Litigation

Litigation Update: June 2025

Litigation Section Litigation Update

A 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, Jacquelyn Young

Our Updates:

It’s Against Public Policy to Relieve City of Liability for Negligently Violating a Statutory Duty Relating to Public Safety. 

Before a charity event during which the participants rode bicycles, plaintiff signed a release and waiver that included a provision discharging the ride organizers, as well as any public entities providing facilities for the ride, from any liability for negligence. Civil Code § 1668 renders unlawful any contract that seeks, “directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent.” Plaintiff was injured during the ride and sued the city for breach of its statutory duty under Government Code § 835 to maintain a safe roadway for public use. The trial court granted summary judgment for the city, and the Court of Appeal affirmed based on a release and waiver of liability that plaintiff signed. Reversing, the California Supreme Court concluded that “such a release is ‘against the policy of the law’ under Civil Code section 1668 . . . to the extent it purports to relieve the City of liability for negligently violating a statutory duty relating to public safety.” (Whitehead v. City of Oakland (Cal., May 1, 2025) 17 Cal.5th 735.)

https://www4.courts.ca.gov/opinions/documents/S284303.PDF

No Workers’ Compensation for Injuries Sustained in Carpool While Going Home from Work.

This original proceeding concerns the application of the so-called “going and coming rule,” which generally provides that workers’ compensation benefits are not available for an injury sustained during an employee’s commute. Here, the Workers’ Compensation Appeals Board determined that under both the “special risk” and “dual purpose” exceptions to the going and coming rule, workers’ compensation coverage applied to injuries a worker sustained while riding home in a vanpool arranged by another employee. Annulling and remanding the board’s decision, the Court of Appeal stated: “Because we agree with [the workers’ compensation insurer] that the exceptions relied upon by the Board do not apply, we annul the Board’s order and remand for further proceedings consistent with this opinion.” (Zenith Insurance Company v. Workers’ Compensation Appeals Board (Cal. App. 3rd Dist., May 1, 2025) 110 Cal.App.5th 1164.)

https://www4.courts.ca.gov/opinions/documents/C101549.PDF

Writ of Habeas Corpus Denied. 

Claiming ineffective assistance of counsel, a death penalty defendant filed a writ of habeas corpus, which the district court denied. In 1987, defendant shot a cab driver twice in the head and got away with $250. During the penalty phase of the trial, he told the jury that they had better “pray to God I don’t get out,” and that there were other crimes, which they didn’t know about, for which he could be executed “five times.” The jury convicted the defendant of first-degree murder, robbery, and other felonies, and sentenced him to death. The district court denied his petition for habeas relief. The Ninth Circuit ruled: “After decades of litigation, we affirm the district court’s denial of his habeas petition on all grounds.” (Bejarano v. Reubart (9th Cir., May 2, 2025) 136 F.4th 873.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/02/11-99000.pdf

Plaintiff Permitted to Withdraw from Arbitration When Defendant Did Not Timely Pay Arbitration Fees.

Plaintiff filed a class action against her former employer, alleging wage and hour claims under the Labor Code and a cause of action under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). Pursuant to the parties’ arbitration agreement, the trial court granted defendant’s motion to compel arbitration of plaintiff’s individual Labor Code and PAGA claims and stayed the representative PAGA cause of action pending completion of the arbitration. Defendant failed to pay $54,000 in fees and costs billed by the arbitrator within 30 days of the payment deadline as mandated by Code of Civil Procedure § 1281.98, subdivision (a)(1). Plaintiff then filed a motion in the trial court to vacate the order compelling arbitration and to proceed in the trial court. The trial court denied the motion, concluding that § 1281.98 was preempted by the Federal Arbitration Act (9 U.S.C. § 1 et seq.; FAA). Plaintiff filed a petition for writ of mandate in the Court of Appeal. Issuing a writ of mandate, the appeals court stated: “We agree with the numerous Courts of Appeal that have concluded section 1281.98 furthers the goal of the FAA to require expeditious arbitration of disputes and, accordingly, the section is not preempted by the FAA. . . . [¶] . . . The plain language of section 1281.98 vests in the employee or consumer the unilateral right upon the drafting party’s failure to timely pay fees to withdraw from the arbitration and proceed in court.” (Sanders v. Superior Court of Los Angeles County (Cal. App. 2nd Dist., Div. 7, May 6, 2025) 110 Cal.App.5th 1304.)

https://www4.courts.ca.gov/opinions/documents/B340707.PDF

Preliminary Injunction Against Microsoft Denied.

The acquisition of Activision Blizzard, Inc., a video game developer, by Microsoft Corporation was the subject of an administrative proceeding before the Federal Trade Commission (FTC). In its administrative complaint, the FTC asserted that the merger would likely violate § 7 of the Clayton Act (15 U.S.C. § 18) by substantially lessening competition in various relevant markets. The district court denied the FTC’s request for a preliminary injunction. Affirming, the Ninth Circuit stated: “Given the FTC’s failure to make an adequate showing as to its likelihood of success on the merits as to any of its theories, the district court properly denied the FTC’s motion for a preliminary injunction on that basis.” (Federal Trade Commission v. Microsoft Corporation (9th Cir., May 7, 2025) 136 F.4th 954.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/07/23-15992.pdf

It Is Not Clearly Established that Public Officials’ Adverse Treatment of a Spouse for Husband’s Speech Violated First Amendment. 

Plaintiff and his husband both worked at a public university. The husband engaged in whistleblowing activity. Bringing an action against the university and some of its officials, plaintiff contended he was harassed and then fired from his job in retaliation for his husband’s whistleblowing speech in violation of the First Amendment. At the motion to dismiss stage, the officials invoked qualified immunity, arguing that First Amendment protection of public employees from retaliation because of a relative’s speech is not clearly established. The district court agreed and dismissed the complaint. Affirming, the Ninth Circuit stated: “The Officials are entitled to qualified immunity, as it was not clearly established at the time of [plaintiff’s] termination in June 2019 that the Officials’s [sic] adverse treatment of [plaintiff] on account of his husband’s speech violated the First Amendment. In so holding, we leave for another day the merits of the underlying constitutional question—whether a public employee has constitutional protection from retaliation based on a close family member’s speech, in this case a family member who is also a public employee.” (DeFrancesco v. Robbins (9th Cir., May 7, 2025) 136 F.4th 933.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/07/23-16147.pdf

The Rooker-Feldman Doctrine Did Not Deprive the District Court of Jurisdiction.

In a federal action, plaintiffs contended a county failed to provide social services required by state law and made false and misleading statements to the state court resulting in termination of parental rights. The district court dismissed the case under the Rooker-Feldman doctrine (Rooker v. Fidelity Trust Co. (1923) 263 U.S. 413; D.C. Ct. of Appeals v. Feldman (1983) 460 U.S. 462), finding that plaintiffs were seeking relief from the state court judgments and declined to exercise jurisdiction over state law claims. Reversing, the Ninth Circuit stated: “Although the plaintiffs’ lawsuit may suffer from other infirmities, most notably preclusion, the Rooker-Feldman doctrine did not deprive the district court of jurisdiction.” (Miroth v. County of Trinity (9th Cir., May 8, 2025) 136 F.4th 1141.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/08/23-15759.pdf

Arbitration Waived.

Parties moving for arbitration filed a complaint in superior court, and while in court sought two forms of preliminary injunctive relief, opposed a demurrer, propounded more than 700 discovery requests, demanded a jury trial in their case management conference statement, represented they would be litigating substantive motions, and posted jury fees. It was not until the opposing party filed a cross-complaint that the litigants filed the motion to compel arbitration—more than six months into the litigation. The Court of Appeal affirmed the trial court’s order denying the motion to compel arbitration, concluding the moving parties’ conduct constituted a waiver under Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562. (Hofer v. Boladian (Cal. App. 2nd Dist., Div. 5, May 9, 2025) 111 Cal.App.5th 1.)

https://www4.courts.ca.gov/opinions/documents/B339542.PDF

Primary Carrier Contended Excess Carriers Fraudulently Concealed Why They Made Payments. 

After an insured exhausted its primary policy limits, it gave notice of the lawsuits against it to its excess carriers. The excess carriers began to indemnify and pay for defense of lawsuits against the insured. After that, the insured discovered it had another primary policy. At that point, the excess carriers sought contribution from the newly discovered primary carrier. The primary contributed but later learned the excess carriers had no obligation under the policies to pay for certain expenses but made a business decision to do so anyway. The primary carrier thereafter sued the excess carriers for fraudulent concealment. The trial court found for the excess carriers. Reversing and remanding for a new trial, the Court of Appeal stated: “Having misunderstood Truck’s concealment theory, the court precluded consideration of that claim and addressed the misrepresentation claim only.” (Truck Insurance Exchange v. Federal Insurance Company (Cal. App. 2nd Dist., Div. 8, May 12, 2025) 111 Cal.App.5th 62.)

https://www4.courts.ca.gov/opinions/documents/B332397.PDF

Mother Shot and Killed by Deputy in Front of Her Small Children. 

A guardian ad litem filed suit on behalf of decedent’s minor children, arising from a heartbreaking incident in which a deputy sheriff shot and killed a mother while her young children looked on. The case was all the more emotional because at one point, one of the children stood between the mother and the deputy with outstretched hands and yelled, “Stop!” The child attempted to intervene after the mother, who had been behaving in a manner that concerned residents in the neighborhood, unsheathed a knife while yelling and then screaming at law enforcement. A lead deputy explained she was not in trouble and implored her to talk with him, but the mother rejected repeated requests to drop the knife and ultimately advanced quickly toward a backup deputy while raising the knife. The backup deputy discharged a taser in an effort to use less-lethal force, but when that did not stop the mother from advancing with the knife, the lead deputy fired his service pistol, killing the mother. Through a guardian ad litem, the children sued the officers. The trial court granted summary judgment for the officer who used deadly force. The officer who used less-than-deadly force sought extraordinary relief in the Court of Appeal. Issuing a writ of mandate ordering the court to dismiss the case against the other officer as well, the Court of Appeal stated: “[W]e need to assess reasonableness from the perspective of a reasonable officer at the scene. Such a standard recognizes the split-second decisions officers must make in dangerous environments. [¶] Based on our review of the record in this case, including the videos of the circumstances surrounding the officer-involved shooting, we conclude the backup deputy acted reasonably as a matter of law.” (County of Nevada v. Superior Court of Nevada County (Cal. App. 3rd Dist., May 12, 2025) 111 Cal.App.5th 85.)

https://www4.courts.ca.gov/opinions/documents/C101966.PDF

Equitable or Legal Relief Under the Unruh Act. 

Plaintiff is a woman with disabilities who uses a wheelchair. Along with her husband, she frequents California hotels to test their compliance with disability access laws. On one such testing trip, they visited a hotel in Burbank. When they arrived, however, architectural barriers allegedly deterred plaintiff from entering. She sued the hotel’s owner, asserting violations of Title III of the Americans with Disabilities Act (42 U.S.C. § 12181 et seq., ADA) and California’s Unruh Civil Rights Act (Civ. Code, § 51 et seq.). Because the Unruh Act only permits statutory damages if the plaintiff personally encountered a violation or was deterred by it, the district court converted the scheduled jury trial to a bench trial. Plaintiff petitioned the Ninth Circuit, asking it to direct the lower court to conduct a jury trial. Issuing a writ of mandate, the Ninth Circuit stated: “The statutory damages in section 52(a) of the Unruh Act are thus a legal remedy. Because both the historical analog and the nature of the remedy reveal that Brooke’s claim is legal, we hold that the Seventh Amendment entitles parties in federal court to a jury trial on a claim for statutory damages under section 52(a) of the Unruh Act.” (In re: Tsay JBR LLC (9th Cir., May 13, 2025) 136 F.4th 1176.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/13/24-5234.pdf

A Court Can Compel Federal Agency Action.

Starting in 2016, the U.S. government used a metering policy regarding persons who want to enter the U.S. Under the metering policy, whenever border officials deemed a port of entry to be at capacity, they turned away all people lacking valid travel documents. The district court entered a permanent injunction prohibiting application of the policy. The Ninth Circuit affirmed the lower court’s conclusion that the metering policy violated section 706(1) of the Administrative Procedure Act, which provides that the court shall “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). The government acknowledged that border officials have a mandatory duty to process noncitizens, including allowing them to apply for asylum but contended that the metering policy did not violate § 706(1) because border officials lack any duty to noncitizens who have not stepped across the border. With regard to the government’s contention that even if the officials’ mandatory duty extends to such noncitizen, the metering policy did not constitute withholding of that duty within the meaning of § 706(1), the Ninth Circuit stated: “When an action is delayed, one expects that, with the passage of time (maybe even an unreasonable amount of time), the action eventually will be completed. By contrast, when an action has been withheld, no amount of waiting can be expected to change the situation. With patience, one can wait out delay, but even with superhuman patience, one cannot wait out withholding.” (Al Otro Lado v. Executive Office for Immigration Review (9th Cir., May 14, 2025) 2024 WL 5692756.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/14/22-55988.pdf

“Moment-of-Threat” Doctrine Rejected by U.S. Supreme Court.

A police officer (Felix) in Houston received a radio alert about a car on the road with outstanding toll violations. He soon spotted the car and pulled it over. After the driver (Barnes) could not produce either a driver’s license or proof of insurance, Felix ordered him to get out of the car, with his right hand resting on his holster. Barnes opened the door but did not exit; instead, he turned the ignition back on. Felix unholstered his gun and, as the car began to move forward, jumped onto its doorsill. He twice shouted, “Don’t fucking move.” And with no visibility into the car (because his head was above the roof), he fired two quick shots inside. Barnes was hit but managed to stop the car. Felix then radioed for backup. By the time it arrived, Barnes was dead. Barnes’ mother sued pursuant to 42 U.S.C. § 1983. The district court granted summary judgment for Felix, and the appeals court affirmed. Vacating judgment for Felix, and remanding the matter back to the courts below, the U.S. Supreme Court stated: “The question here is whether that framework permits courts, in evaluating a police shooting (or other use of force), to apply the so-called moment-of-threat rule used in the courts below. Under that rule, a court looks only to the circumstances existing at the precise time an officer perceived the threat inducing him to shoot. Today, we reject that approach as improperly narrowing the requisite Fourth Amendment analysis. To assess whether an officer acted reasonably in using force, a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment. [¶] . . . [¶] . . . It is for them now to consider the reasonableness of the shooting, using the lengthier timeframe we have prescribed.” (Barnes v. Felix (U.S., May 15, 2025) 145 S.Ct. 1353.)

https://www.supremecourt.gov/opinions/24pdf/23-1239_onjq.pdf

Younger Abstention.

Yelp, a company that publishes consumer reviews of businesses, asked a federal district court in California to halt the Texas Attorney General’s civil enforcement action against Yelp in Texas state court concerning Yelp’s since-withdrawn consumer notice for crisis pregnancy centers. The Texas Attorney General maintained that Yelp’s consumer notice was misleading. Yelp maintained that the Texas Attorney General is pursuing Yelp in retaliation for the company’s expressed views about abortion. The California district court dismissed Yelp’s action. The Ninth Circuit agreed with the lower court that, with certain limited exceptions not found here, federal courts should not interfere with actions in state courts under Younger v. Harris (1971) 401 U.S. 37. (Yelp Inc. v. Paxton (9th Cir., May 15, 2025) 2025 WL 1404272.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/15/24-581.pdf

Summary Judgment Reversed in Failure to Investigate Child Abuse Report by County.

When plaintiff was a child, his teacher reported suspected child abuse at home. The county did not investigate. Plaintiff sued the county for breach of its mandatory duty to evaluate, investigate and cross-report alleged child abuse pursuant to Government Code § 815.6. The trial court granted summary judgment for the county. Reversing, the Court of Appeal stated: “[E]ven if social workers are required to cross-report only those allegations determined to meet the definitions of abuse or neglect, there is still a triable issue of fact in this case as to whether the County violated a mandatory duty by failing to cross-report the referral.”(Holman v. County of Butte (Cal. App. 3rd Dist., May 12, 2025) 2025 WL 1409878.)

https://www4.courts.ca.gov/opinions/documents/C101517.PDF

No Qualified Immunity for Police Chase Death and Injuries.

A group of innocent bystanders were injured by a driver who lost control of his car and crashed into them because of a high-speed car chase by the police. Plaintiffs sued two police officers, claiming that the officers violated plaintiffs’ substantive due process rights in two ways: by initiating and conducting the chase for the purpose of harming the fleeing suspect; and by failing either to call for emergency services or to render aid after the crash. Assessing only the pleadings, the district court ruled that the officers were not entitled to qualified immunity. Affirming, the Ninth Circuit Court of Appeals stated: “In the highly unusual circumstances of this case—including plausible allegations that the officers intentionally caused harm for reasons unrelated to any legitimate law enforcement purpose connected to the chase, and that they witnessed the crash yet drove away and later stated that they hoped that the crash caused a fatality—we affirm.” (Estate of Soakai v. Abdelaziz (9th Cir., May 16, 2025) 2025 WL 1417105.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/16/23-4466.pdf

Removals Under the Alien Enemies Act Without Due Process. 

A. A. R. P. and W.M.M. are two detainees identified by the Trump Administration as Venezuelan nationals and members of Tren de Aragua (TdA), a designated foreign terrorist organization. The President has invoked the Alien Enemies Act (Rev. Stat. § 4067, 50 U. S. C. § 21; AEA), to remove them from the United States. On April 17, 2025, the district court denied their motion for a temporary restraining order (TRO) against their removal under the AEA. Hours later, they and the class they represent were told they would be removed “tonight or tomorrow.” They immediately moved for an emergency TRO, which was denied on April 18. They appealed to the Fifth Circuit, which denied their request for relief. Granting an injunction, but not addressing any issues on their merit, the U.S. Supreme Court stated: “To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated.” (A. A. R. P. v. Trump (U.S., May 16, 2025) 145 S. Ct. 1364.)

https://www.supremecourt.gov/opinions/24pdf/24a1007_g2bh.pdf

Similar Semi-Naked Instagram Photos Not Copyright Infringement. 

Plaintiff, a freelance artist and model, posted semi-naked photographs of himself in different poses on Instagram. Defendant, better known as the recording artist Lil Nas X, also has an Instagram account—and he, too, shared semi-naked photos of himself in varying poses. Plaintiff sued defendant for copyright infringement, alleging that several photos on defendant’s Instagram page were too similar to those from his own profile. The district court dismissed the action. Affirming, the Ninth Circuit stated: “For a copyright claim, a plaintiff must show, among other things, (1) the copying of copyrighted material and (2) the unlawful appropriation of it. Woodland has not plausibly alleged either. . . . While some elements from the photos appear superficially similar, the Copyright Act protects only the ‘selection’ and ‘arrangement’ of individual elements in a photo. . . . And here, the ‘selection’ and ‘arrangement’ in the photos are not substantially similar.” (Woodland v. Hill (9th Cir., May 16, 2025) 136 F.4th 1199.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/16/23-55418.pdf

Trial Court Abused Its Discretion in Not Issuing Preliminary Injunction Against School Board’s Resolution Prohibiting Teachers from Teaching About Race.

Teachers and students sued a school district and five members of the district’s school board, seeking to enjoin the school board’s implementation of “Resolution No. 2022–23/21”, which prohibits district educators from using “Critical Race Theory or other similar frameworks . . . as a source to guide how topics related to race will be taught.” The resolution prohibits five enumerated elements of “Critical Race Theory” (CRT) and eight enumerated doctrines derived from CRT. The trial court denied plaintiffs’ motion for preliminary injunctive relief. The Court of Appeal noted the resolution prevents teachers from teaching what California law requires them to teach. It also seemed perplexed at the school district’s reference to Jim Crow as a historical figure, when it was in fact a pejorative term referring to a Black man played by a white man in blackface. Reversing, the Court of Appeal stated: “We find the trial court abused its discretion because its analysis was premised on the incorrect conclusion that the Resolution does not violate Plaintiffs’ constitutional rights, and the court ignored the entirety of Plaintiffs’ evidence documenting the [d]istrict teachers’ ongoing harm.” (Mae M. v. Komrosky (Cal. App. 4th Dist., Div. 3, May 19, 2025) 2025 WL 1431928.)

https://www4.courts.ca.gov/opinions/documents/G064332.PDF

No Actual or Constructive Notice of Alleged Dangerous Condition of Public Property. 

Plaintiff contended the wheels of her skateboard were caught in a “deep crack”/“pothole” in the street surface, which “catapulted” her off her skateboard. She described the crack/pothole as “approximately 6–9 inches in length, 1–2 inches deep, and 4–7 inches wide.” Plaintiff also claimed she had never before seen the crack/pothole, despite having traveled the street by various means “hundreds of times” before. The trial court granted summary judgment for the city. Affirming, the Court of Appeal found plaintiff did not establish the city had actual or constructive notice of the alleged dangerous condition, noting: “Plaintiff’s argument remains devoid of reference to any evidence that the city had actual or constructive notice of the dangerous condition . . . . [¶] Her sweeping assertion that the city ‘was generally aware’ of cracks in the street does not begin to establish that it had notice of the large crack/pothole on Noriel Lane plaintiff claims caused her to fall.” (Restivo v. City of Petaluma (Cal. App. 1st Dist., Div. 1, May 20, 2025) 2025 WL 1443132.)

https://www4.courts.ca.gov/opinions/documents/A169918.PDF

Student Loan Debt Collection.

Cross-complainant took out a student loan in 2007, but stopped making payments in 2009. In 2017, cross-defendant purchased the loan, and in 2022 it sued cross-complainant for non-payment. Cross-complainant responded by filing crossclaims against cross-defendant and four others for violating state and federal debt collection statutes. Cross-defendants in turn filed motions to strike the cross-claims under Code of Civil Procedure § 425.16, the anti-SLAPP statute, which the trial court granted. The Court of Appeal affirmed in part and reversed in part, stating: “[W]e reverse the judgment, reinstate [cross-complainant’s] cross-claims for suing to collect a time-barred debt, his cross-claims under the Rosenthal Act [(Civ. Code, §§ 1788–1788.337)] and the FDCPA [(Fair Debt Collection Practices Act; 15 U.S.C. § 1692 et seq.)] for making false and misleading representations, and his cross-claim claim under PSLCRA [(Private Student Loan Collections Reform Act; Civ. Code, § 1788.200 et seq.)] for failing to allege compliance with that statute, but otherwise affirm the striking of [cross-complainant’s] cross-claims.” (Guracar v. Student Loan Solutions, LLC (Cal. App. 6th Dist., May 20, 2025) 2025 WL 1450706.)

https://www4.courts.ca.gov/opinions/documents/H051407.PDF

Companies With Government Contracts May Be Convicted of Fraudulent Inducement.

Petitioners are painting companies who had entered into Pennsylvania government contracts in Philadelphia that required the participation of a disadvantaged business. Petitioners represented they would obtain materials from a qualifying supplier to comply with the contractual terms but did not do so. Petitioners were then charged with, and convicted of, wire fraud/fraudulent inducement under 18 U.S.C. § 1343. The U.S. Supreme Court stated the issue before it: “We must decide whether this theory is consistent with §1343, which reaches only those schemes that target traditional money or property interests.” Affirming, the nation’s highest court stated: “Fraudulent inducement ‘has long been considered a species of actionable fraud.’” (Kousisis v. United States (U.S., May 22, 2025) 145 S. Ct. 1382.)

https://www.supremecourt.gov/opinions/24pdf/23-909_f2q3.pdf

Deadlock on U.S. Supreme Court on Constitutionality of Religious Public Charter School. 

Justice Barrett took no part in this U.S. Supreme Court decision which stated only: “The judgment is affirmed by an equally divided Court.”

The petition, filed by the Oklahoma Attorney General stated that the Oklahoma Supreme Court ruled that the state may exclude from its public schools privately run, statewide virtual charter schools open to all students when they are sectarian, and that the court’s ruling violated the law.

Respondents’ brief stated: “The Oklahoma Supreme Court held that petitioners could not establish a public charter school that ‘fully incorporate[s] Catholic teachings into every aspect of the school, including its curriculum and co-curricular activities.’ [] The question presented is: Whether the First Amendment requires the State of Oklahoma to establish, fund, and oversee religious public charter schools because it establishes, funds, and oversees nonreligious public charter schools.” (Oklahoma Statewide Charter School Board v. Drummond ex rel. Oklahoma (U.S., 2025) 145 S.Ct. 1381.)

https://www.supremecourt.gov/opinions/24pdf/24-394_9p6b.pdf

No Showing ERISA Trustees Breached Duty of Prudence or Loyalty.

Plaintiff brought a putative class action under the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.; ERISA) against the trustees of Intel Corporation’s proprietary retirement funds. He alleged that the trustees breached their duty of prudence by investing some of the funds’ assets in hedge funds and private equity funds. He also alleged that they breached their duty of loyalty by steering retirement funds to companies in which Intel’s venture-capital arm, Intel Capital, had already invested. The district court dismissed plaintiff’s claims, concluding that he had not plausibly alleged a breach of either fiduciary duty. Affirming, the Ninth Circuit stated: “All Anderson presented was the potential for conflicts of interest, with nothing more. The district court was correct to hold that Anderson did not adequately plead a claim of breach of the duty of loyalty.” (Anderson v. Intel Corporation Investment Policy Committee (9th Cir., May 22, 2025) 2025 WL 1463295.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/22/22-16268.pdf

Hostile Work Environment Cost LAPD Big Time.

Plaintiff is a captain in the Los Angeles Police Department (LAPD). She learned that a photo of a topless woman falsely said to be her was being electronically circulated among LAPD personnel. One of her subordinates told her he had seen on-duty officers looking at the photo on a cellphone and making lewd comments about her. He also told her “everywhere he went” officers were talking about plaintiff and the photo. Plaintiff asked the department to notify its employees that the photo was not of her, and to order that they stop sharing it. The department declined to do so. Its own investigation later confirmed that the photo, intended to depict plaintiff, was distributed throughout the department. Plaintiff sued the City of Los Angeles, asserting a single cause of action for hostile work environment due to sexual harassment under the Fair Employment and Housing Act (Govt. Code, § 12900 et seq.). A jury found in plaintiff’s favor, determining she experienced severe or pervasive harassment and that the LAPD failed to take immediate and appropriate corrective action despite knowing of the conduct. It awarded her $4 million in noneconomic damages. Affirming, the Court of Appeal stated: “We conclude substantial evidence supported the jury’s determination that [plaintiff] endured severe or pervasive harassment that altered the conditions of her workplace, based on her secondhand knowledge that the photo was widely circulating around the Department.” (Carranza v. City of Los Angeles (Cal. App. 2nd Dist., Div. 7, May 23, 2025) 2025 WL 1482443.)

https://www4.courts.ca.gov/opinions/documents/B327196.PDF

“Eleanor” Is Not Copyrightable. 

“Eleanor” is a collection of Ford Mustangs featured across four films, most recently in Gone in 60 Seconds (2000). Plaintiffs argued that Eleanor is copyrightable. The district court held on summary judgment that Eleanor was not entitled to character copyright protection. Primarily affirming, the Ninth Circuit stated: “Appellants’ argument stalls at the starting line: we hold that Eleanor is not a character, much less a copyrightable one[,]” because it (1) lacks physical and conceptual qualities; (2) lacks consistent, identifiable traits; and (3) is not especially distinctive. (Carroll Shelby Licensing, Inc. v. Halicki (9th Cir., May 27, 2025) 2025 WL 1499052)

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/05/27/23-3731.pdf

Settlement Proceeds Stolen by a Fraudster: Which Party Bears the Burden of the Loss?

After plaintiff and defendants settled a personal injury lawsuit for $475,000, an unknown third party purporting to be plaintiff’s counsel sent “spoofed” emails to defendants’ counsel providing fraudulent wire instructions for the settlement proceeds. Plaintiff’s counsel’s email address was jcmattson@cnlegalgroup.com. About a week after the settlement, defense counsel received wiring instructions from jmattson@cnlegalrgroup.com. Note that the “c” is missing from the fraudster’s email address and an “r” was added to the domain name. Defendants’ counsel wired the settlement proceeds to the fraudulent account and the third party absconded with the funds. Once the fraud was discovered, plaintiff asked for the settlement money, but defendants refused to pay. Plaintiff applied ex parte to enforce the settlement agreement. The trial court entered judgment for plaintiff in the amount of $475,000, because the evidence showed that defendants were in the better position to prevent the fraud and there was no comparative fault on plaintiff’s part. Affirming the judgment, the Court of Appeal stated: “[T]his case demonstrates that parties to modern, high-tech financial transactions must remain vigilant in ensuring they are dealing with their authentic peer. Failing to do so may be at their own financial peril.” (Thomas v. Corbyn Restaurant Development Corp (Cal. App. 4th Dist., Div. 1, May 27, 2025) 2025 WL 1499055.)

https://www4.courts.ca.gov/opinions/documents/D083655.PDF

Hospital’s Attempt to Collect Patient’s Uninsured Motorist Benefits as a Condition of Admission for Emergency and Ongoing Care Held Unenforceable.

Plaintiff hospital treated a Medi-Cal-insured patient for injuries sustained in an automobile accident. The patient received both emergency and ongoing care from plaintiff. Plaintiff requires patients or their family members to sign conditions of admissions (COAs) when it provides emergency medical care. The COAs contain an assignment of benefits (AOB) with language that assigns to the hospital direct payment of uninsured and underinsured motorist (UM) benefits that would otherwise be payable to those patients under their automobile insurance policies. Here, the patient’s policy with defendant insurance company included UM coverage. Plaintiff sought to collect payment for the patient’s treatment directly from the insurance company out of her UM benefits at rates above the rates Medi-Cal would pay. Defendant insurance company did not pay the hospital and instead settled a claim to collect UM benefits with the patient. The hospital sued the insurance company seeking damages and injunctive and declaratory relief to enforce the AOB. The trial court sustained defendant insurance company’s demurrer without leave to amend because the AOB was unenforceable. Affirming, the Court of Appeal stated: “(1) the COAs remain contracts of adhesion; (2) it is not within the reasonable expectation of a Medi-Cal patient that a COA will contain an assignment of UM benefits to the facility providing him or her with emergency care, particularly an assignment that allows the hospital to collect its full bill without ever presenting a bill to Medi-Cal; and (3) that, therefore, the AOB contained in the COA was unenforceable.” (Dameron Hospital Association v. Progressive Casualty Insurance Company (Cal. App. 3rd Dist., May 27, 2025) 2025 WL 1502017.)

https://www4.courts.ca.gov/opinions/documents/C099467.PDF

Demurrer to Plaintiff’s PAGA Claim Should Not Have Been Sustained on Statute of Limitations Ground.

Plaintiff former employee sued defendant employer for purported violations of the Labor Code. He asserted five individual and class claims and a sixth representative Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA) claim. The trial court dismissed his class claims, sent his individual claims to arbitration, and sustained defendant’s demurrer to his PAGA claim without granting leave to amend. It concluded that plaintiff lacked standing to bring the PAGA claim because he did not suffer a Labor Code violation during the one-year statute of limitations period for recovering civil penalties. Plaintiff challenged that conclusion on appeal, contending he is an aggrieved employee with standing to assert a representative PAGA claim. Reversing, the Court of Appeal agreed with plaintiff, stating: “In concluding otherwise, the trial court erroneously grafted requirements related to PAGA’s one-year statute of limitations for recovering civil penalties onto the definition of ‘aggrieved employee.’” (Osuna v. Spectrum Security Services, Inc. (Cal. App. 2nd Dist., Div. 6, May 27, 2025) 2025 WL 1501995.)

https://www4.courts.ca.gov/opinions/documents/B338047.PDF

Lower Court Required Too Much in Environmental Impact Statement.

The U.S. Surface Transportation Board considered a proposal by a group of seven Utah counties for the construction and operation of an approximately 88-mile railroad line in northeastern Utah. The new railroad line would facilitate the transportation of crude oil from Utah to refineries in Louisiana, Texas, and elsewhere. For that proposed 88-mile Utah railroad line, the board prepared an extraordinarily lengthy environmental impact statement (EIS), spanning more than 3,600 pages of environmental analysis. But the D.C. Circuit nonetheless faulted the EIS for not sufficiently considering the environmental effects of projects separate from the railroad line itself. On that basis, the D. C. Circuit vacated the board’s EIS and the board’s approval of the 88-mile railroad line. As a result, construction still has not begun even though the board approved the project back in December 2021. Reversing, the U.S. Supreme Court stated: “First, the D. C. Circuit did not afford the Board the substantial judicial deference required in NEPA [(National Environmental Policy Act; 42 U.S.C. §§ 4321 et seq.)] cases. Second, the D. C. Circuit ordered the Board to address the environmental effects of projects separate in time or place from the construction and operation of the railroad line. But NEPA requires agencies to focus on the environmental effects of the project at issue. Under NEPA, the Board’s EIS did not need to address the environmental effects of upstream oil drilling or downstream oil refining. Rather, it needed to address only the effects of the 88-mile railroad line. And the Board’s EIS did so.” “Simply stated, NEPA is a procedural cross-check, not a substantive roadblock. The goal of the law is to inform agency decisionmaking, not to paralyze it.” (Seven County Infrastructure Coalition et al. v. Eagle County, Colorado (U.S., May 29, 2025) 2025 WL 1520964.)

https://www.supremecourt.gov/opinions/24pdf/23-975_m648.pdf

Election Officials Arbitrarily Excluded Signatures on Initiative Petition.

The Court of Appeal evaluated procedures employed by election officials to validate signatures on an initiative petition to determine whether the initiative should be placed on the ballot. The appeals court concluded election officials reasonably excluded some signatures, but arbitrarily rejected some, stating: “Election officials, however, acted arbitrarily in rejecting signatures due to some misspellings, illegibility, or nonstandard abbreviations. Such irregularities will not automatically disqualify a signature if the signer’s voter registration record can be located and their identity as a registered voter is verifiable by comparing the information in the petition with the information in the voter registration record.” (San Diego Public Library Foundation v. Fuentes (Cal. App. 4th Dist., Div. 1, May 29, 2025) 2025 WL 1537650.)

https://www4.courts.ca.gov/opinions/documents/D084135.PDF

The Permit Streamlining Act. 

The Legislature passed the Permit Streamlining Act to “ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects.” (Govt. Code, § 65920 et seq.) But a county required supplemental information before it would issue a permit. The applicant filed a petition for writ of mandate that the superior court denied. The Court of Appeal reversed in part and affirmed in part, stating: “On appeal, Old Golden Oaks contends the catch-all provision in the county’s encroachment permit submittal checklist violates the Permit Streamlining Act because it does not ‘specify in detail’ the information required for a development project application. We agree. But the county may still condition the completeness of the grading permit application on the additional environmental information because the submittal checklist for the grading permit informed Old Golden Oaks that its project must comply with California Environmental Quality Act [(Pub. Resources Code, § 21000 et seq; CEQA)].“ (Old Golden Oaks LLC v. County of Amador (Cal. App. 3rd Dist., May 30, 2025) 2025 WL 1540531.)

https://www4.courts.ca.gov/opinions/documents/C099948.PDF

Cutting Attorney Fees: The Experienced Trial Judge Is the Best Judge of the Value of Professional Services.

The trial court reduced the attorney-fee award for a prevailing plaintiff by an “across-the-board” 30-percent cut based on “unreasonable padding,” “duplicative” work, and unnecessary work by the plaintiff’s attorneys. The Court of Appeal asked itself, “Are such findings, without more, sufficient to uphold a percentage reduction to a fee award?” and answered its question as follows: “Until recently, appellate courts in California uniformly ‘review[ed] attorney fee awards on an abuse of discretion standard’ [citation] and would infer findings and defer to a trial court’s ‘general observation that an attorney overlitigated a case’ or otherwise overcharged for fees [citation]. Recently, however, a handful of California courts have employed ‘heightened scrutiny’—imported from federal cases interpreting a federal civil rights statute . . . . Importing the federal standard . . . is inconsistent with our State’s longstanding policy that ‘[t]he “experienced trial judge is the best judge of the value of professional services rendered in [their] court.”’ [Citation.] We accordingly affirm the reduced attorney fee award for the plaintiff in this case.” (Cash v. County of Los Angeles (Cal. App. 2nd Dist., Div. 5, May 30, 2025) 2025 WL 1540542.)

https://www4.courts.ca.gov/opinions/documents/B336980.PDF

Sanctions for Gamesmanship During Deposition . . . After the Case Settled. 

A party subpoenaed a witness for a remote deposition. The witness’s lawyer refused to turn on his webcam or otherwise make himself visible during the deposition, and the party filed a motion to compel compliance with the subpoena, requesting sanctions under Code of Civil Procedure § 2016.010, et seq. Before the motion was heard, the case settled, rendering the motion moot. The moving party nonetheless argued sanctions were warranted to reimburse her for the expenses she incurred due to counsel’s “gamesmanship during the deposition.” The trial court ordered the witness to pay the party $9,981. The Court of Appeal affirmed. (Agnone v. Agnone (Cal. App. 2nd Dist., Div. 3, May 30, 2025) 2025 WL 1540539.)

https://www4.courts.ca.gov/opinions/documents/B321252A.PDF

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