Litigation Update: April 2021

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, Reuben Ginsburg, Jessica Riggin, David Williams, Ryan H. Wu, and Greg Wolff.
Whether a PAGA Case Should Proceed May Not Be Decided in Private Arbitration.

Plaintiffs are drivers for defendant transportation company. When hired, plaintiffs entered into an arbitration agreement, requiring arbitration by JAMS. Plaintiffs waived their rights to bring a class action, and the agreement states the arbitrator will decide all procedural and substantive issues involving the dispute. JAMS rules provide that issues of arbitrability will be decided by the arbitrator. Plaintiffs brought suit against defendant in a single cause of action pursuant to the Private Attorneys General Act (Lab. Code, § 2699 et seq.; PAGA). The trial court ordered the case into arbitration, ruling the arbitrator should decide whether plaintiffs are entitled to raise PAGA claims. Plaintiffs sought extraordinary relief in the Court of Appeal. Holding that the preliminary question of whether petitioners are aggrieved employees under PAGA may not be decided in private party arbitration, the Court of Appeal issued a peremptory writ of mandate directing the trial court to vacate its order granting arbitration, and to issue a new order denying arbitration. (Contreras v. Superior Court of Los Angeles County (Cal. App. 2nd Dist., Div. 5, Mar. 1, 2021) 61 Cal.App.5th 461.)

Evidence of Watching Pornographic Videos.

A criminal defendant grabbed a sleeping homeless woman and dragged her down an alley, where he spent an hour beating and raping her anally. The defendant testified on his own behalf. On cross-examination, the defendant said he was “[n]ot into anal sex at all” and had “never been interested in anal sex.” The prosecution then filed a motion to allow admission of evidence of oral and anal sex pornography accessed on the defendant’s phone. The court ruled that the search history from the day before and the day of the crime was admissible. The court ordered that a printout of the search history be sanitized to include only the time the videos were accessed and their general topics (e.g., “oral” or “anal”) and excluded the titles of the videos. The court did not permit the jury to view the videos. Among other crimes, the jury convicted him of kidnapping to commit rape, oral copulation, or sodomy, and sodomy by use of force, and the court sentenced him to 17 years and 8 months in state prison. On appeal, he argued that the court abused its discretion when it admitted evidence he watched pornographic videos. Affirming, the Court of Appeal stated: “Videos depicting oral and anal intercourse were relevant to Byers’s motive and intent when he kidnapped Jane Doe. They also impeached his testimony that he was not ‘into’ or ‘interested in’ the type of sexual contact the victim testified he committed.”  (People v. Byers (Cal. App. 2nd Dist., Div. 6, Mar. 1, 2021) 61 Cal.App.5th 447.)

“Courts should be extremely deferential to public health authorities,” California Court of Appeal.

The trial court enjoined the order of the County of Los Angeles banning outdoor restaurant dining until the county performed a risk-benefit analysis acceptable to the court. Almost immediately, the Court of Appeal stayed enforcement of the injunction. Issuing a peremptory writ of mandate directing the trial court to vacate its injunction order, the appeals court stated: “We now hold that courts should be extremely deferential to public health authorities, particularly during a pandemic, and particularly where, as here, the public health authorities have demonstrated a rational basis for their actions. Wisdom and precedent dictate that elected officials and their expert public health officers, rather than the judiciary, generally should decide how best to respond to health emergencies in cases not involving core constitutional freedoms.” (County of Los Angeles Department of Public Health v. Superior Court of Los Angeles County (Cal. App. 2nd Dist., Div. 4, Mar. 1, 2021) 61 Cal.App.5th 478.)

Freedom of Information Act Requests; Exemption 5 Applies to Consultants.

To ensure greater transparency in the operation of government agencies, the Freedom of Information Act mandates disclosure of nearly all agency records upon request, unless the records fall within one of nine exemptions. (5 U.S.C. § 552(b)(1)–(9); FOIA.) Exemption 5 provides that FOIA’s disclosure requirements do not apply to “interagency or intra-agency memorandums or letters that would not be available by law to a party . . . in litigation with the agency.” The Ninth Circuit had to determine whether the term “intra-agency” means more than the fact that the author and recipient are employees of the same agency and also includes documents prepared by outside consultants hired by the agency to assist in carrying out the agency’s functions. The Ninth Circuit stated: “We join six of our sister circuits in adopting the latter reading of ‘intra-agency,’ dubbed by some the ‘consultant corollary’ to Exemption 5.” (Rojas v. Federal Aviation Administration (9th Cir., Mar. 2, 2021) 989 F.3d 666.)

No Interest on Insurance Proceeds Held in Escrow.

A fire destroyed plaintiff’s home. His hazard insurance policy jointly paid him and his mortgage lender, the defendant, $1,342,740 total. The deed of trust allowed defendant to hold the insurance proceeds in escrow and to disburse the funds as repairs to the home were being made. Defendant placed the funds in a non-interest bearing escrow account. Plaintiff filed this action on behalf of himself and others similarly situated, alleging causes of action for breach of fiduciary duty and violations of Civil Code § 2954.81 and Business and Professions Code § 17200. He contended § 2954.8 requires a lender to pay interest on insurance proceeds held in escrow following the partial or total destruction of the insured’s residence or other structure. The trial court sustained defendant’s demurrer to the complaint without leave to amend. Affirming, the Court of Appeal stated: “Neither section 2954.8 nor the parties’ loan agreement required the payment of interest.” (Gray v. Quicken Loans, Inc. (Cal. App. 2nd Dist., Div. 6, Mar. 2, 2021) 61 Cal.App.5th 524.)

Police Personnel Records.

Prior to amendments to Penal Code §§ 832.7 and 832.8, records relating to peace officers could be attained only through a Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) The amendments permit certain peace officer records to be obtained through the California Public Records Act. (Gov. Code, § 6250 et seq.) In Walnut Creek Police Officers’ Association v. City of Walnut Creek (2019) 33 Cal.App.5th 940, the appellate court found the amendments compelled disclosure of records created prior to the amendments when the event necessary to trigger the need for the records occurs after. Here, the trial court concluded that Penal Code § 832.7 applied prospectively only and entered a preliminary injunction for the Ventura County Deputy Sheriffs’ Association. The Court of Appeal dissolved the permanent injunction, finding there was no reason to depart from the reasoning in Walnut Creek. (Ventura County Deputy Sheriffs’ Association v. County of Ventura (Cal. App. 2nd Dist., Div. 6, Mar. 3, 2021) 61 Cal.App.5th 585.)

“Never mind!” Roseanne Roseannadanna.

Defendant served plaintiff with a statutory offer to compromise pursuant to Code of Civil Procedure § 998. Although the offer did not specify how plaintiff could accept, plaintiff’s counsel handwrote plaintiff’s acceptance onto the offer itself and filed it with the trial court. Thereafter, the trial court entered judgment on it. Defendant filed a motion to vacate under Code of Civil Procedure § 473 subdivision (d), which the trial court granted. Affirming the order to vacate, the Court of Appeal held that “California appellate courts have consistently followed Puerta [Puerta v. Torres (2011) 195 Cal.App.4th 1267] to hold that a section 998 offer lacking an acceptance provision is invalid, and therefore an offeree’s failure to accept it does not trigger any of section 998’s cost-shifting provisions.”  The court also applied contract principles, noting: “Additionally, relying on Civil Code section 1654, [plaintiff] contends we should conclude the offer was valid because [defendant] drafted it, and should be held responsible for any ‘ambiguity’ regarding its validity. Section 1654 of the Civil Code states: ‘In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.’ [] This interpretive rule has no relevance here, however, as [plaintiff] does not point to any ambiguity in the terms of the offer which would require further construction.” (Mostafavi Law Group, APC v. Larry Rabineau, APC (Cal. App. 2nd Dist., Div. 4, Mar. 3, 2021) 61 Cal.App.5th 614.)

Burden Is on Person Who Wants to Remain in this Country After Removal Order to Prove He Does Not Stand Convicted of Disqualifying Criminal Offense.

A petitioner who entered this country illegally fought an order of removal all the way to the U.S. Supreme Court. He chose not to dispute that he was subject to removal. Instead, he sought to establish only his eligibility for discretionary relief. For discretionary relief, a petitioner must show he has not been convicted of a crime involving moral turpitude. (8 U.S.C. §§1229b(b)(1), 1229a(c)(4), 1229b(e).) Nebraska state authorities had previously charged petitioner with attempted criminal impersonation, and he was found guilty. Before the immigration judge, the government showed the crime was using a fraudulent social security card to obtain employment, but petitioner declined to offer any competing evidence of his own. As a result, throughout the federal court system, petitioner has contended that no one can be sure whether his crime involved moral turpitude and, thanks to this ambiguity, he remains eligible for relief. Rejecting his argument, the Supreme Court upheld the removal order, stating: “The INA (Immigration and Nationality Act) expressly requires individuals seeking relief from lawful removal orders to prove all aspects of their eligibility. That includes proving they do not stand convicted of a disqualifying criminal offense.” (Pereida v. Wilkinson (U.S., Mar. 4, 2021) 141 S.Ct. 754.)

Freedom of Information Act Requests; Exemption 5 Applies to In-House Drafts.

The Freedom of Information Act requires that federal agencies make records available to the public upon request unless those records fall within one of nine exemptions. (5 U.S.C. § 552(b)(1)–(9).) Exemption 5 incorporates the privileges available to government agencies in civil litigation, such as the deliberative process privilege, attorney-client privilege, and attorney work-product privilege. This case concerns the deliberative process privilege, which protects from disclosure documents generated during an agency’s deliberations about a policy, as opposed to documents that embody or explain a policy that the agency adopts. The U.S. Supreme Court held that Exemption 5 protects in-house drafts that proved to be an agency’s last word about a proposal’s potential threat to endangered species. (United States Fish & Wildlife Service v. Sierra Club, Inc. (U.S., Mar. 4, 2021) 141 S.Ct. 777.)

Qualified Immunity for Officers Accused of Using Excessive Force During an Arrest.

Following a brief police chase, plaintiff fled to his home. He activated the remote-controlled garage door opener, remained in control of his car inside the garage for eight minutes, refused multiple commands to get out of the car, and resisted lesser force employed by officers without effect while he continued resisting. To force compliance, a police officer then released his police dog. Even after the dog bit him, plaintiff continued to resist, but the officers eventually got him out of the car and completed the arrest. The plaintiff filed a civil rights claim under 42 U.S.C. § 1983, but the district court found that the defendants were entitled to qualified immunity and granted summary judgment in their favor. The Ninth Circuit affirmed “because no clearly established law governed the reasonableness of using a canine to subdue a noncompliant suspect who resisted other types of force and refused to surrender.” (Hernandez v. Town of Gilbert (9th Cir., Mar. 4, 2021) 989 F.3d 739.)

Investors May Proceed with Breach of Fiduciary Duties Action.

Plaintiffs in a putative class action maintained investment accounts with defendant financial services firm. After moving their assets from commission-based accounts to fee-based accounts, they sued for breach of fiduciary duties. Plaintiffs argued that, under Rule 2111 of the Financial Industry Regulatory Authority, “broker-dealers must ensure that fee-based accounts are only recommended to those clients for whom they are suitable; as such accounts tend to be more expensive for clients who engage in little to no trading activity.” They conceded that Rule 2111 “may not [create] a private right of action,” but argued that such a rule “may be used as evidence of industry standards and practices” when pursuing a breach of fiduciary duty claim. The district court concluded that it did not have subject matter jurisdiction because the Securities Litigation Uniform Standards Act (15 U.S.C. § 78bb(f)) prevented plaintiffs from bringing claims as a class action consisting of fifty or more persons. Reversing, the Ninth Circuit found jurisdiction because the “alleged misrepresentation or omission that forms the basis for Plaintiffs’ fiduciary duty claims is not ‘in connection with the purchase or sale of a covered security.’” (Anderson v. Edward D. Jones & Co., L.P. (9th Cir., Mar. 4, 2021) 990 F.3d 692.)

This University Has Been Hazardous Waste Free . . . Since Sargent Left.

Plaintiff was an environmental health-and-safety technician responsible for asbestos management at a public university. In that capacity, he discovered lead paint chips, which the university dispersed with a leaf-blower, spreading them all over the grounds. The paint chips contained seven times what is considered to be hazardous waste. Plaintiff notified government agencies about the incident, and the university received citations and a notice of penalty. Plaintiff was disciplined and placed on a performance-improvement plan by his supervisor. Later, plaintiff collected a dust sample from a windowsill in a different building, and testing showed there was enough asbestos to contaminate 18,000 square feet. Within the next three months, plaintiff received six written reprimands, and his supervisor ordered him not to conduct any tests without approval. Plaintiff was thereafter fired. A jury found in plaintiff’s favor on claims alleging unlawful retaliation, Labor Code violations, and under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). The jury awarded plaintiff more than $2.9 million in PAGA penalties and more than $7.8 million in attorney fees. The Court of Appeal rejected defendant’s claim that, as a public entity, it was immune from PAGA claims. However, it found that plaintiff failed to establish liability for the PAGA penalties, because plaintiff was not personally affected by the underlying statutory violations. Thus, the court reversed the award of PAGA penalties, but affirmed the award of attorney fees. (Sargent v. Board of Trustees of California State University (Cal. App. 1st Dist., Div. 1, Mar. 5, 2021) 61 Cal.App.5th 658.)

Free Speech on a College Campus.

Plaintiff was a student at a public college and an evangelical Christian. He passed out religious literature and engaged interested people in conversation at an outdoor plaza on campus, until a campus police officer told him to stop. Plaintiff complied with the officer’s order. He then visited the official responsible for enforcing a campus policy that prohibited the distribution of religious materials in that area. The official said that plaintiff could only speak about his religion or distribute materials in two designated “free speech expression areas,” which together made up just 0.0015 percent of campus. And he could do so only after securing the necessary permit. Plaintiff applied for and received a permit to use the free speech zone but, twenty minutes after he began speaking on the day allowed by his permit, another campus police officer told him to stop, because people had complained about his speech, and campus policy prohibited using the free speech zone to say anything that “disturbs the peace and/or comfort of person(s).” Plaintiff again complied with the order to stop speaking. Plaintiff sued a number of college officials in charge of enforcing the college’s speech policies, arguing that those policies violated the First Amendment. He requested both injunctive relief and nominal damages. The college ultimately discontinued the policies, so they claimed that the action was moot and sought dismissal. The district court dismissed the case and the appellate court affirmed. The U.S. Supreme Court reversed, stating: “For purposes of this appeal, it is undisputed that [plaintiff] experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him. Because ‘every violation [of a right] imports damage,’ [], nominal damages can redress [plaintiff’s] injury even if he cannot or chooses not to quantify that harm in economic terms.” (Uzuegbunam v. Preczewski (U.S., Mar. 8, 2021) 141 S.Ct. 792.)

Bad Faith Verdict Reversed.

The victim of a single-car traffic accident offered to settle his claim against the vehicle’s owner in exchange for payment of the owner’s insurance policy limits. The insurer failed to accept the offer, which then lapsed. After the victim obtained judgment against the owner far in excess of policy limits, the owner assigned her claims against the insurer to the victim, who then sued the insurer for bad faith. Extensive evidence was presented at trial concerning the reasonableness of the insurer’s conduct, but the special verdict form asked nothing about reasonableness. The jury made no finding that the insurer acted unreasonably in any respect. The jury nevertheless found for the plaintiff, and a judgment of $9,935,000 was entered against the insurer based on the special verdict. The Court of Appeal reversed, stating: “A bad faith claim requires a finding that the insurer acted unreasonably in some respect. Because the jury made no such finding (not having been asked for one), the judgment must be vacated and a contrary judgment entered for the insurer.” (Pinto v. Farmers Insurance Exchange (Cal. App. 2nd Dist., Div. 1, Mar. 8, 2021) 61 Cal.App.5th 676.)

Summary Judgment in Favor of Police in Civil Rights Case Reversed.

While driving with his family on Interstate 84 near Boise, Idaho, plaintiff was stopped by a state police officer for failing to signal for at least five seconds before changing lanes. Because he believed there was no basis for the stop, plaintiff declined to give the officer his driver’s license or car registration, and repeatedly asked to speak to the officer’s supervisor. The officer radioed for support, and over a dozen officers responded. Several officers pulled plaintiff out of the car. As they led him to the rear of the car, they tripped him so that he fell to the ground, pinned him down, and handcuffed him. Plaintiff fell on his face and suffered long-term physical injuries and emotional distress. He ultimately sued the officers under 42 U.S.C. § 1983 for violating his constitutional rights. A district court granted partial summary judgment in favor of the officers on the basis of qualified immunity. Reversing, the Ninth Circuit held that a jury could find that plaintiff engaged in only passive resistance and, if so, the officers take-down would have involved unconstitutionally excessive force. (Rice v. Morehouse (9th Cir., Mar. 8, 2021) 989 F.3d 1112.)

Cross-Examination of a Character Witness.

A criminal defendant argued on appeal that the prosecutor improperly cross-examined his character witnesses by asking them if it would change their opinion if they “knew” or “learned” about his commission of the crimes. He maintained that the only correct form for this type of cross-examination is to ask if it would change their opinion if they “heard” about his commission of the crimes. Affirming the conviction, the Court of Appeal held that “a defense character witness who testifies based on his or her own opinion—rather than based solely on the defendant’s reputation— can be asked on cross-examination if he or she knows about the defendant’s bad acts.” (People v. Hawara (Cal. App. 4th Dist., Div. 2, Mar. 8, 2021) 61 Cal.App.5th 704.)

Prohibited Debt Collection Conduct.

The Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.; FDCPA) prohibits misleading, unfair, or unconscionable debt collection practices. Those prohibited practices include filing or threatening to file a lawsuit to collect debts that were defaulted on so long ago that a suit would be outside the applicable statute of limitations. The Ninth Circuit had to decide whether FDCPA’s prohibitions regarding such “time-barred debts” apply even if it was unclear at the time a debt collector sued, or threatened suit, whether a lawsuit was time barred under state law. The court held that the prohibitions do apply in such circumstances: “The FDCPA takes a strict liability approach to prohibiting misleading and unfair debt collection practices, so a plaintiff need not plead or prove that a debt collector knew or should have known that the lawsuit was time barred to demonstrate that the debt collector engaged in prohibited conduct. . . . We emphasize, however, that debt collectors could avoid liability by successfully asserting the statute’s affirmative defense for bona fide errors. A mistake about the time-barred status of a debt under state law may be such an error.” (Kaiser v. Cascade Capital, LLC (9th Cir., Mar. 9, 2021) 989 F.3d 1127.)

Prescriptive Easement.

For at least 50 years, a single owner owned two adjacent properties in Burlingame. The most recent past owner had allowed tenants of one property (on El Camino Real) to use portions of the other property (on Willow Avenue) for access, parking, garbage removal, and as a garden. The owner defaulted on her mortgage in 2011. The two properties were subsequently sold to two different banks. In 2017, plaintiff bought the El Camino property from one of the banks. At the time of the purchase, he was advised that his property was being used by tenants of the Willow property for all the purposes allowed by the prior owner. Shortly after acquiring the land, plaintiff filed a complaint to quiet title. The owner of the Willow property cross-complained for prescriptive easement, and the trial court ruled in favor of the Willow property owner. On appeal, plaintiff contended that the evidence compelled the opposite conclusion—that the use of the El Camino property was permissive. Affirming, the Court of Appeal stated “the decision of the trial court is sound, it is equitable, and it is supported by the record.” (Husain v. California Pacific Bank (Cal. App. 1st Dist., Div. 2, Mar. 9, 2021) 61 Cal.App.5th 717.)

Attorney’s Personal Embroilment and Incivility Triggered Lower Fee Award.

In an action seeking recoupment of funds paid to an unlicensed contractor, the trial court awarded plaintiff $92,651 under Business and Professions Code § 7031 plus a $10,000 penalty under Code of Civil Procedure § 1029.8. In awarding an additional $90,000 in statutory attorney fees, the trial court said the attorney had gone “so far beyond what was necessary on this matter” and that the $270,000 fee request was “excessive by a lot.” The trial court also noted the lawyer’s lack of civility and observed that he was “agitated about this case.” Affirming, the Court of Appeal stated: “Trial judges deciding motions for attorney fees properly may consider whether the attorney seeking the fee has become personally embroiled and has, therefore, over-litigated the case. Similarly, judges permissibly may consider whether an attorney’s incivility in litigation has affected the litigation costs.” (Karton v. Ari Design & Construction, Inc. (Cal. App. 2nd Dist., Div. 8, Mar. 9, 2021) 61 Cal.App.5th 734.)

Professor Who Passed Up Podium.

A university professor refused to teach what he considered to be an extra class that he was assigned. Defendant university imposed disciplinary sanctions. The professor filed a petition for administrative writ in the superior court and prevailed. Reversing, the Court of Appeal found substantial evidence to support the university’s decision, stating: “It would be unreasonable to interpret the workload policy in a way that obstructs the department chair from ensuring the faculty members fulfill their standard annual work load of five course equivalencies despite failing to meet the other equivalencies in student advising and research supervision.” (Akella v. Regents of the University of California (Cal. App. 6th Dist., Mar. 11, 2021) 61 Cal.App.5th 801.)

Client Wouldn’t Pay Lawyer.

An attorney filed an action to recover fees from his client. The client contended the fees to which the parties agreed were unreasonable. The trial court found the fee arrangements were valid and issued attachment orders. Affirming, the Court of Appeal stated: “[W]hen an attorney sues a client for breach of a valid and enforceable fee agreement, the amount of recoverable fees must be determined under the terms of the fee agreement, even if the agreed upon fee exceeds what otherwise would constitute a reasonable fee under the familiar lodestar analysis. To be enforceable, the fee agreement cannot be unconscionable. And, as with every contract, the attorney’s performance under the fee agreement must be consistent with the implied covenant of good faith and fair dealing. This requires a court adjudicating a fee dispute to determine, among other things, whether the attorney used reasonable care, skill, and diligence in performing his or her contractual obligations.” (Pech v. Morgan (Cal. App. 2nd Dist., Div. 3, Mar. 11, 2021) 61 Cal.App.5th 841.)

Revocable Living Trust Found to Be Natural Person Under Ordinance.

 The “family move-in” provision of San Francisco’s rent control ordinance allows a “landlord” to evict renters from a unit to make the unit available for a close relative of the landlord. A rule enacted by the San Francisco Rent Stabilization and Arbitration Board defines “landlord” for purposes of the family move-in provision as “a natural person, or group of natural persons, . . . who in good faith hold a recorded fee interest in the property.” Here, the landlord served its tenants—defendant and her four children—with an unlawful detainer. The tenants demurred to the complaint, arguing the landlord is not a natural person but a revocable living trust. The trial court sustained the demurrer without leave to amend. Reversing, the Court of Appeal held that “natural persons who are acting as trustees of a revocable living trust and are also the trust’s settlors and beneficiaries qualify as a ‘landlord’ under the family move-in provision.” (Boshernitsan v. Bach (Cal. App. 1st Dist., Div. 1, Mar. 12, 2021) 61 Cal.App.5th 883.)

Medical Staff and Hospital Are Separate Legal Entities.

The medical executive committee of a hospital’s medical staff recommended that staff privileges be denied to a doctor. After the doctor sued the hospital, the trial court sustained the hospital’s demurrer. Affirming, the Court of Appeal stated: “The hospital had yet to take any adverse action against plaintiff and his reapplication for privileges. The medical staff is a separate legal entity and, thus, its recommendation to deny [plaintiff’s] reapplication is not an act of wrongdoing by the hospital. Consequently, a cause of action against the hospital has not yet accrued.” (Bichai v. Dignity Health (Cal. App. 5th Dist., Mar. 12, 2021) 61 Cal.App.5th 869.)

Gender Disparities Not Always Obvious.

Plaintiff is a well-known psychology professor at the University of Oregon.  She alleged that the university pays her several thousand dollars less per year than four male colleagues, even though they are of equal rank and seniority. Plaintiff claimed that this gender disparity in pay is caused by the university’s practice of granting “retention raises” to faculty as an incentive to remain at the university when they are being courted by other academic institutions, because female professors are less likely to engage in retention negotiations than male professors, and when they do, they are less likely to obtain a raise. Plaintiff sued the university alleging violations of the Equal Pay Act, Title VII, Title IX, and Oregon law. The district court granted summary judgment for the university on all counts. Affirming in part and reversing in part, the Ninth Circuit concluded that plaintiff had presented a genuine issue of material fact on her claims under the Equal Pay Act, Title VII, and state law. (Freyd v. University of Oregon (9th Cir., Mar. 15, 2021) 990 F.3d 1211.)

Probate Court Erred in Awarding Attorney Fees.

The children of a woman petitioned to establish a conservatorship but settled the matter without the need for a conservatorship before a conservator was appointed. The trial court subsequently granted the children’s request for attorney fees under Probate Code § 2640.1. Reversing, the Court of Appeal concluded that “[a]ttorney fees are not available where, as here, the matter is resolved without a conservator’s appointment.” (Conservatorship of Brokken (Cal. App. 2nd Dist., Div. 6, Mar. 15, 2021) 61 Cal.App.5th 944.)

Swap Meet Owed Duty to Warn of Dangerous Condition that Was Not Open and Obvious.

Plaintiff and her husband rented two vendor spaces at defendants’ outdoor swap meet. When plaintiff and her husband were setting up their booth, a 28-foot metal pole holding their advertising banner touched an overhead power line, resulting in their electrocution and his death. A jury found defendants were 77.5 percent at fault and awarded damages totaling $12.25 million. On appeal, defendants contended they owed no duty of care to plaintiff because the danger presented by the overhead power line was open and obvious. Affirming, the Court of Appeal concluded that “the evidence presented in this case did not establish as a matter of law that the danger was open and obvious. In particular, it was not obvious that the line was uninsulated, that it was energized, or that the amount of electricity being transmitted was lethal. Thus, a warning would not have been superfluous; it would have provided information that was not obvious.” (Zuniga v. Cherry Avenue Auction, Inc. (Cal. App. 5th Dist., Mar. 16, 2021) 61 Cal.App.5th 980.)

Arbitrator Did Not Exceed His Powers.

An arbitrator partially rescinded a contract after finding the defendants provided legal services without an active law license. The defendant petitioned to vacate the award, arguing the arbitrator exceeded his powers. The trial court denied the petition and confirmed the award. Affirming, the Court of Appeal stated “the arbitrator did not regulate the practice of law or impose discipline on [defendants]. Rather, it is clear he concluded [plaintiffs] were entitled to restitution because [defendant’s] unlicensed practice of law rendered portions of the 2016 and 2017 agreements illegal. The arbitrator acted well within his authority in so finding.” (Bacall v. Shumway (Cal. App. 2nd Dist., Div. 8, Mar. 16, 2021) 61 Cal.App.5th 950.)

Prisoner Permitted to Proceed with Action Against Prison.

Plaintiff is a self-represented Black inmate who alleged prison officials retaliated against him because (1) he disclosed information to the Office of Internal Affairs of the California Department of Corrections and Rehabilitation about prison officials covering up a murder; and (2) he filed administrative grievances addressing misconduct by officials at Corcoran State Prison. The alleged retaliation included correctional officers restraining plaintiff on a gurney after he was injured in a racial incident at the prison and then allowing another prisoner to attack him. Seven of plaintiff’s ribs were broken in the attack. While plaintiff was at a hospital for treatment of his injuries, prison officials took custody of his personal property and, when he returned, some of that property, including legal papers, was not returned to him. The alleged retaliation also included misconduct of prison officials that thwarted his inmate grievances seeking the return of his missing property. Plaintiff filed a petition for a writ of replevin directing prison officials to return his personal property or pay its value. The trial court, on its own motion for judgment on the pleadings, dismissed the lawsuit on the ground that plaintiff failed to allege he exhausted, or was excused from exhausting, the inmate grievance process through the third level. Plaintiff appealed, contending he should be excused from exhausting that process because it was rendered unavailable by the misconduct of prison officials. Reversing the judgment of dismissal, the Court of Appeal stated: “[W]e conclude the papers [plaintiff] filed in the trial court and in this appeal demonstrate he could amend his petition to allege specific facts showing the administrative process is unavailable to him because prison officials have thwarted his use of the inmate grievance procedure through misrepresentations and machinations. We therefore reverse the judgment of dismissal and remand for further proceedings.” (Foster v. Sexton (Cal. App. 5th Dist., Mar. 16, 2021) 61 Cal.App.5th 998.)

Police Officers Face a New World Involving Public Disclosure of Dishonesty.

According to an internal affairs investigation, plaintiff, a former police officer, falsified his report and investigation of a hit and run accident, arrested a suspect without a warrant or probable cause, used excessive force in making the arrest, applied a carotid control hold on the suspect, and failed to request medical assistance for the suspect or inform the jail that he had applied a carotid control hold. Penal Code § 832.7 as amended effective January 1, 2019, requires the disclosure of police officer personnel records pertaining to, among other things, sustained findings of dishonesty or making false reports. The city received a number of media requests under the California Public Record Act (Gov. Code, § 6250 et seq.) for records of disciplinary actions against plaintiff. When the media made its reports public, plaintiff’s then-current employer, Uber, fired him. Plaintiff then sued the city for breach of contract, invasion of privacy, interference with prospective business advantage, and intentional infliction of emotional distress. The city moved to strike the complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The trial court granted the motion in part and denied it in part, finding plaintiff had shown a probability of prevailing on his causes of action for breach of contract and invasion of privacy because § 832.7 did not require the city to release the information from plaintiff’s personnel file. Concluding the court should have granted the city’s special motion to strike in its entirety, the Court of Appeal stated: “Section 832.7, subdivision (b)(1)(C) broadly requires the disclosure of any qualifying record ‘relating to an incident in which a sustained finding’ of officer dishonesty was made.” (Collondrez v. City of Rio Vista (Cal. App. 1st Dist., Div. 3, Mar. 16, 2021) 61 Cal.App.5th 1039.)

Unsecured Firearm.

Defendant hired two healthcare aides to work in her elderly parents’ home. While one of the aides bathed defendant’s mother in a hospital bed in her bedroom, the second aide reached into the bedroom closet to retrieve an oxygen tank for defendant’s father. Removing the tank caused a loaded rifle in the closet to fall and discharge, striking the other aide and injuring her. The jury found defendant liable for negligence and awarded a total of $3.61 million in damages. The court reduced the economic damages award from $610,000 to $406,644.77, and left the $3 million noneconomic damages award intact. On appeal, defendant argued that she owed the injured aide no duty of care and did not cause the aide’s harm. Affirming, the Court of Appeal stated, “It is foreseeable that an accidental shooting might occur in a home containing unsecured, loaded firearms, and policy considerations favor a duty to use reasonable care when one knows firearms are present,” and concluded that substantial evidence supported the finding that defendant’s negligence was a substantial factor in causing the aide’s harm. (Hernandez v. Jensen (Cal. App. 2nd Dist., Div. 7, Mar. 17, 2021) 61 Cal.App.5th 1056.)

Title Insurer Is Not Immune from Suit for Charging Unfiled Rates.

When plaintiffs refinanced the mortgage on their home, defendant title company handled the escrow and supplied title insurance, charging an escrow fee, overnight delivery fee, courier fee, and draw deed fee. Plaintiffs filed a class action alleging that the delivery, courier, and draw deed fees were illegal because the title company never filed those rates with the Insurance Commissioner prior to charging them to consumers. Defendant argued that it was immune from suit pursuant to Insurance Code § 12414.26 and that the Insurance Commissioner has exclusive jurisdiction over claims for failure to comply with the rate-filing statutes. The trial court found that defendant was required to but failed to file its rates with the Insurance Commissioner. The Court of Appeal concluded that defendant was immune from suit pursuant to Insurance Code § 12414.27 and that the trial court had no jurisdiction to consider the merits of the suit because the Insurance Commissioner had exclusive jurisdiction. Reversing the appellate court, the California Supreme Court held: “The statutory immunity for “act[s] done . . . pursuant to the authority conferred” (Ins. Code, § 12414.26) by the rate-filing statutes does not shield title insurers from suit for charging unauthorized rates, and the Insurance Commissioner does not have exclusive jurisdiction over such claims.” (Villanueva v. Fidelity National Title Company (Cal., Mar. 18, 2021) 2021 WL 1031874.)

Previously we reported:
Kneeling & Praying Not Permitted.

 A high school football coach appealed to the Ninth Circuit after the district court denied his request for a preliminary injunction that would have required the high school to allow him to kneel and pray on the 50-yard line for about 30 seconds in view of students and parents immediately after school football games. When the coach first started at the high school, he prayed by himself. Several games into his first season, however, a group of players asked him whether they could join him. “This is a free country,” the coach replied, “you can do what you want.” Hearing that response, the students elected to join him. Over time, the group grew to include the majority of the team. Sometimes the players even invited the opposing team to join. Eventually, the coach’s religious practice evolved to something more than his original prayer. He began giving short motivational speeches at midfield after the games. Students, coaches, and others from both teams were invited to participate. During the speeches, the participants kneeled around the coach, who raised a helmet from each team and delivered a message containing religious content. The coach subsequently acknowledged that these motivational speeches likely constituted prayers. At some point, the coach was placed on administrative leave for violating a school district policy stating: “[s]chool staff shall neither encourage nor discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity.” The Ninth Circuit found the coach spoke as a public employee, and not as a private citizen, when he prayed on the 50-yard line. The appeals court therefore concluded that the coach could not show a likelihood of success of the merits of his First Amendment retaliation claim. (Kennedy v. Bremerton School District (9th Cir., Aug. 23, 2017) 869 F.3d 813.)

What happened next:

The U.S. Supreme Court denied certiorari.  Justice Alito explained why he denied the petition, and Justices Thomas, Gorsuch, and Kavanaugh joined in the explanation, which included: “I concur in the denial of the petition for a writ of certiorari because denial of certiorari does not signify that the Court necessarily agrees with the decision (much less the opinion) below. In this case, important unresolved factual questions would make it difficult if not impossible at this stage to decide the free speech question that the petition asks us to review.” (Kennedy v. Bremerton School District (U.S., Jan. 22, 2019) 139 S.Ct. 634.)

The latest:

The district court granted summary judgment in favor of the school district. Affirming, the Ninth Circuit stated: “The record before us and binding Supreme Court precedent compel the conclusion that BSD would have violated the Establishment Clause by allowing Kennedy to pray at the conclusion of football games, in the center of the field, with students who felt pressured to join him. Kennedy’s attempts to draw nationwide attention to his challenge to BSD compels the conclusion that he was not engaging in private prayer, but was instead engaging in public speech of an overtly religious nature while performing his job duties. BSD tried to reach an accommodation for Kennedy, but that was spurned by his insisting that he be allowed to pray immediately after the conclusion of each game, likely surrounded by students who felt pressured to join him.” Back to the U.S. Supreme Court??? (Kennedy v. Bremerton School District (9th Cir., Mar. 18, 2021) 2021 WL 1032847.)

Trial Court Properly Reduced Constitutionally Excessive Punitive Damages Award and Resulting Award Is Not Constitutionally Excessive.

Plaintiff sued her former employer alleging disability discrimination after she suffered a work-related injury and defendant terminated her employment. The jury awarded her $915,645 in compensatory damages and $5 million in punitive damages. However, the trial court granted in part a motion for judgment notwithstanding the verdict and reduced the punitive damages award to $1,831,290, a 2:1 ratio of punitive to compensatory damages, concluding that due process limited the maximum punitive damages award to twice the compensatory damages. On appeal, defendant argued that the reduced award was constitutionally excessive, while plaintiff argued for reinstatement of the jury’s award. Affirming, the Court of Appeal stated: “[W]e conclude the trial court properly reduced the punitive damages award to an amount equal to twice the compensatory damages award—and no further.” (Contreras-Velazquez v. Family Health Centers of San Diego, Inc. (Cal. App. 4th Dist., Div. 1, Mar. 18, 2021) 2021 WL 1034831.)

Decedent Did Not Show a Lack of Testamentary Capacity at the Time the Trust Was Executed.

Plaintiffs are grandchildren of decedent, who disinherited them in her trust. Plaintiffs contend the probate court should have invalidated the trust pursuant to Probate Code § 6100.5, subdivision (a)(2) because of decedent’s testamentary incapacity. The trial court found that decedent was not experiencing delusions within the meaning of the statute at the time she executed her trust. Thus, the court implicitly found decedent did not have the requisite mental health disorder at the time she executed her trust. Affirming, the Court of Appeal stated: “The record discloses substantial evidence supporting the trial court’s determination.” (Eyford v. Nord (Cal. App. 1st Dist., Div. 3, Mar. 18, 2021) 2021 WL1034192.)

Plaintiff May Not Pursue Action Against City After Contracting Typhus from Her Husband Who Had Contracted It from Unsanitary Conditions on City Property.

Plaintiff alleges that her husband, a police officer, contracted typhus from unsanitary conditions at the police station where he worked. Plaintiff alleged that several months after her husband first became ill, she contracted typhus as a result of living together. Plaintiff sued the city, alleging negligence and dangerous condition of public property under Government Code § 835.1 The city demurred to plaintiff’s complaint, asserting that because plaintiff did not allege that she had contact with the property at issue, the city did not owe plaintiff a duty of care with respect to the condition of its property. The city also contended it was immune from liability under Government Code § 855.4, which bars claims relating to a “decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community.” The trial court overruled the city’s demurrer, and the city filed a petition for writ of mandate. Granting the petition, the Court of Appeal stated: “A public entity’s liability must be based on statute, and section 835 does not extend liability to members of the public whose alleged injuries do not arise from use of the property at issue or any adjacent property. In addition, the immunity in section 855.4 bars liability for decisions affecting public health.” (City of Los Angeles v. Superior Court (Cal. App. 2nd Dist., Div. 4, Mar. 18, 2021) 2021 WL 1034389.)

“If the world were perfect, it wouldn’t be,” Yogi Berra.

Plaintiff filed a complaint with the Department of Fair Employment and Housing (DFEH), alleging that her former employer committed various acts of employment discrimination against her. Plaintiff’s DFEH complaint named as respondents “Oasis Surgery Center LLC” and “Oasis Surgery Center, LP,” which are variants of defendant’s registered business name, “Oasis Surgery Center.” Plaintiff’s DFEH complaint also identified her managers, supervisors, and coworkers. After receiving a right to sue letter, plaintiff filed suit against defendant, her former employer. The trial court granted defendant’s motion for summary adjudication of all of plaintiff’s Fair Employment and Housing Act (Gov. Code, § 12940 et seq.; FEHA) claims because plaintiff “ ‘named the wrong entity in her DFEH [C]omplaint, and . . . never corrected that omission.’ ” Plaintiff then filed a petition for writ of mandate in the Court of Appeal challenging the order granting summary adjudication. Granting extraordinary relief, the Court of Appeal stated: “FEHA’s exhaustion requirement should not be interpreted as a ‘ “procedural gotcha” ’ [citation] that absolves an alleged perpetrator of discrimination from all potential liability merely because a plaintiff makes a minor mistake in naming the respondent in an administrative complaint when the intended respondent’s identity is clear. This is particularly true in a case such as this, in which the plaintiff’s error could not possibly have hampered any administrative investigation or prejudiced the defendant in any judicial proceedings.” (Clark v. Superior Court (Cal. App. 4th Dist., Div. 1, Mar. 19, 2021) 2021 WL 1050057.)

Seven-Year Delay Bars Disgorgement Claim Based on Lack of Contractor’s License.

Business and Professions Code § 7031, a provision of the Contractors’ State License Law (Bus. & Prof. Code, § 7000 et seq.), deters unlicensed building contractors by allowing any person who utilizes their services to bring an action for disgorgement of all compensation paid for the performance of any act or contract, even when the work performed is free of defects. Plaintiff filed an action asserting a § 7031, subdivision (b) claim for disgorgement against defendant construction companies more than eight years after they had completed construction of plaintiff’s hotel. The trial court sustained defendants’ demurrers to plaintiff’s complaint without leave to amend, finding plaintiff’s claims were barred under Code of Civil Procedure § 340, subdivision (a), the one-year statute of limitations for statutory forfeiture or penalty causes of action. Plaintiff contended the trial court erred by applying the one-year limitations period. Affirming, the Court of Appeal held that the one-year statute of limitations applies to disgorgement claims brought under § 7031. (San Francisco CDC LLC v. Webcor Construction L.P. (Cal. App. 1st Dist., Div. 1, Mar. 19, 2021) 2021 WL 1050001.)

A Situation Sure to Drive Insurance Companies Nuts.

In 2013, United Financial Casualty Company (United) issued a commercial auto insurance policy to commercial truck driver José Porras and submitted a Certificate of Insurance to the California Department of Motor Vehicles (DMV) to provide evidence of Porras’s financial responsibility as required by Vehicle Code § 34630. United’s insurance policy lapsed in 2015 pursuant to its own terms when Porras failed to renew it, but the Certificate of Insurance remained on file with the DMV due to a clerical error by United. Porras then became insured under a commercial auto policy issued by Allied Premier Insurance (Allied), and Allied submitted a Certificate of Insurance to the DMV on Porras’s behalf, so the DMV had on file Certificates of Insurance for Porras from both United and Allied. In 2015, Porras was involved in a vehicle collision with Jennifer Jones in which Jones was killed. Allied defended Porras in the lawsuit filed in California state court by Jones’s parents for wrongful death and ultimately settled the lawsuit for $1 million. Allied then sued United in a separate action filed in California state court but removed to federal court, seeking to recover half of the $1 million expended to settle the action. The district court determined that United’s failure to cancel the Certificate of Insurance on file with the DMV caused the insurance policy to continue in full force and effect until the time of the 2015 collision, entering judgment in favor of Allied, and against United, in the amount of $500,000. Pursuant to California Rules of Court, rule 8.548, the Ninth Circuit certified the following question to the California Supreme Court: Under California’s Motor Carriers of Property Permit Act, California Vehicle Code §§ 34600 et seq., does a commercial automobile insurance policy continue in full force and effect until the insurer cancels the corresponding Certificate of Insurance on file with the California Department of Motor Vehicles, regardless of the insurance policy’s stated expiration date? (Allied Premier Insurance v. United Financial Casualty Company (9th Cir., Mar. 22, 2021) 2021 WL 1082862.)

Animal House 2021, No Laughs Involved.

Plaintiff is a national fraternity. Defendant university suspended recognition of plaintiff’s chapter for six years. The chapter required underage pledges to participate in drinking games designed to induce severe inebriation, subjected pledges to requirements likely to compromise their dignity and deprive them of sleep, and encouraged pledges to fight other members as a spectator sport. Within the Theta Xi house, pledges played Power Hour (each participant drank a shot of beer every minute for an hour), War (each team drank 60 cups of beer and Four Loko as fast as possible), and the Great American Challenge (each team raced to consume a 30-pack of beer, in addition to pizza and marijuana). Plaintiff filed a petition for a writ of administrative mandamus, which the trial court denied. Affirming, the Court of Appeal held “that Theta Xi received a fair administrative hearing.” (Alpha Nu Association of Theta Xi v. University of Southern California (Cal. App. 2nd Dist., Div. 4, Mar. 24, 2021) 2021 WL 1102016.)

What Is a Supervisor?

Plaintiff was an employee of a janitorial service. When a new janitorial service (defendant) assumed the cleaning contract, it did not retain plaintiff. Plaintiff sued defendant for race and gender discrimination pursuant to the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA) and the Displaced Janitor Opportunity Act (Lab. Code, § 1060 et seq.; DJOA). A jury returned a defense verdict on the FEHA claim. The court ruled in favor of the defense on the DJOA claim, finding plaintiff was not entitled to protection because he was a supervisory employee. Affirming judgment for defendant, the Court of Appeal held that “Jones fits the common understanding of the word ‘supervisor’ ” because he “had a leadership role as compared to the other janitors.” (Jones v. Quality Coast, Inc. (Cal. App. 2nd Dist., Div. 5, Mar. 23, 2021) 2021WL 1100814.)

Attorney Work Product and Breach of a Listserv Confidentiality Agreement.

Attorney Robert Curtis consulted an unnamed attorney (Doe 1) for advice while litigating a case. Curtis lost the case, and the prevailing attorney posted “a colorful account” of his victory on California Employment Lawyers Association’s (CELA) confidential Listerv, which was available to 1,300 CELA members who had executed written confidentiality agreements. Doe 1, who is alleged to be a member of CELA, forwarded the posting to Curtis who used it to oppose the prevailing attorney’s motion for attorney fees. CELA then sued Doe 1 for breach of contract, deposed Curtis, and asked him to identify Doe 1. Curtis refused, asserting absolute work product privilege. The trial court granted CELA’s motion to compel, and Curtis appealed. The Court of Appeal treated the appeal as a petition for writ of mandate and denied relief, ruling that Curtis is not entitled to absolute work product protection because “the identity of Doe 1 does not reflect Curtis’s ‘impressions, conclusions, opinions, or legal research or theories.’ ” Curtis may be entitled to qualified work product protection, but it is outweighed by CELA’s interest in disclosure because “upholding Curtis’s work product privilege would likely entirely foreclose CELA’s action for breach of its confidentiality information.” The Court of Appeal held the trial court did not abuse its discretion and denied the petition for writ of mandate. (Curtis v. Superior Court of Los Angeles County (Cal. App. 2nd Dist., Div. 7, Mar. 24, 2021) 2021 WL 1115484.)

Mental Health Diversion.

Defendant appealed his conviction for making criminal threats, contending the trial court erroneously denied his request for mental health diversion pursuant to Penal Code §§ 1001.35 and 1001.36. Noting that (1) two psychiatrists had opined that defendant posed a low risk of committing assault; (2) his criminal history consisted of misdemeanors; and (3) the circumstances of the charges against him did not indicate future dangerousness, the Court of Appeal found the trial court abused its discretion in denying diversion. Reversing, the appeals court ordered that “[o]n remand, the trial court shall conduct a new hearing to consider Moine’s eligibility for mental health diversion pursuant to section 1001.36.” (People v. Moine (Cal. App. 2nd Dist., Div. 1, Mar. 24, 2021) 2021 WL 1115446.)

Shooting a Fleeing Suspect Is a Seizure.

Police officers in Albuquerque, New Mexico shot a woman who fled when police officers approached her car. Although the woman was shot twice in the back, she drove 75 miles before going to a hospital. Chief Justice Roberts wrote that the good news was that the hospital “was able to airlift her to another hospital where she could receive appropriate care. The bad news was that the hospital was back in Albuquerque, where the police arrested her the next day.” The woman later sued for damages under 42 U.S.C. § 1983. The district court granted summary judgment to the officers, relying on federal circuit court precedent that provides “no seizure can occur unless there is physical touch or a show of authority,” and that “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to physical control over the suspect. (Brooks v. Gaenzle (10th Cir., 2010) 614 F.3d 1213, 1223.) The Tenth Circuit affirmed, but the U.S. Supreme Court vacated the judgment, stating: “The question in this case is whether a seizure occurs when an officer shoots someone who temporarily eludes capture after the shooting. The answer is yes: The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” (Torres v. Madrid (U.S., Mar. 25, 2021) 141 S.Ct. 989.)

State Courts Have Personal Jurisdiction over Car Manufacturer in Product Liability Cases.

Two state courts, one in Minnesota and the other in Montana, exercised personal jurisdiction in product liability actions over a car manufacturer headquartered in Michigan and incorporated in Delaware. Both cases involved car accidents resulting in injuries or death. The car manufacturer advertises, sells, and services in both states the car model involved in the two accidents. The car manufacturer moved to dismiss both suits for lack of personal jurisdiction, arguing that each state court would have jurisdiction only if the company’s conduct in that state had given rise to plaintiffs’ claims; that is, only if the company had designed, manufactured or sold the particular vehicle involved in the accident in each state. Unpersuaded by the car manufacturer’s argument, the U.S. Supreme Court affirmed the Minnesota and Montana judgments, stating: “When a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State’s courts may entertain the resulting suit.” (Ford Motor Company v. Montana Eighth Judicial District Court (U.S., Mar. 25, 2021) 141 S.Ct. 1017.)

Conditioning Freedom Solely on Whether an Arrestee Can Afford Bail Is Unconstitutional.

Joining a “ ‘clear and growing movement’ that is reexamining the use of money bail as a means of pretrial detention,” the California Supreme Court held that inability to pay cannot be the “sole basis” to deny an accused liberty. The detainee, a 66-year-old, was arrested for residential robbery and burglary of a 79-year-old man. In stealing $7 and a bottle of cologne from the victim, defendant threw the man’s cell phone to the floor and moved his walker into the next room. The trial court set bail at $350,000. Since the defendant could not afford the bail, he was kept in jail during pretrial criminal proceedings. Although the Court of Appeal had already vacated the order and remanded for a new bail hearing, and no party petitioned for review, the California Supreme Court granted review on its own motion to consider “the constitutionality of money bail as currently used in California.” Due process and equal protection concerns led the court to conclude that “such detention is impermissible unless no less restrictive conditions of release can adequately vindicate the state’s compelling interests.” Specifically, “where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail — and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” The court ordered a new bail hearing for the trial court to determine whether less restrictive alternatives to incarceration can protect the public, the victim and assure the defendant’s appearance in court. (In re Humphrey (Cal., Mar. 25, 2021) 2021 WL 1134487.)

Court Retained Jurisdiction to Reconsider Sanctions Order Even After Voluntary Dismissal.

The trial court granted sanctions against defendant after considering plaintiff’s counsel’s declaration attesting a billing rate of $300. Plaintiff dismissed the action not long after the court’s sanction order. The same day the action was dismissed, defendant filed a motion for reconsideration of the sanctions order, attaching evidence that plaintiff’s counsel was prosecuting the case pro bono. The court then set aside the sanctions order. On appeal, plaintiff argued the trial court lacked jurisdiction to set aside its sanctions order because the case had been dismissed. The Court of Appeal noted that as a general rule, the voluntary dismissal of an action deprives the court of jurisdiction, but said there are exceptions. Affirming the order setting aside the discovery sanctions, the court stated: “We . . . conclude a trial court’s authority to reconsider sanctions survives even after a plaintiff voluntarily dismisses an action.” (Manhan v. Gallagher (Cal. App. 1st Dist., Div. 3, Mar. 26, 2021) 2021 WL 1152394.)

Crystal Ball Is No Substitute for a Sound Valuation.

In a legal malpractice case, the trial court excluded plaintiffs’ expert witness declaration regarding future profits in connection with defendants’ motion for summary adjudication. The declaration used a method termed the “Before and After Method,” which considers the profit the plaintiff would have received but for the actions of the defendant. Reversing in part, the Court of Appeal found the trial court abused its discretion in excluding part of the declaration. However, as the expert had divided the “after” period into two parts, the court held the trial court did not err in excluding evidence as to one of those “after” periods because it was entirely speculative, as the business never got off the ground and no evidence supported the valuation. As for the legal malpractice claims, the court found that plaintiffs met their burden of establishing causation and damages, and that there were triable issues regarding the unclean hands and statute of limitations defenses. (Michaels v. Greenberg Traurig, LLP (Cal. App. 2nd Dist., Div. 8, Mar. 26, 2021) 2021 WL 1153053.)

Circuit Court Erred in Granting Habeas Corpus Relief to Man Convicted by Substantial Evidence Thirty-Five Years Earlier.

The Sixth Circuit Court of Appeals granted a convicted Tennessee man a writ of habeas corpus 35 years after his murder conviction because his attorney should have mounted a more vigorous defense by blaming another suspect. During his earlier trial, witnesses testified to Hines fleeing in the victim’s car and wearing a bloody shirt, and his family members heard him admit to stabbing someone at the motel. The U.S. Supreme Court stated that the circuit court erroneously reviewed the case de novo, failing to evaluate the substantial evidence supporting the Tennessee conviction. Reversing, the nation’s highest court said the circuit court’s approach plainly violated Congress’s prohibition on disturbing state court judgments on federal habeas review absent an error that lies beyond any possibility for fair-minded disagreement. (Mays v. Hines (U.S., Mar. 29, 2021) 2021 WL 1163729.)

Prevailing Wages for “Public Works” Must Be Paid to Workers Performing Non-Construction Work for a Public Entity.

California’s prevailing wage law is a minimum wage provision that generally applies to those employed on public works. In this class action, plaintiffs contended defendant failed to pay workers minimum or prevailing wages. Plaintiffs are employees of defendant, a private company that contracted with a government district. Defendant argued plaintiffs were not entitled to those wages because the work performed, sorting non-recyclable material, is not covered by Labor Code § 1720, subdivision (a)(2), which defendant argued requires payment of prevailing wages only for “construction-related” work. Considering the statutory text and legislative history, the California Supreme Court held that Labor Code § 1720, subdivision (a)(2) “is not limited to construction-type work” and concluded that plaintiffs’ work falls within that provision’s definition of public works. (Kaanaana v. Barrett Business Services, Inc. (Cal., Mar. 29, 2021) 2021 WL 1166963.)

Class Waiver Not Enforceable Against Amazon-Contracted Delivery Drivers Alleging Wage and Hour Claims.

In his wage and hour class action against his former employer, plaintiff, a delivery driver, also asserted individual claims for unlawful retaliation and wrongful termination. Plaintiff alleged defendant’s primary client was, Inc. The trial court denied defendant’s petition to compel arbitration, finding that plaintiff was exempt from Federal Arbitration Act (9 U.S.C. § 1 et seq.; FAA) coverage because he was a transportation worker engaged in interstate commerce. The trial court also denied defendant’s motion to compel arbitration of plaintiff’s individual claims, concluding that the unenforceable class action waiver rendered the arbitration agreement unenforceable. Affirming and reversing, the Court of Appeal agreed with the trial court that plaintiff was exempt from FAA coverage. The court specifically distinguished cases involving restaurant food delivery drivers, which it found not to be engaged in interstate commerce and rejected that the exemption does not apply because they are “last-mile” drivers who do not actually cross state lines. Finding the class action waiver unenforceable under California law, the court reversed because the trial court “improperly found the arbitration agreement unenforceable in its entirety rather than severing the class action waiver provision.” (Betancourt v. Transportation Brokerage Specialists, Inc. (Cal. App. 1st Dist., Div. 3, Mar. 29, 2021) 2021 WL 1170007.)

Canadian Internet Troll Subject to Personal Jurisdiction in California.

Plaintiff is a California resident. He sued several defendants, including a Canadian resident, for defamation and other causes of action. The trial court granted the Canadian resident’s motion to quash service of summons and complaint for lack of personal jurisdiction under California Code of Civil Procedure § 418.10. On appeal, plaintiff contended the Canadian resident defendant intentionally aimed his defamatory comments at California, where many of the readers and bloggers of a website reside. Reversing, the Court of Appeal agreed with plaintiff, finding that the defendant purposely availed himself of forum benefits because his comments had a “California focus”, and were made on a website owned and operated by a California resident that had a California audience. He also communicated his plan to travel to California to bully plaintiff. The court found that the controversy was related to defendant’s contacts with California, and concluded that “plaintiff satisfied his burden of demonstrating Yang was subject to specific jurisdiction in California and that Yang failed to show the exercise of jurisdiction was unreasonable.” (Yue v. Yang  (Cal. App. 1st Dist., Div. 5, Mar. 8, 2021) 2021 WL 1179648.)

A Service Dog Need Not Be Formally Certified Under the ADA.

A woman with a post-traumatic stress disorder could not afford the $15,000 cost of a service dog, so she obtained a 16-pound dog and trained it to wake her from nightmares, to place itself on her lap and apply deep pressure when she experienced flashbacks, and to alert her when someone was approaching outside her sightline. The woman sought inpatient treatment at defendant hospital, and asked to bring her dog with her. The defendant hospital concluded the dog would interfere with the woman’s therapy and denied the request. Challenging the denial as a violation of the Americans with Disabilities Act (2 U.S.C. § 12101; ADA) and California’s Unruh Civil Rights Act (Civ. Code, § 51, subd. (b)), the woman sought injunctive relief only and waived any claim for damages. After a bench trial, the district court entered judgment in favor of the hospital, finding the woman did not show the dog was a service dog. Vacating the judgment, the Ninth Circuit stated: “[W]e hold that the district court erred by requiring [the dog] to meet formal certification standards to qualify as a service dog, because such a requirement is inconsistent with the ADA.”  (C. L. v. Del Amo Hospital, Inc. (9th Cir., Mar. 30, 2021) 2021 WL 1183017.)

A Presiding ALJ Cannot Exclude an Expert’s Testimony in an Administrative Hearing.

During an administrative hearing of a government agency, Podiatric Medical Board of California, the presiding administrative law judge (ALJ) barred a podiatrist’s expert from testifying because he declined to comply with the board’s discovery request. After the accusation against the podiatrist was sustained, he petitioned for a writ of administrative mandate pursuant to Government Code § 11400 et seq., which the trial court granted. On appeal, the board contended the power to exclude testimony to counter discovery abuse should be recognized as an implied power of an ALJ’s statutory authority under Government Code § 11512, subdivision (b). Treating the board’s appeal as a petition for writ of mandate, the court denied the writ, finding that the board failed to comply with the Administrative Procedure Act (Gov. Code, § 11340 et seq.) and stating: “The ruling to exclude Dr. Redko’s expert was made prior to the hearing by the presiding ALJ, not the ALJ who actually conducted the hearing. Thus, witness preclusion at issue here cannot be recognized as an implied power ‘relating to the conduct of the hearing.’ ” (Podiatric Medical Board of California v. Superior Court (Cal. App. 1st Dist., Div. 2, Mar. 30, 2021) 2021 WL 1183162.)

Forgot Password

Enter the email associated with you account. You will then receive a link in your inbox to reset your password.

Personal Information

Select Section(s)

CLA Membership is $99 and includes one section. Additional sections are $99 each.