. (Food and Drug Administration v. Wages and White Lion Investments, L.L.C. (U.S., Apr. 2, 2025.) 145 S.Ct. 898.)

https://www.supremecourt.gov/opinions/24pdf/23-1038_2d93.pdf

RICO Extends to Business or Property that Derived from Personal Injuries.

A man was injured in a vehicle accident. When traditional treatments did not help his pain, he purchased and ingested a product called Dixie X that was marketed and sold as “0% THC.” A few weeks after he began taking the product, his employer selected him for a random drug screening. He tested positive for THC and was fired. The man sued the manufacturer of Dixie X for triple damages under the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1964(c); RICO), alleging  that the manufacturer was a RICO “‘enterprise’” engaged in marketing, distributing, and selling Dixie X. The U.S. Supreme Court held that a RICO civil cause of action for “any person injured in his business or property” extends to business or property that derive from personal injuries. (Medical Marijuana, Inc. v. Horn (U.S., Apr. 2, 2025) 145 S.Ct. 931.)

https://www.supremecourt.gov/opinions/24pdf/23-365_6k47.pdf

Attorney Disqualification Order Affirmed. 

Defendant appealed from a probate court’s order disqualifying his attorney and the attorney’s law firm based on e-mail exchanges between plaintiff and defendant’s attorney, where plaintiff consulted with and sought to retain the attorney in his case against defendant. The probate court granted the disqualification motion under rule 1.18 of the California Rules of Professional Conduct, which prohibits attorneys from representing a client with interests materially adverse to those of a prospective client where the attorney received confidential information that is material to the matter. On appeal, defendant argued that rule 1.18 requires courts to evaluate whether information shared by a prospective client is material at the time of the disqualification, not whether it might have been material at some point in the past. Affirming the disqualification order, the Court of Appeal stated: “While we agree with [defendant’s] assertion that materiality should be evaluated at the time of disqualification under Rule 1.18, we conclude the information disclosed to [the attorney] remained confidential and material here.” (Winter v. Menlo (Cal. App. 2nd Dist., Div. 8, Apr. 2, 2025) 110 Cal.App.5th 299.)

https://www4.courts.ca.gov/opinions/documents/B328474.PDF

Death Penalty Case Reversed Due to Erroneous Discharge of a Juror.

During jury deliberations after the guilt phase of the trial of a man later convicted of murder and sentenced to death, members of the jury sent this note to the judge: “We, Jurors Number Nine and 11, feel that the majority of the jury feels as though one juror, Number Five, has been swayed and is not capable of making a fair decision in any of the counts against [defendant]. [¶] Juror Number Five is using speculation as facts and has no rational explanation as to why he feels the way he does other than saying every prosecution witness was coached and lying. Yet the defense witnesses are all telling the truth and believable.” After discussions with counsel, the court questioned several members of the jury separately. Juror No. 5 was removed. The trial judge stated in relevant part: “My job as a judge is to make sure that we have jurors that will give both sides a fair trial. And I am of the opinion that Juror Number Five is not giving and will not give a fair trial to the prosecution. And I am going to remove him for misconduct.” Reversing and remanding, the California Supreme Court concluded that “the court’s discharge of Juror No. 5 for failing to deliberate is not manifestly supported by the evidence on which the court actually relied.” (People v. McGhee (Cal., Apr. 3, 2025) 17 Cal.5th 612.)

https://www4.courts.ca.gov/opinions/documents/S169750.PDF

Anti-SLAPP Motion Properly Denied Because Allegations Based on Lease, Not Protected Activity.

After spending eight months renovating commercial property, plaintiff opened an ice cream parlor. Months later, a fire destroyed the property. The Pasadena Fire Department’s report stated the fire originated in a rear storage room, there were no fire stops in the walls of the storage room, the property did not have functioning fire protection or alarm systems, and the fire was caused by an electrical failure within the wall. The lessee, plaintiff, sued the lessor and the management company, defendants, for failure to ensure the property was equipped with electrical and fire prevention systems that were in good working condition. In response, the lessor and management company notified plaintiff lessee and his insurance carrier that under the terms of the lease he was required to defend and indemnify the lessor and management company. Shortly thereafter, the lessor and management company sued the lessee in a cross-complaint for comparative indemnity and other causes of action. Plaintiff’s insurance company agreed to defend lessor and management company. Plaintiff moved to strike the cross-complaint pursuant to the anti-SLAPP statute, Code of Civil Procedure § 425.16. The trial court granted the motion in part and denied it in part. On appeal, plaintiff/cross-defendant contended defendant’s/cross-complainants’ allegations arose out of the protected activity of plaintiff filing the lawsuit. And defendants/cross-complainants contended its allegations arose out of the non-protected activity of breaching the lease’s indemnity provision. Affirming denial of part of the motion to strike, the Court of Appeal stated: “[W]e agree with [the lessor and management company] that its challenged cross-claims do not arise out of [lessee’s] protected activity.” Regarding the lessor and management company’s contention the trial court erred in granting part of plaintiff/cross-defendant’s anti-SLAPP motion, the Court of Appeal noted that the management company failed to appeal from that portion of the trial court’s order. The Court of Appeal also concluded the trial court did not abuse its discretion in denying plaintiff’s’/cross-defendant/s request for attorney fees. (Gumarang v. Braemer on Raymond, LLC (Cal. App. 2nd Dist., Div. 8, Apr. 3, 2025) 110 Cal.App.5th 370.)

https://www4.courts.ca.gov/opinions/documents/B323083.PDF

Parent Contended School District Should Have Informed Her of Her Child’s Preferred Name and Pronouns.

A school district’s policy prohibits refusing to address a student by a name and the pronouns consistent with the student’s gender identity, and also prohibits “revealing a student’s transgender status to individuals who do not have a legitimate need for the information, without the student’s consent.” Citing 42 U.S.C. § 1983, a mother sued the school district because its policy deprived the mother of due process in that the school began using her child’s preferred name and pronoun without informing her. The district court dismissed the mother’s action. On appeal, the Ninth Circuit noted the “‘fundamental right of parents to make decisions concerning the care, custody, and control of their children.’ [Citations.] But this broad parental right is not absolute; it must ‘bow to other countervailing interests and rights, such as the basic independent life and liberty rights of the child and of the State acting as parens patriae.’” The Ninth Circuit vacated dismissal of the action and sent it back to the lower court to “carefully parse the Policy’s terms on remand.” (Regino v. Staley (9th Cir., Apr. 4, 2025) 133 F.4th 951.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/04/04/23-16031.pdf

Mental Health Diversion.

The superior court denied a man’s request for mental health diversion pursuant to Penal Code § 1001.36 despite the fact the man had satisfied the statutory requirement of having been diagnosed with a qualifying mental health disorder within the previous five years. The court recognized the diagnosis gave rise to a presumption the man’s mental health disorder was a significant factor in the commission of the offense, but denied diversion because it found that the statutory presumption had been overcome by clear and convincing evidence that petitioner’s mental disorder was not a motivating factor, causal factor, or contributing factor to his involvement in the alleged offenses. Issuing a writ of mandate, the Court of Appeal stated: “The court’s finding was based only on the absence of evidence to support the finding that petitioner’s mental disorder was a motivating, causal, or contributing factor to his involvement in the offenses. That finding does not constitute substantial evidence from which a reasonable factfinder could have found it highly probable that petitioner’s mental disorder was not a motivating, causal, or contributing factor to his involvement in the alleged offenses.” (Lacour v. Superior Court of Sacramento County (Cal. App. 3rd Dist., Apr. 4, 2025) 110 Cal.App.5th 391.)

https://www4.courts.ca.gov/opinions/documents/C101343.PDF

Moore/Marsden Percentage Interest Calculated at a Different Time than When the Value of the Property Is Calculated.

In re Marriage of Moore (1980) 28 Cal.3d 366, and In re Marriage of Marsden (1982) 130 Cal.App.3d 426, hold that the community acquires a pro tanto interest in a party’s separate property when community property is used to reduce the principal balance of a mortgage on the property. Here, the Court of Appeal held: “[T]he community’s pro tanto percentage interest is calculated as of the time of the parties’ separation, while the value of the property is generally determined as near as practicable to the time of trial.” (In re Marriage of Alan and Freeman (Cal. App. 4th Dist., Div. 3, Apr. 4, 2025) 110 Cal.App.5th 406.)

https://www4.courts.ca.gov/opinions/documents/G064552.PDF

Sexual Harassment Verdict Reversed for Error in Admitting “Me-Too” Evidence.

Plaintiff is a tenured college professor. She sued the Los Angeles Community College District and the vice-president of student services under the Fair Employment and Housing Act (Gov. Code, § 12940 et seq.; FEHA) for sexual harassment and other claims. A jury returned a $10 million verdict against defendants. Reversing, the Court of Appeal stated: “We reverse the judgment, not for lack of substantial evidence, but for prejudicial errors in the admission of irrelevant and damaging ‘me-too’ evidence from a witness who was not similarly situated to plaintiff, and for the equally prejudicial and erroneous admission of 20-year-old newspaper articles and other evidence of the alleged harasser’s misdemeanor convictions.” (Odom v. Los Angeles Community College District (Cal. App. 2nd Dist., Div. 8, Apr. 7, 2025) 110 Cal.App.5th 470.)

https://www4.courts.ca.gov/opinions/documents/B327997.PDF

Detainees Entitled to Some Due Process.

The President issued Proclamation No. 10903, invoking the Alien Enemies Act (Rev. Stat. § 4067, 50 U.S.C. § 21; AEA) to detain and remove Venezuelan nationals “who are members of TdA.” Tren de Aragua (TdA) is an entity the state department has designated as a foreign terrorist organization. Five detainees and a putative class sought injunctive and declaratory relief against the implementation of, and their removal under, the proclamation. The District Court for the District of Columbia issued two temporary restraining orders (TROs) preventing any removal of the named plaintiffs and preventing removal under the AEA of a provisionally certified class consisting of “[a]ll noncitizens in U.S. custody who are subject to” the proclamation. The government sought vacatur of the orders in the U.S. Supreme Court. The nation’s highest court held: “We grant the application and vacate the TROs. [¶] . . . [¶] . . . [T]he detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal.” (Trump v. J. G. G. (2025) 145 S.Ct. 1003.)

https://www.supremecourt.gov/opinions/24pdf/24a931_2c83.pdf

PAGA Claim Excluded from Arbitration.

The trial court denied defendant’s motion to compel arbitration of plaintiff’s individual claims to recover civil penalties under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698, et seq.; PAGA). The arbitration agreement excluded “representative claims under [PAGA].” The trial court denied the motion based on a finding that the parties’ arbitration agreement specifically excluded all PAGA claims. Affirming, the Court of Appeal stated: “The issue presented in this appeal is one of contract interpretation, i.e., whether the parties’ arbitration agreement requires arbitration of Ford’s PAGA claims. For purposes of this appeal, there is no dispute that while the arbitration agreement generally applies to all employment-related disputes, it specifically excludes “representative claims under [PAGA].” The parties disagree on how to interpret this exclusion. [¶] . . . [¶] . . . [W]e conclude the parties’ intended the exclusionary clause to exclude any PAGA claim brought by Ford acting as a representative of the state, and not only PAGA claims premised on code violations suffered by other employees.” (Ford v. The Silver F, Inc. (Cal. App. 3rd Dist., Apr. 8, 2025) 110 Cal.App.5th 553.)

https://www4.courts.ca.gov/opinions/documents/C099113.PDF

Claim for Childhood Sexual Abuse Dismissed Because Same Claim Previously Litigated to Finality. 

In 2009, the trial court dismissed plaintiffs’ action against for childhood sexual assaults under the then-existing statute of limitations. Relying on the revival provisions of Code of Civil Procedure § 340.1, plaintiffs again sued defendants in 2022 for the same childhood sexual assaults. The trial court overruled defendant’s demurrer to the 2022 complaint. Issuing a writ of mandate, the Court of Appeal held that this claim for derivative liability against a principal was previously litigated to finality for purposes of § 340.1, subdivision (q). (Doe 3 v. Superior Court of Santa Clara County (Cal. App. 6th Dist., Apr. 9, 2025) 110 Cal.App.5th 571.)

https://www4.courts.ca.gov/opinions/documents/H051868.PDF

Illegally Removed Immigrant Ordered Returned to United States. 

On March 15, 2025, the United States removed Kilmar Armando Abrego Garcia from the United States to El Salvador, where he is currently detained in the Center for Terrorism Confinement. The district court ordered that Abrego Garcia be returned by April 7. The U.S. Supreme Court stayed that order. On April 10, the nation’s highest court lifted the stay, stating: “The order properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” In a separate statement, Justices Sotomayor, Kagan, and Jackson noted: “The Government remains bound by an Immigration Judge’s 2019 order expressly prohibiting Abrego Garcia’s removal to El Salvador because he faced a ‘clear probability of future persecution’ there and ‘demonstrated that [El Salvador’s] authorities were and would be unable or unwilling to protect him.’” (Noem v. Abrego Garcia (U.S., Apr. 10, 2025) 145 S.Ct. 1017.)

https://www.supremecourt.gov/opinions/24pdf/24a949_lkhn.pdf

Workers’ Compensation Is Exclusive Remedy for Worker Injured While Improving House.

Defendant homeowner employed plaintiff to make improvements on his home. Soon thereafter, plaintiff fell from a ladder and was injured. Plaintiff sued defendant for negligence, and defendant moved for summary judgment. The trial court granted summary judgment, finding plaintiff’s injuries were exclusively covered by workers’ compensation. The Court of Appeal noted the central question was the meaning of Labor Code § 3352, subdivision (a)(8)(A)’s language excluding from workers’ compensation coverage a worker whose employment “was, or was contracted to be, for less than 52 hours.” Affirming, the Court of Appeal stated: “When employment is contracted to be for more than 52 hours, the exclusion in section 3352(a)(8)(A) does not turn on the fortuity of how many hours into that employment a worker is when they are injured.” (Padron v. Osoy (Cal. App. 2nd Dist., Div. 1, Apr. 11, 2025) 110 Cal.App.5th 677.)

https://www4.courts.ca.gov/opinions/documents/B333512.PDF

No Subject Matter Jurisdiction for Federal Arbitration Confirmation. 

After the trial court compelled plaintiff’s defamation claim to arbitration, plaintiff added an additional defamation claim against Elon Musk. The arbitrator ultimately issued an award for Tesla and Musk. On appeal from confirmation of the award, plaintiff contended the district court lacked jurisdiction to confirm the award on the ground that the U.S. Supreme Court’s opinion in Badgerow v. Walters (2022) 596 U.S. 1, prohibits looking past the face of a petition under 9 U.S.C. § 9 to establish jurisdictional facts. Reversing with an order to dismiss for lack of subject matter jurisdiction, the Ninth Circuit stated: “[T]he Federal Arbitration Act (“FAA”) ‘bestow[s] no federal jurisdiction but rather requir[es]’ that parties seeking relief under the FAA establish ‘an independent jurisdictional basis’ for a federal court’s jurisdiction. [¶] . . . [¶] . . . [Tesla and Musk] went to the district court to confirm a zero-dollar award dismissing [plaintiff’s] libel claims. On its face, a petition to confirm a zero-dollar award cannot support the amount in controversy requirement. Consequently, because jurisdictional facts establishing the amount in controversy requirement are not found on the face of the petition, and a court cannot ‘look through’ the petition to the underlying substantive controversy under Section 9, we hold that the district court did not have subject matter jurisdiction.” (Tesla Motors, Inc. v. Balan (9th Cir., Apr. 14, 2025) 134 F.4th 558.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/04/14/22-16623.pdf

Unlawful Detainer Plaintiffs’ Pleading Mistake. 

In unlawful detainer cases, plaintiffs misdescribed themselves as California limited liability companies rather than Delaware limited liability companies. Arguing that this pleading defect deprived the trial court of fundamental jurisdiction because a legally nonexistent entity has no capacity to sue, defendants cited Oliver v. Swiss Club Tell (1963) 222 Cal.App.2d 528, for the proposition that all judicial action taken in these cases was void ab initio. The trial court entered eviction judgments. On appeal, defendants contended the trial court lacked fundamental jurisdiction to enter the judgments. Reversing and remanding, the Court of Appeal stated: “We will reverse and remand so that, if they wish to do so, respondents may pursue curative amendments under Code of Civil Procedure section 473, subdivision (a)(1). We take no view as to whether such a motion should be granted.” (1215 Fell SF Owner LLC v. Fell St. Automotive Clinic (Cal. App. 1st Dist., Div. 4, Apr. 14, 2025) 110 Cal.App.5th 739.)

https://www4.courts.ca.gov/opinions/documents/A171441.PDF

Online Website Users Never Agreed to Arbitration. 

Defendant operates a website that connects users with subject-matter experts. Plaintiffs accessed defendant’s website to get answers to questions. They created accounts and paid between $1–$5 to ask those questions. Under the terms of service, paying for answers to those initial questions automatically enrolled them in a recurring monthly subscription that cost between $46–$60 per month. Plaintiffs brought this putative class action, alleging that defendant violated the Electronic Funds Transfer Act (15 U.S.C. § 1693 et seq.) and California and other states’ consumer protection laws by enrolling them in the monthly subscription service without their consent and making cancellation difficult. Defendant moved to compel arbitration. The district court denied defendant’s motion, holding that plaintiffs did not receive sufficient notice of defendant’s terms of service containing the arbitration clause, and as a result, no contract was formed. Affirming, the Ninth Circuit stated: “Plaintiffs were not on inquiry notice of JustAnswer’s proposed contractual terms. So no contract was formed, and Plaintiffs never agreed to arbitrate their claims.” (Godun v. JustAnswer LLC (9th Cir., Apr. 15, 2025) 2025 WL 1160684.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/04/15/24-2095.pdf

Constitutional Challenge to City’s Process Outside the Scope of Administrative Claims Requirements. 

Plaintiffs filed this action for a writ of mandate against the City of Azusa, alleging the city violated article XIII D of the California Constitution by charging sewer and trash franchise fees that exceeded the cost of providing those services and by using the fees collected to fund general city services. The city argued plaintiffs failed to exhaust their administrative remedies because they did not follow the statutory procedures, which require them to pay the fees under protest and file a claim for a refund. The trial court agreed with the city and entered judgment in its favor. Reversing, the Court of Appeal stated: “Because the Carachures’ constitutional challenge to the City’s collection and use of franchise fees seeks relief outside the scope of the statutory claims procedure for refunds, we reverse.” (Carachure v. City of Azusa (Cal. App. 2nd Dist., Div. 7, Apr. 15, 2025) 110 Cal.App.5th 776.)

https://www4.courts.ca.gov/opinions/documents/B336778.PDF

Contractor Followed Substitution Procedures in Public Contract. 

The Orange County Transportation Authority awarded a contract to defendant (OC defendant) to complete improvements to Interstate 405 in a design-build transportation project. Defendant subsequently awarded certain subcontracting work to plaintiff under Public Contract Code § 6826. The parties ultimately disagreed over the scope of the subcontract work and never executed a written subcontract. After defendant contracted with a different subcontractor, plaintiff initiated the underlying action seeking benefit of the bargain damages. Plaintiff claimed, inter alia, that OC defendant did not comply with section 4107’s substitution procedures before substituting another subcontractor. The trial court granted summary judgment for defendant. Affirming, the Court of Appeal stated: “We conclude the trial court did not err in finding section 4107’s substitution procedures did not apply to OC defendant’s substitution of [plaintiff].” (Golden State Boring & Pipe Jacking, Inc. v. Astaldi Construction Corporation (Cal. App. 4th Dist., Div. 3, Apr. 16, 2025) 110 Cal.App.5th 805.)

https://www4.courts.ca.gov/opinions/documents/G062891.PDF

U.S. Supreme Court Clarifies Part of ERISA Concerning Fiduciaries.

The Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.; ERISA) prohibits ERISA plan fiduciaries from causing a plan to enter into certain transactions with parties in interest in § 1106. A separate part of the statute, § 1108(b)(2)(A), exempts from § 1106’s prohibitions any transaction that involves “[c]ontracting or making reasonable arrangements with a party in interest for office space, or legal, accounting, or other services necessary for the establishment or operation of the plan, if no more than reasonable compensation is paid therefor.” The question presented was whether, to state a claim under § 1106, a plaintiff must plead that § 1108(b)(2)(A) does not apply to an alleged transaction between a plan and a party in interest. The U.S. Supreme Court held: “The answer is no. The Court holds that § 1108 sets out affirmative defenses, so it is defendant fiduciaries who bear the burden of pleading and proving that a § 1108 exemption applies to an otherwise prohibited transaction under § 1106.” (Cunningham v. Cornell University (U.S., Apr. 17, 2025) 145 S.Ct. 1020.)

https://www.supremecourt.gov/opinions/24pdf/23-1007_h3ci.pdf

Trial Court Did Not Err in Denying Request to Seal Record of Restraining Order. 

Plaintiff obtained a restraining order against defendant in a proceeding at which defendant was not present. Defendant later appeared, arguing he had not received notice of plaintiff’s restraining order request, and the request was without merit. The trial court terminated the restraining order. Defendant then moved to seal the entire record of the restraining order proceedings, contending the court record negatively impacted background checks as he applied for jobs. The trial court denied defendant’s request to seal the record. Affirming, the Court of Appeal stated: “Although the sealing rules are based on federal constitutional principles, they provide an independent, statutory right of public access to court records. The unambiguous language of those rules creates a broad presumption of public access to all superior court records with only limited exceptions, none of which applies in the instant case.” (Marino v. Rayant (Cal. App. 2nd Dist., Div. 1, Apr. 18, 2025) 110 Cal.App.5th 846.)

https://www4.courts.ca.gov/opinions/documents/B337874.PDF

Dismissal for Lack of Personal Jurisdiction Reversed by En Banc Court.

Plaintiff, a resident of the state of California, alleged that defendant Shopify, a Canadian corporation, installed “cookies” on his device and gathered and disseminated information about him without his knowledge and consent. Defendant allegedly tracked plaintiff’s device’s physical location and collected data regarding his online shopping activity. Plaintiff filed a class action against Shopify and Shopify USA in federal court, alleging violation of California’s data privacy and access laws and constitute unfair and deceptive practices as well as invasion of privacy under both the U.S. and California Constitutions. The lower court dismissed the action for lack of personal jurisdiction, which a 3-judge panel of the Ninth Circuit affirmed. Reversing upon a rehearing, the Ninth Circuit en banc court stated: “Shopify concedes that its geolocation technology allowed it to know that Briskin’s device was located in California when it installed cookies on Briskin’s device.” (Briskin v. Shopify, Inc. (9th Cir., Apr. 21, 2025) 2025 WL 1154075.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/04/21/22-15815.pdf

Requirements for an Enforceable Release Met. 

Plaintiff suffered injuries from a punch inflicted by a third party during an altercation in the restricted pit area at Bakersfield Speedway. Plaintiff alleged defendants were negligent in failing to provide reasonable security, adequately responding to the altercation, and undertaking reasonable rescue efforts. The trial court granted summary judgment for defendants because plaintiff had signed a release. On appeal, plaintiff contended the release was unenforceable because the injury-producing act of negligence was not reasonably related to the purpose for which he signed the release, which he described as observing the race up close from the restricted pit area while it was occurring. Affirming, the Court of Appeal stated: “We conclude the requirements for an enforceable release have been met: (1) . . . a clear, unambiguous and explicit expression of the parties’ intent to release all liability for plaintiff’s injury; (2) the alleged acts of negligence . . . reasonably related to the object or purpose for which the release was given; and (3) the release does not contravene public policy.” (Diamond v. Schweitzer (Cal. App. 5th Dist., Apr. 21, 2025) 110 Cal.App.5th 866.)

https://www4.courts.ca.gov/opinions/documents/F086150.PDF

Revocable Waivers of Meal Period Enforceable. 

Plaintiffs sued defendant, their former employer, in a class action, alleging defendant failed to provide them with the meal periods required by Labor Code § 512 and Industrial Welfare Commission Wage Order Nos. 4-2001 and 5-2001. Defendant asserted plaintiffs signed a valid written agreement that prospectively waived all waivable meal periods throughout plaintiffs’ employment with defendant, which agreement could be revoked at any time. The trial court granted defendant’s motion for summary adjudication. Affirming, the Court of Appeal stated: “We conclude the revocable, prospective waivers Plaintiffs signed are enforceable in the absence of any evidence the waivers are unconscionable or unduly coercive. . . . We also conclude Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker) does not require a contrary result. Accordingly, we affirm.” (Bradsbery v. Vicar Operating, Inc. (Cal. App. 2nd Dist., Div. 7, Apr. 21, 2025) 110 Cal.App.5th 899.)

https://www4.courts.ca.gov/opinions/documents/B322799.PDF

The U.S. Supreme Court Decided How to Calculate a Deadline in an Immigration Case. 

The government may detain and deport an individual after properly determining he is unlawfully present in this country. But, under 8 U.S.C. § 1229c(b)(2), the government will sometimes delay detention and deportation for up to “60 days” to allow those of “good moral character” to leave the country on their own terms. When it comes to many other deadlines in immigration law, if the final day permitted for taking an action falls on a weekend or legal holiday, the deadline rolls over to the next business day. The question for the U.S. Supreme Court was whether § 1229c(b)(2)’s 60-day voluntary-departure deadline works that same way. The nation’s highest court held: “Here, as elsewhere, the term ‘days’ operates to extend a deadline that falls on a weekend or legal holiday to the next business day.” (Monsalvo Velazquez v. Bondi  (U.S., Apr. 22, 2025) 145 S.Ct. 1232.)

https://www.supremecourt.gov/opinions/24pdf/23-929_h3ci.pdf

Plaintiff Could Not Pursue PAGA Claim Due to Statute of Limitations. 

The Private Attorneys General Act (Lab. Code, § 2698 et seq.; PAGA) authorizes an “aggrieved employee” to step into the shoes of the State of California and sue for civil penalties premised on certain violations of the Labor Code “on behalf of himself or herself and other current or former employees.” To be a PAGA plaintiff (under the statutes in effect prior to July 1, 2024), a private individual must, among other things, seek to recover civil penalties on his own behalf for that violation. Here, the trial court barred plaintiff from pursing a PAGA claim solely to recover penalties on behalf of current and former employees because the action was not filed within the statute of limitations. Affirming, the Court of Appeal agreed with the trial court sustaining defendant’s demurrer and also stated: “In light of our holding that Williams’s PAGA action is barred by the statute of limitations, we have no occasion to reach Williams’s further arguments regarding why he has standing under PAGA notwithstanding the untimeliness of his individual claims.” (Williams v. Alacrity Solutions Group, LLC (Cal. App. 2nd Dist., Div. 5, Apr. 22, 2025) 110 Cal.App.5th 932.)

https://www4.courts.ca.gov/opinions/documents/B335445.PDF

Hot Pursuit. 

Deputy Todd Underhill of the San Bernardino County Sheriff’s Department gave chase when the driver of a truck feloniously failed to heed his instruction to stop. The suspect eventually parked near plaintiff’s home, got out of the truck, and ran. Underhill followed on foot but lost sight of the suspect somewhere near the rear of the house. While waiting for backup, he searched the surrounding area but did not find the suspect. When another officer arrived, Underhill explained that he thought the suspect could be inside the house and that the house’s backdoor was unlocked. After questioning the legality of their entry, plaintiff allowed the officers to search for the suspect who turned out to be plaintiff’s roommate, whom the officers quickly found. Plaintiff sued under 42 U.S.C. § 1983 for unreasonable search in violation of the Fourth Amendment. The lower court granted summary judgment for defendants, reasoning, in relevant part, that no Fourth Amendment violation occurred because the hot-pursuit exception to the warrant requirement applied. Affirming, the Ninth Circuit stated: “In sum, on this record there is no genuine issue of material fact suggesting that the continuity of the chase was broken before Underhill entered Plaintiff’s home.” (Newman v. Underhill (9th Cir., Apr. 23, 2025) 134 F.4th 1025.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/04/23/24-1493.pdf

DMV Hearing Officer Held Not Acting as an Advocate in Hearing. 

The Department of Motor Vehicles (DMV) initiated proceedings to suspend plaintiff’s driver’s license because he refused to submit to chemical testing after being arrested for driving under the influence. A DMV hearing officer suspended his license. The superior court held the DMV hearing officer acted as both an advocate for the DMV as well as a hearing officer and set aside the suspension. Reversing, the Court of Appeal stated: “[W]e agree with the DMV that the hearing officer was merely collecting and developing evidence, not advocating, which is constitutionally permissible.” (Romane v. Department of Motor Vehicles (Cal. App. 4th Dist., Div. 1, Apr. 23, 2025) 2025 WL 1176570.)

https://www4.courts.ca.gov/opinions/documents/D083569.PDF

No Class Action Under the Public Records Act. 

Plaintiff unsuccessfully tried several times to receive documents from a city under the California Public Records Act (Gov. Code, § 7920.000 et seq.; CPRA) while using the method laid out on the city’s website. Eventually, she brought a class action against the city. The trial court dismissed the case. Affirming in part and reversing in part, the Court of Appeal said, “the trial court correctly interpreted the statutory language of [Government Code] section 7923.000 as precluding plaintiff from pursuing class relief for a CPRA violation.” However, the appeals court held the complaint allegations were sufficient for plaintiff to pursue her individual claim. (Di Lauro v. City of Burbank (Cal. App. 2nd Dist., Div. 5, Apr. 23, 2025) 2025 WL 1174462.)

https://www4.courts.ca.gov/opinions/documents/B334408.PDF

No Arbitration Under FINRA.

Four individuals, alleged victims of a Ponzi scheme, sued Oppenheimer & Co. Inc., because Oppenheimer is a Financial Industry Regulatory Authority (FINRA) member, and FINRA Rule 12200 obligates FINRA members to arbitrate the claims of customers upon request. In an underlying case, the individuals, who are the defendants in the instant case, brought their action in one of FINRA’s arbitral forums. In the instant case, Oppenheimer sought a declaration that defendants were not its customers and therefore not entitled to arbitration. The district court entered a permanent injunction prohibiting defendants from arbitrating their claims. On appeal, defendants contended that even if they were not customers of Oppenheimer, they purchased their investments from “associated persons” of Oppenheimer, a man named Woods, who was associated with Oppenheimer. Affirming, the Ninth Circuit stated: “[W]e find that Defendants could be entitled to arbitrate their claims against Oppenheimer if they could demonstrate that they transacted with Woods. Nevertheless, we agree with the district court that Defendants did not transact with Woods because they purchased their investments from Woods’s associate, and not from Woods himself.” (Oppenheimer & Co. Inc. v. Mitchell (9th Cir., Apr. 24, 2025) 2025 WL 1187017.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/04/24/24-2379.pdf

Damages for Willful Injury to the Person or Property of Another Is Invalid Under Civil Code § 1668. 

Plaintiff alleged defendant intentionally undercut its business by secretly promising to replicate its popular barbeque sauce and sell it directly to Trader Joe’s. In 2015, plaintiff and defendant entered a contract that included a provision prohibiting defendant from reverse engineering plaintiff’s barbeque sauce. The contract also contained a provision that limited the parties’ possible damages. The district court dismissed the case based on a clause limiting damages in a manufacturing contract between the parties. The Ninth Circuit asked the California Supreme Court whether a contract clause that substantially limits damages for intentional wrongdoing is invalid under Civil Code § 1668, which provides: “All 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 property of another, or violation of law, whether willful or negligent, are against the policy of the law.” California’s high court answered the question: “We hold that a limitation on damages for willful injury to the person or property of another is invalid under section 1668.” (New England Country Food, LLC v. Vanlaw Food Products, Inc. (Cal., Apr. 24, 2025) 2025 WL 1190980.)

https://www4.courts.ca.gov/opinions/documents/S282968.PDF

To Follow Statute Would Be “Unintended, Unjust, and Absurd.” 

A 17-year-old criminal defendant was found guilty of attempted voluntary manslaughter. His co-defendant was found guilty of the greater crime of attempted murder. They both filed a petition for resentencing under Penal Code § 1172.6. As to the co-defendant who was convicted of the greater crime, the People conceded he was entitled to relief, and he was released from prison. As to defendant, the People conceded that they likely could not prove him guilty under current laws; however, because the crime of attempted manslaughter is not specifically mentioned in § 1172.6, the People argued he was statutorily ineligible for relief. The court denied his petition and he was sent back to prison. Granting relief, the Court of Appeal stated: “It is undisputed that had the victim died, Luu would be eligible for relief under section 1172.6. Further, had the jury found Luu guilty of attempted murder (rather than the lesser included crime of attempted manslaughter), Luu would also be statutorily eligible for relief under the statute. We find this result to be unintended, unjust, and absurd.” (People v. Luu (Cal. App. 4th Dist., Div. 3, Apr. 24, 2025) 2025 WL 1189508.)

https://www4.courts.ca.gov/opinions/documents/G063066.PDF

Some of Husband’s ERISA Accounts Awarded to Wife. 

As part of the division of marital property, the family court assigned four of husband’s Employment Retirement Income Security Act (29 U.S.C. § 1001 et seq.; ERISA) accounts to wife pursuant to a Qualified Domestic Relations Order (QDRO) after the court found the husband breached his fiduciary duty to wife. Affirming, the Court of Appeal stated: “We find ‘marital property rights’ includes hidden and squandered community property obligations owed by one spouse to another, that the new orders comply with ERISA’s QDRO provisions making them appropriate to use for enforcing collection on [wife]’s award, and that the California laws [husband] cites to support his arguments are either preempted by ERISA or do not invalidate the orders.” (In re Marriage of DeBenedetti and Ensburg (Cal. App. 4th Dist., Div. 1, Apr. 24, 2025) 2025 WL 1189730.)

https://www4.courts.ca.gov/opinions/documents/D082801.PDF

Summary Judgment Should Not Have Been Granted in Slip and Fall Case. 

Plaintiff tripped on a pothole in a shopping center parking lot. The shopping center moved for summary judgment in plaintiff’s tort action based on a contract between the shopping center and plaintiff’s employer, a tenant in the shopping center. That contract relieved the shopping center for its negligent acts. The trial court granted summary judgment for the shopping center. Reversing, the Court of Appeal stated: “The usual rule is that you must agree to a contract to be bound by it. (Civ. Code, § 1565.)” (De La Cruz v. Mission Hills Shopping Center, LLC (Cal. App. 2nd Dist., Div. 8, Apr. 28, 2025) 2025 WL 1218040.)

https://www4.courts.ca.gov/opinions/documents/B333182.PDF

U.S. Supreme Court Explained a Medicare Provision. 

The Medicare provision at issue here prescribes a percentage used to calculate the rate that the government will pay a hospital that treats a disproportionate share of low-income Medicare patients. The U.S. Supreme Court ruled: “Today, we hold that a person is entitled to such benefits when she is eligible to receive a cash payment during the month of her hospitalization.” (Advocate Christ Medical Center v. Kennedy (U.S., Apr. 29, 2025) 145 S.Ct. 1262.)

https://www.supremecourt.gov/opinions/24pdf/23-715_5426.pdf

Police Found Negligent in Death of Man. 

Several callers in an apartment complex called 911 about an unarmed man, wearing pajama pants and no shirt, who was having a “psychotic meltdown” and bleeding from a head wound. He was knocking on doors, yelling to himself, and fighting a tree. Two deputies responded and requested medical assistance. The man was speaking incoherently from a sitting position in an alcove. The man abruptly rose and advanced toward the police. One deputy used a taser and the man fell to the ground. They struggled to handcuff the man, and a deputy had his knee on the man’s back. Approximately 45 seconds after the handcuffing, the man’s movements stopped. He began to make “grunting” or “moaning” noises, and the deputy lifted his knee from the man’s back. The man’s movements stopped, and he died the following day. His family sued and a jury returned a mixed verdict that the deputies had not used excessive force or restraint against the man under the Fourth Amendment but had acted negligently under California law. The district court entered judgment for plaintiffs, the man’s family, and denied defendants’ request for judgment in their favor. Affirming, the Ninth Circuit stated: “The jury could have determined from the evidence at trial that the deputies did not apply excessive force after Niedzialek was handcuffed but nevertheless breached their duty of care when they failed to monitor his condition or place him in a recovery position as he lay unresponsive and in a prone position for over four minutes.” (Alves v. County of Riverside (9th Cir., Apr. 29, 2025) 2025 WL 1227942.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/04/29/23-55532.pdf

Military Reservist Entitled to Differential Pay When Called to Active Duty During a National Emergency. 

Plaintiff was a federal civilian employee working as an air traffic controller. In July 2012, the Coast Guard ordered him to active-duty service and, for the most part, he remained on active duty until February 2017. When the military calls those reservists to active duty, it often pays them less than they earn in their civilian jobs. Seeking to address that gap, Congress some years ago adopted a “differential pay” statute. That law requires the government to make up the difference between a federal civilian employee’s military and civilian pay in various circumstances, including when he is called to active duty “during a national emergency.” (5 U.S.C. § 5538(a) and 10 U.S.C. § 101(a)(13)(B).) The government refused to give plaintiff that differential pay. The U.S. Supreme Court stated the issue in this case: “At its core, the dispute before us turns on the meaning of the phrase “during a national emergency.” Does that language promise differential pay to certain federal civilian employees called to active-duty service while a national emergency is ongoing, as Mr. Feliciano argues? Or does it require a reservist to prove some additional, substantive connection between his service and a particular national emergency, as the Federal Circuit held and the government contends? Several considerations persuade us that Mr. Feliciano’s interpretation is the sounder one. [¶] . . . [¶] . . . A federal civilian employee called to active duty pursuant to ‘any other provision of law . . . during a national emergency’ is entitled to differential pay without having to prove that his service was substantively connected in some particular way to some particular emergency.” (Feliciano v. Department of Transportation (U.S., Apr. 30, 2025) 145 S.Ct. 1284.)

https://www.supremecourt.gov/opinions/24pdf/23-861_7lh8.pdf

Plaintiff’s Appeal Dismissed After Attempt to Retroactively Create Appellate Jurisdiction. 

Arguing the death knell doctrine, which provides an exception to the general rule that interlocutory orders are not immediately appealable, plaintiff appealed from an order denying his motion for class certification in a putative wage and hour class action brought against defendants. After the order was entered, plaintiff’s individual claims and four representative causes of action under the Private Attorney General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA) remained pending. Defendants contended the appeal had to be dismissed for lack of jurisdiction because the death knell doctrine does not apply when representative PAGA claims remain pending after the trial court denied class certification. In response, over a year after filing his appeal, plaintiff voluntarily dismissed his PAGA claims without prejudice in the trial court. The Court of Appeal described the issue before it: “We are therefore confronted with a novel jurisdictional question: Can a putative class action plaintiff unilaterally ring the death knell for the entire class and retroactively create appellate jurisdiction by voluntarily dismissing all remaining representative claims long after class certification has been denied?” The appeals court held: “Chavez is attempting to appeal a nonappealable order, as his PAGA claims remained viable and pending at the time he filed his notice of appeal. His voluntary dismissal of the remaining PAGA claims over a year later was not itself appealable and did not retroactively make the class certification order appealable. We therefore conclude the death knell doctrine does not apply here, and we do not have jurisdiction to entertain Chavez’s appeal from the order denying class certification. Any appeal of the class certification order must now await entry of a final judgment disposing of all claims. Accordingly, we dismiss the appeal for lack of jurisdiction.” (Chavez v. Hi-Grade Materials Co. (Cal. App. 4th Dist., Div. 1, Apr. 30, 2025) 2025 WL 1231999.)

https://www4.courts.ca.gov/opinions/documents/D085178.PDF

Trial Court Erred in Applying Code of Civil Procedure Instead of Probate Code. 

Real Party in Interest filed a petition under the Probate Code contesting amendments to a trust. Two days before a noticed hearing, which was more than four months after the petition was served, the trustee filed a demurrer. The trial court overruled the demurrer as untimely pursuant to Code of Civil Procedure § 430.40, subdivision (a), which requires a demurrer to be filed within 30 days after service of the complaint. The trustee petitioned for a writ of mandate to vacate the trial court’s order, arguing the trial court erred by applying the Code of Civil Procedure here because the Probate Code articulates the timing for filing a demurrer in probate proceedings. (Prob. Code, § 1043, subd. (a).) The Court of Appeal agreed with the trustee and issued a writ of mandate, stating: “[W]e hold a demurrer to a petition brought under the Probate Code must be filed at or before the initial hearing. Goebner’s demurrer, filed two days before the initial hearing, was timely.” (Goebner v. Superior Court of San Mateo County (Cal. App. 1st Dist., Div. 3, Apr. 30, 2025) 2025 WL 1244451.)

https://www4.courts.ca.gov/opinions/documents/A171241.PDF

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