Litigation Update: April 2022

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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, Jonathan Grossman, Jennifer Hansen, Judith Sklar, David Williams, Greg Wolff, Ryan Wu
Petition to Compel Arbitration Denied When the Employer Signed the Contract for the Employee.

Because plaintiff did not read, write, or speak English, a supervisor and an owner of the defendant business filled out plaintiff’s employment application. The application read: “I certify that I have read and understood all of this employment application. [¶] [¶] If hired, I agree to abide by all the rules and policies of the employer.” One of the rules and policies of the employer was an arbitration provision contained in an employee handbook. When the instant wage and hour class action was brought, the trial court denied defendant’s petition to order the matter into arbitration. Affirming, the Court of Appeal stated: “[T]he parties have not entered into either an express or an implied contract to arbitrate their disputes.” (Mendoza v. Trans Valley Transport (Cal. App. 6th Dist., Mar. 1, 2022) 75 Cal.App.5th 748.)

Exception to Compulsory Cross Complaint and Full Faith and Credit Clause.

Labor Code § 925 provides that employers cannot force an employee who resides and works primarily in California to agree, as a condition of employment, to litigate a claim arising in California in a forum outside of California. The employer petitioner in this writ proceeding sued its former employee in Utah. Thereafter the employee sued petitioner employer in California. Thus, § 925 came head to head with the compulsory cross-complaint requirements in both California and Utah. The trial court overruled the employer’s demurrer to the California action. Affirming, the Court of Appeal stated: “We are required to answer two related questions of first impression in this opinion. First, does section 925 provide an exception to California’s compulsory cross-complaint statute (Code Civ. Proc., § 426.30) such that an employee who comes within section 925’s purview may file a complaint in California alleging claims that are related to the causes of action their employer has filed against them in a pending action in a sister state? We conclude the answer to this question is yes. [¶] Second, if a related action was filed first and is still pending in a sister state (here, Utah), does the [Full Faith and Credit] Clause compel a state court (here, California) to extend credit to and apply the sister state’s compulsory cross-complaint statute? We conclude the answer to this question is no.” (LGCY Power, LLC v. Superior Court (Cal. App. 5th Dist., Mar. 1, 2022) 75 Cal.App.5th 844.)

City’s Summary Judgment Reversed After Its Police Officer Left His Gun Unsecured and Someone Was Killed with It. 

A police officer left his department-approved firearm unsecured in his vehicle after returning home from an assigned training session. That evening, his vehicle was burglarized, and the firearm stolen. Soon thereafter, plaintiff’s was killed with the weapon. Plaintiff sued the city, but the trial court granted the city’s motion for summary judgment, finding as a matter of law the officer’s conduct was not within the scope of his employment. Reversing, the Court of Appeal stated: “In the context of the enterprise of policing, a jury could reasonably find the officer’s failure to safely secure his weapon is ‘“‘not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.’”’” (Perez v. City and County of San Francisco (Cal. App. 1st Dist., Div. 5, Mar. 1, 2022) 75 Cal.App.5th 826.)

Twitter’s Case Involving Lifetime Ban of Donald Trump Tossed.

After the events at the U.S. Capitol on January 6, 2021, Twitter banned then-President Donald Trump for life. Soon after Twitter announced the ban, the Texas Office of the Attorney General served Twitter with a Civil Investigative Demand (CID) asking it to produce various documents relating to its content moderation decisions. In Twitter’s view, its content moderation decisions are protected speech because it is a publisher, and it has a First Amendment right to choose what content to publish. Twitter sued the Attorney General of Texas in a California federal court, arguing that the CID was government retaliation for speech protected by the First Amendment. The district court dismissed Twitter’s case as unripe. Thereafter, Twitter moved for an injunction pending appeal, which the trial court denied. Affirming, the Ninth Circuit stated: “The issues here are not fit for judicial decision because the facts require further development, and the relative hardships to the parties support delaying review. The case thus is not prudentially ripe . . . .” (Twitter, Inc. v. Paxton (9th Cir., Mar. 2, 2022) 26 F.4th 119.)

Previously we reported:
The State Secrets Privilege.

Petitioner is currently a prisoner in the Guantanamo Bay Naval Base in Cuba seeking to depose two individuals about torture he claims to have suffered. A federal district court quashed subpoenas after the government intervened and asserted the state secrets privilege. The Ninth Circuit explained: “The Supreme Court has long recognized that in exceptional circumstances, courts must act in the interest of the country’s national security to prevent the disclosure of state secrets by excluding privileged evidence from the case and, in some instances, dismissing the case entirely. See Totten v. United States, 92 U.S. 105 (1875); see also United States v. Reynolds, 345 U.S. 1 (1953).” The appeals court reversed and remanded for further proceedings, stating: “We conclude, however, that the district court erred in quashing the subpoenas in toto rather than attempting to disentangle nonprivileged from privileged information.” (Husayn v. United States (9th Cir., Sept. 18, 2019) 2019 U.S. App. LEXIS 28004.)

The latest:

The matter reached the U. S. Supreme Court. The detainee said the detention site where he was tortured was located in Poland. The Government moved to quash the subpoenas based on the state secrets privilege. That privilege allows the Government to bar the disclosure of information that, were it revealed, would harm national security. Reversing the Ninth Circuit, the nation’s highest court held: “Because any response to Zubaydah’s subpoenas allowed by the Ninth Circuit’s decision will have the effect of confirmation or denial (by the Government or its former contractors) of the existence of a CIA facility in Poland, the primary question for us must be whether the existence (or non-existence) of a CIA detention facility in Poland falls within the scope of the state secrets privilege. For the reasons that follow, we conclude that it does.” (United States v. Zubaydah (U.S., Mar. 3, 2022) 142 S.Ct 959.)

New Attorney General Wants to Defend Law Limiting Abortions.

In 2018, the Kentucky Legislature passed a law regulating a procedure, known as dilation and evacuation, used in performing abortions. A clinic that performs the procedure and two of its doctors filed an action to enjoin enforcement. Among the named defendants were Kentucky’s attorney general and the cabinet secretary for Health and Family Services. Plaintiffs dismissed the attorney general from the action. Both the district court and the the Sixth Circuit held the statute was unconstitutional. While the appeal pended, the attorney general was elected governor, and the state elected a new attorney general. The secretary for Health and Family Services, who serves at the pleasure of the governor, decided not to seek any further review. However, the new attorney general moved to withdraw as counsel for the secretary and to intervene as a party to take up defense of the law. The Sixth Circuit denied the new attorney general’s motion to intervene, and the U.S. Supreme Court granted review. The high court held the motion to intervene should have been granted. (Cameron v. EMW Women’s Surgical Center (U.S., Mar. 3, 2022) 142 S.Ct. 1002.)

Gentrification Theory.

The City of Los Angeles approved a project aimed at revitalizing a neighborhood in South Los Angeles through the renovation and expansion of an existing shopping mall and the construction of additional office space, a hotel, and new apartments and condominiums. A neighborhood advocacy group sued to enjoin the project under the federal Fair Housing Act (42 U.S.C. § 3601 et seq.) and California’s Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA). The group’s lawsuit rested on a “gentrification” theory—namely, that the project would lead to an influx of new, more affluent residents; that this influx would lead to increased rents and increased property values that would pressure the low-income residents who currently live near the project site; and that these higher rents would push the low-income residents out of their neighborhoods. Because a majority of the low-income residents are Black and Latinx, the group alleged, the project would have the effect of “mak[ing]” “dwellings” “unavailable” “because of race[ and] color” in violation of the disparate impact prong of the Fair Housing Act (and, thus, by extension, the FEHA). The trial court dismissed the group’s gentrification-based claims. Affirming, the Court of Appeal stated that “recognizing the group’s gentrification theory would obligate the City to ‘use[] and consider[]’ race in making local planning decisions, and thus the group’s gentrification theory is not cognizable under the Fair Housing Act (and, by extension, the FEHA).” (Crenshaw Subway Coalition v. City of Los Angeles (Cal. App. 2nd Dist., Div. 2, Mar. 3, 2022) 75 Cal.App.5th 917.)

A Deal Made at Mediation Is a Deal. But a Concurring Justice Says the Requirement of Confidentiality Was Designed to Prohibit Plaintiff from Reporting Defendant Doctor to Medical Board.

In a medical malpractice case, both parties and their counsel signed a settlement agreement at a mediation, one paragraph of which provided in part that plaintiff “w[ould] execute a release of all claims, including waiver of Civil Code [section] 1542, in a more comprehensive settlement agreement . . . ; said release to include a provision for mutual confidentiality as to the facts of the underlying case, the terms and amount of this agreement.” The parties thereafter communicated for many months as to the terms of the “more comprehensive settlement agreement” and “a provision for mutual confidentiality,” to no avail, in the course of which plaintiff discharged her attorney and, representing herself, advised defendant doctor’s attorney that she would only comply with a provision for confidentiality if she received $525,000. Still representing herself, plaintiff sued defendant doctor in a one-count complaint alleging breach of contract. Plaintiff retained new counsel, and the case proceeded to a short bench trial. At the conclusion, the trial court issued a 13-page statement of decision finding against plaintiff “because she ha[d] not signed a ‘more comprehensive settlement agreement’ and release which includes a provision for mutual confidentiality.” Affirming the trial court’s judgment, the Court of Appeal stated, plaintiff “was not excused from executing a more comprehensive settlement agreement containing a confidentiality provision” (capitalization omitted). It is noteworthy that a justice concurring in the judgment wrote it was concerning that “the confidentiality provisions repeatedly insisted upon by [defendant doctor] were designed to prohibit [plaintiff] from contacting or filing a complaint with the Medical Board of California (Board) in violation of statutes regulating the practice of medicine.” (Pappas v. Chang (Cal. App. 1st Dist., Div. 2, Mar. 3, 2022) 75 Cal.App.5th 975.)

U.S. Supreme Court Holds the Death Sentence of the Boston Marathon Bomber Should Not Have Been Vacated.

At the 2013 Boston Marathon, two brothers killed three people and injured hundreds of others in a terrorist bombing. One of the brothers accidently killed the other while the two fled. The surviving brother was sentenced to death. The First Circuit vacated his death sentence. Reversing, the U.S. Supreme Court found the trial court did not abuse its discretion while questioning the jury during voir dire about exposure to media coverage. The high court also found the trial court did not abuse its discretion in excluding evidence the dead brother committed other murders, which the defense intended to use to demonstrate that the dead brother was the ringleader. (United States v. Tsarnaev (U.S., Mar. 4, 2022) 142 S.Ct. 1024.)

Previously we reported:
Anti-Muslim Discrimination Alleged Against the FBI.

Three Muslim residents of Southern California allege that, for more than a year, the FBI paid a confidential informant to conduct a covert surveillance program that gathered information about Muslims based solely on their religious identity. The three plaintiffs filed a putative class action against the United States, the FBI, and two FBI officers in their official capacities, and against five FBI agents in their individual capacities. Alleging that the investigation involved unlawful searches and anti-Muslim discrimination, they pleaded eleven constitutional and statutory causes of action. The government asserted the state secrets privilege and moved to dismiss the discrimination claims, but not the Fourth Amendment or the Foreign Intelligence Surveillance Act (FISA) claims. Both the government and the individuals moved to dismiss plaintiffs’ discrimination and unlawful search claims based on arguments other than privilege. A federal trial court dismissed all but the FISA claim. Plaintiffs appealed the dismissal of their claims, and the individual agents appealed the denial of qualified immunity on the FISA claim. In a 103-page opinion, the Ninth Circuit concluded that some of plaintiffs’ claims stated a cause of action and that the individual agents were entitled to immunity on some but not all causes of action. The matter was remanded for further action in the trial court. (Fazaga v. Federal Bureau of Investigation (9th Cir., Feb. 28, 2019) 965 F.3d 1015, 1052.)

The latest:

The U.S. Supreme Court noted that, in reversing the trial court, the Ninth Circuit held that the Foreign Intelligence Surveillance Act of 1978 (FISA) displaced the state secrets privilege. The high court reversed the judgment of the Ninth Circuit, holding that FISA does not displace the state secrets privilege. (Federal Bureau of Investigation v. Fazaga (U.S., Mar. 4, 2022) 141 S.Ct. 2720.)

Killing One Owl Species to Protect Another.

The Northern spotted owl is an endangered species. The barred owl population is expanding and encroaching on the spotted owl’s habitat. The United States Fish and Wildlife Service (FWS) introduced a “barred owl removal experiment.” It proposed lethally removing barred owls from certain areas to measure their environmental and demographic effect on the northern spotted owl. An environmental group sued FWS, claiming the experiment violates the Endangered Species Act (ESA) and the National Environmental Policy Act. The group contended that the ESA prohibits the government from taking action that may incidentally harm spotted owls or their habitat unless it provided a net conservation benefit. The district court dismissed the action. Affirming, the Ninth Circuit held that the experiment will produce a net conservation benefit. (Friends of Animals v. United States Fish and Wildlife Service (9th Cir., Mar. 4, 2022) 28 F.4th 19.)

Financial Elder Abuse Judgment Upheld Against Life Insurance Company.

Plaintiff asked a paralegal to amend a family trust after his wife died. Instead, he was sold a $100,000 annuity. He returned the annuity within the 30-day “free look” period. Instead of immediately returning plaintiff’s $100,000, the life insurance company defendant contacted the paralegal to prevail upon plaintiff to keep the annuity. He did not. The paralegal signed plaintiff’s name and ordered a second annuity. To cancel the second one, the life insurance company, required plaintiff to pay an almost $15,000 surrender cost. A jury awarded compensatory and punitive damages totaling $3 million. Affirming the judgment finding the insurance company liable for negligence and financial elder abuse, the Court of Appeal noted the Legislature treats life insurance companies differently from other insurance companies and stated: “Absent notice to the insured, an insurer is liable for the acts of an agent that are within the ordinary scope and limits of the insurance business entrusted to the agent, even if they are in violation of private instructions and restrictions on the agent’s authority.” The court reversed the award of punitive damages, finding the evidence merely showed negligence. (Williams v. National Western Life Insurance Company (Cal. App. 3rd Dist., Mar. 4, 2022) 75 Cal.App.5th 1079.)

Arbitration Denied in Elder Abuse Case.

A resident of a residential care facility died of heat stroke. His family sued for elder abuse and wrongful death. When the decedent was admitted to the facility, his son signed an arbitration agreement. The trial court denied the facility’s petition to compel arbitration. On appeal, the facility based its agency argument on the son’s apparent belief that he had the authority to sign the admission papers on his father’s behalf. Noting there was no evidence in the appellate record that any conduct on decedent’s part justified a belief by the facility that the son had the authority to sign the agreement on his father’s or other family members’ behalf, the Court of Appeal affirmed the trial court’s denial of defendant’s petition to arbitrate. (Rogers v. Roseville SH, LLC (Cal. App. 3rd Dist., Mar. 4, 2022) 75 Cal.App.5th 1065.)

Overzealous Advocacy.

After an action involving a landlord and a tenant in a mobile home residency dispute concluded in favor of the landlord, the landlord brought the instant action for malicious prosecution against the attorneys who represented the tenants in the earlier case. The trial court found as matter of law that the attorneys had no probable cause to maintain the suit. A jury awarded $171,465.09 in compensatory damages to the landlord. It also awarded punitive damages of $315,000 against one of the lawyers and $30,000 against a second lawyer. Finding no error, the Court of Appeal affirmed. (LA Investments, LLC v. Spix (Cal. App. 2nd Dist., Div. 3, Mar. 4, 2022) 75 Cal.App.5th 1044.)

Family Courts May Consider Whether a Spousal Support Agreement Is Unconscionable Both at the Time of Execution and the Time of Enforcement.

In a long-litigated divorce case, the Court of Appeal held: “[I]n considering whether a spousal support agreement executed between 1986 and 2002 is enforceable, the court is not limited to a determination under Family Code section 1615, subdivision (a)(2) whether the agreement was unconscionable when executed. Rather, the court retains the power under Family Code section 1612, subdivision (a)(7) to shape public policy regarding premarital spousal support agreements to the extent not inconsistent with Legislative declarations of such policy, and to declare that a premarital spousal support agreement is unenforceable as against public policy solely because it is unconscionable at the time of enforcement.” (In re Marriage of Zucker (Cal. App. 2nd Dist., Div. 4, Mar. 4, 2022) 75 Cal.App.5th 1025.)

Convictions Arising from a Single Criminal Episode.

Under the Armed Career Criminal Act (18 U.S.C. § 922(g); ACCA), if an offender has three prior convictions for violent felonies, that were committed on occasions different from one another, an enhanced term of 15 years in prison is imposed. On one night in 1997, a criminal defendant burglarized ten separate storage units located in a one-building storage facility. In 2014, he was arrested for being a felon in possession of a firearm. The lower courts imposed the enhanced 15-year sentence. Reversing, the U. S. Supreme Court stated: “The question presented is whether Wooden’s prior convictions were for offenses occurring on different occasions, as the lower courts held, because the burglary of each unit happened at a distinct point in time, rather than simultaneously. The answer is no. Convictions arising from a single criminal episode, in the way Wooden’s did, can count only once under ACCA.” (Wooden v. United States (U.S., Mar. 7, 2022) 142 S.Ct. 1063.)

Must Be Plausible to Amount to a Conspiracy.

Plaintiffs claimed that defendants, three of the largest global manufacturers of dynamic random access memory (DRAM), conspired to coordinate their actions when they contemporaneously reduced their DRAM production in violation of antitrust law. The district court dismissed the action. Affirming, the Ninth Circuit stated: “Because Plaintiffs’ allegations do not amount to the ‘something more’ required by our precedent to make their claims plausible, we affirm the judgment of the district court dismissing Plaintiffs’ amended complaint.” (In re Dynamic Random Access Memory (DRAM) Indirect Purchaser Antitrust Litigation (9th Cir., Mar. 7, 2022) 28 F.4th 42.)

Lost Profits Under the Lanham Act.

A jury found that defendants had engaged in materially false or misleading advertising about their competing whale-watching-cruise business in violation of the Lanham Act (15 U.S.C. § 1052(a)). The act provides for trademark registration against the use of similar marks if such use is likely to result in consumer confusion. The jury declined to award the equitable remedy of disgorgement of profits and returned a verdict of $0 damages. The district court then issued a permanent injunction prohibiting defendants from engaging in specified future acts of false advertising, and denied plaintiff’s request for attorney fees. Reversing, the Ninth Circuit found the lower court erred in instructing the jury that plaintiffs had to show defendants acted willfully, remanding the matter for a new trial on the issue of lost profits. The appeals court also vacated the lower court’s attorney fee determination. (Harbor Breeze Corporation v. Newport Landing Sportfishing (9th Cir., Mar. 7, 2022) 28 F.4th 35.)

Party Proposing Introduction of Prior Recorded Testimony Bears the Burden of Establishing Requirements for Admission Based on Hearsay Exception.

Plaintiffs wanted to use the prior testimony of witnesses—who were now unavailable—at trial. Defendant moved to exclude the videotaped testimony of nine unavailable witnesses on hearsay grounds, arguing the hearsay exception for prior recorded testimony under Evidence Code § 1291(a)(2) did not apply because defendant did not have “the right and opportunity to cross-examine the [witnesses] with an interest and motive similar to that which” he would have in the present trial. The trial court granted defendant’s motion. The Court of Appeal issued a writ of mandate, directing the trial court to issue a new order denying defendant’s motion. Reversing, the California Supreme Court concluded that the Court of Appeal’s “analysis [wa]s incompatible with (1) the established principle that the party proposing to introduce evidence under section 1291(a)(2)’s former testimony exception to the hearsay rule bears the burden of establishing the requirements for admission, and (2) the Legislature’s official comment, reflecting its understanding when it enacted the provision at issue as part of the Evidence Code in 1965.” (Berroteran v. Superior Court of Los Angeles County (Cal., Mar. 7, 2022) 12 Cal.5th 867.)

Lender Has No Tort Duty to Process, Review, and Respond to a Loan Modification Application.

The California Supreme Court addressed an “issue dividing the lower courts: Does a lender owe the borrower a tort duty sounding in general negligence principles to (in plaintiff’s words) ‘process, review and respond carefully and completely to [a borrower’s] loan modification application,’ such that upon a breach of this duty the lender may be liable for the borrower’s economic losses — i.e., pecuniary losses unaccompanied by property damage or personal injury?” The Court concluded “there is no such duty, and thus [defendant’s] demurrer to plaintiff’s negligence claim was properly sustained.” (Sheen v. Wells Fargo Bank, N.A. (Cal., Mar. 7, 2022) 12 Cal.5th 905.)

The First Amendment and Anti-Police Activities.

Plaintiffs are members of a local activist group critical of law enforcement. Since 2011, Plaintiffs have conducted protests by using chalk to write anti-police messages on the sidewalks of Las Vegas, Nevada. In response to increased chalking activity and incurred cleaning costs, the City of Las Vegas told the police that it was willing to prosecute individuals who police observed chalking the sidewalks. A police officer observed plaintiffs chalking and asked them to stop, but they continued. The officer thereafter issued a citation under Nevada’s graffiti statute. On the day of their court hearing, plaintiffs chalked such statements as “F*** the cops” on the sidewalk in front of the courthouse. That courthouse chalking spanned about 1,000 sq. feet and cost $1,250 to clean up. Plaintiffs were arrested the next week. After criminal charges were filed and later dropped, plaintiffs sued various public entities and officers for violation of their civil rights under 42 U.S.C. § 1983. The district court granted summary judgment for defendants. The Ninth Circuit affirmed in part and reversed in part, noting that a reasonable officer in the arresting officer’s position had fair notice that the First Amendment prohibited arresting plaintiffs for the content of their speech, and held the arresting officer was not entitled to qualified immunity. (Ballentine v. Tucker (9th Cir., Mar. 8, 2022) 28 F.4th 54.)

Filing a Successful Motion to Disqualify a Judge Under Code of Civil Procedure § 170.6 After the Judge Made a Ruling Does Not Render the Ruling Void.

In a battle over a conservatee’s estate, a probate court issued an elder abuse restraining order (EARO), restraining the family of the conservatee’s second wife from, among other things, financially abusing the conservatee, contacting him, facilitating any change to his estate plan, and coming within 100 yards of him. After the court issued the order, the losing party filed a peremptory challenge to the judge under Code of Civil Procedure § 170.6, which the judge accepted and removed himself from the case. On appeal, the losing party argued the EARO was void because the judge was disqualified when the EARO was issued. The Court of Appeal held that the previously-issued EARO was not void, noting that when a litigant files a § 170.6 motion, there is no requirement of proof of facts showing the judge is actually prejudiced, but only that the party believes the judge is prejudiced. (White v. Wear (Cal. App. 4th Dist., Div. 2, Mar. 8, 2022) 76 Cal.App.5th 24.)

When a Ruling on a Petition For Writ of Administrative Mandate Is a Final Judgment.

Plaintiff brought a petition for writ of administrative mandate in the trial court. The trial court completely resolved all the issues in a document with a caption that read “ORDER,” not “JUDGMENT.” Another document entitled “JUDGMENT” was filed later. Plaintiff appealed from the later judgment. The Court of Appeal dismissed the appeal as untimely because it should have been filed based on the earlier document that resolved all the issues, even though that document was not titled “JUDGMENT.” (Meinhardt v. City of Sunnyvale (Cal. App. 4th Dist., Div. 1, Mar. 9, 2022) 76 Cal.App.5th 43.)

No Copyright Infringement.

Plaintiffs are hip-hop artists who sued Katy Perry for copyright infringement. They claimed that an ostinato—a continually repeated musical phrase or rhythm—in Perry’s song “Dark Horse” copied a similar ostinato in one of their songs. A jury awarded plaintiffs $2.8 million in damages. The district court vacated the award, finding the evidence at trial was legally insufficient to show that the ostinato was copyrightable original expression. Affirming, the Ninth Circuit stated: “Copyright law protects ‘musical works’ only to the extent that they are ‘original works of authorship.’ 17 U.S.C. § 102(a). The trial record compels us to conclude that the ostinatos at issue here consist entirely of commonplace musical elements, and that the similarities between them do not arise out of an original combination of these elements. Consequently, the jury’s verdict finding defendants liable for copyright infringement was unsupported by the evidence.” (Gray v. Hudson (9th Cir., Mar. 10, 2022) 28 F.4th 87.)

Gender Reassignment Surgeries.

Two teenage transgender individuals filed this class action against Arizona’s Medicaid program, which precludes coverage for gender reassignment surgeries. Plaintiffs contended that program violates federal law and is unconstitutional; a third plaintiff asserted the exclusion of gender reassignment surgeries in Arizona constitutes sex discrimination. The district court denied plaintiffs’ request for a preliminary injunction and plaintiffs appealed. As to denial of coverage for the surgeries, the Ninth Circuit concluded: “On this preliminary record, given facts specific to Doe and the irreversible nature of the surgery, Doe has not shown that the district court’s findings are ‘illogical, implausible, or without support in inferences that may be drawn from the facts in the record.’” As to the denial of the third plaintiff’s request for a preliminary injunction, the court held the plaintiff had not made a compelling showing of irreparable harm. (Doe v. Snyder (9th Cir., Mar. 10, 2022) 28 F.4th 103.)

Family Court Erred in Not Stating Its Reasons on the Record or in Writing.

The trial court denied plaintiff’s request for a restraining order against her ex-husband. Family Code § 3044 establishes a rebuttable presumption that an award of joint or sole custody to a parent who has perpetrated domestic violence is not in a child’s best interests. Reversing and remanding, the Court of Appeal found the trial court erred in not failing to state its reasons on the record or in writing for finding the presumption under Family Code § 3044 rebutted. (Abdelqader v. Abraham (Cal. App. 4th Dist., Div. 1, Mar. 10, 2022) 76 Cal.App.5th 186.)

Family Court Erred in Visitation Order.

Family Code § 3044 creates a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence within the past five years against the other party seeking custody is detrimental to the child. If the court determines the presumption has been rebutted, the court must state its reasons in writing or on the record. Here, the trial court issued a restraining order protecting a mother from the father of a young child and, citing the statute, granted the mother sole legal and physical custody, but left intact a visitation schedule under which the child lived with each parent approximately half time. Reversing, the Court of Appeal concluded that the trial court abused its discretion “in ordering a visitation schedule that amounted to joint custody after finding father committed domestic violence against mother and awarding sole legal and physical custody to mother pursuant to . . . section 3044. It further erred in refusing mother’s request for a statement of decision. The errors are prejudicial, as the record offers no explanation to reconcile the orders and demonstrate the court found the presumption rebutted.” (City and County of San Francisco v. H.H. (Cal. App. 1st Dist., Div. 2, Mar. 18, 2022) 2022 WL 822877.)

Summary Judgment Reversed in Case Involving Sexual Assault of a Patient.

A handyman sexually assaulted Jane IL Doe at a residence for the disabled, when Doe was in her 20s. Doe sued the residence and its owners for failing to protect her. The trial court granted summary judgment on the ground that the attack was unforeseeable. In resolving the summary judgment motion, the trial court excluded a double hearsay statement on a police report from one of the facility’s owners that the owners knew the handyman loitered around the facility and harassed female employees. On appeal, the Court of Appeal considered the hearsay statement in the police report one step at a time. At level one, the appeals noted, the owner’s statement was an admission of a party opponent under Evidence Code § 1220, and at level two, the police report itself was an official record under Evidence Code § 1280. There was also a notation in the police report that an employee of the facility noticed interactions between the handyman and Doe that a trier of fact might find indicated intimacy. The Court of Appeal reversed the summary judgment, concluding that the trial court abused its discretion by excluding this evidence. Another issue in the case concerned defendants’ duty to protect against a third party’s criminality. The appeals court held the defendants had a duty to take cost-effective measures to protect Doe from foreseeable harm from people like the handyman. (Doe v. Brightstar Residential Incorporated (Cal. App. 2nd Dist., Div. 8, Mar. 10, 2022) 76 Cal.App.5th 171.)

Plaintiff May Proceed Against Amazon for Prop 65 Violation.

Under legislation enacted in 1986 as Proposition 65, businesses are prohibited from knowingly and intentionally exposing any individual to certain chemicals without first providing a warning. Plaintiff seeks to hold, Inc., accountable for offering on its website, without warnings, certain skin-lightening face creams sold by third parties and alleged to contain mercury. The trial court concluded that Amazon was immune from liability under the federal Communications Decency Act (47 U.S.C. § 230) and also that plaintiff failed to establish several elements of his case under Proposition 65. Reversing, the Court of Appeal stated: “In sum, the trial court’s stated reasons for concluding that a laboratory test finding a high level of mercury in one unit of a skin-lightening cream is an insufficient basis for inferring other units of the same product contain mercury do not withstand scrutiny. . . . We conclude the trial court erred in ruling that Lee was required to prove Amazon had actual knowledge the products at issue contained mercury and excluding evidence of constructive knowledge. . . . If a skin-lightening cream is sold in a brick-and-mortar drug store that was aware the product contained mercury, there is no question that retail seller would have some obligation to provide Proposition 65 warnings . . . .” (Lee v., Inc. (Cal. App. 1st Dist., Div. 2, Mar. 11, 2022) 76 Cal.App.5th 200.)

Forum Selection, Non-Compete, Non-Solicitation Clauses in Employment Contract Void Under California Law.

A contract of employment included a restrictive one-year non-compete clause, as well as forum-selection and choice-of-law clauses requiring adjudication of contract disputes in New Jersey. The district court denied defendant employer’s motion to transfer an action brought by a former employee from California to New Jersey, relying on Labor Code § 925, which states: “An employer shall not require an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would . . . Require the employee to adjudicate outside of California a claim arising in California [and/or] Deprive the employee of the substantive protection of California law with respect to a controversy arising in California.” The Ninth Circuit considered whether federal or state law governed the validity of the forum-selection clause. The panel held that the state law applied here, concluded that § 925(b) grants employees the option to void a forum-selection clause under a limited set of circumstances, and affirmed denial of the transfer. (DePuy Synthes Sales, Inc. v. Howmedica Osteonics Corp. (9th Cir., Mar. 14, 2022) 28 F.4th 956.)

Losing Party May Not Appeal Discovery Orders in an Appeal from Judgment Confirming an Award in Uninsured Motorist Arbitration Proceedings.

A trial court deemed requests for admissions to be admitted by plaintiff in an uninsured motorist arbitration. Later, the court confirmed an arbitration award in favor of the insurance company. On appeal, the Court of Appeal noted that in typical arbitration proceedings, discovery disputes are resolved by the arbitrator, but in uninsured motorist arbitrations, discovery disputes are resolved by the court. The issue here was whether discovery orders in uninsured motorist proceedings (like the trial court’s order deeming a request for admission to be admitted) are reviewable on appeal from a judgment confirming an arbitration award. The Court of Appeal held that they are not. Code of Civil Procedure § 1286.2 “sets forth the exclusive grounds upon which appellate courts may vacate a judgment confirming an arbitration award, and a trial court error in issuing a discovery ruling is not among them. As a result, a party’s recourse to challenge an allegedly improper discovery ruling in an uninsured-motorist arbitration proceeding is through a timely petition for a writ of mandamus.” (State Farm Mutual Automobile Insurance Company v. Robinson (Cal. App. 1st Dist., Div. 1, Mar. 14, 2022) 76 Cal.App.5th 276.)

Is an Agent of an Employer Liable for Employment Discrimination Under FEHA?

Plaintiffs represent themselves and a class of job applicants who contend that defendants, who provide pre-employment medical screenings, asked invasive and impermissible questions during medical screening exams. Plaintiffs seek to hold defendants liable, even though they are not the employers here. The Ninth Circuit certified a question to the California Supreme Court: “Does California’s Fair Employment and Housing Act, which defines ‘employer’ to include ‘any person acting as an agent of an employer,’ Cal. Gov’t Code § 12926(d), permit a business entity acting as an agent of an employer to be held directly liable for employment discrimination?” We await further developments. (Raines v. U.S. Healthworks Medical Group (9th Cir., Mar. 16, 2022) 28 F.4th 968.)

Parenting Not Parentage

Three people decided to have a baby after spending more than 15 years together in a committed polyamorous relationship. We’ll call them 1, 2 and 3. The idea was for 1 and 2 to be the biological parents; 3 would then adopt the child, while 1 and 2 would maintain their parental rights. All of them would share equally in parenting rights and responsibilities. They entered into a written contract, the baby was born, and 3 began adoption proceedings. Meanwhile, all three continued to share equally in parenting the baby. They jointly discussed and agreed upon parenting decisions, and the baby sought out all of them for comfort, complained to them when hungry, and giggled at their efforts to amuse him. The social services agency found a parent-child relationship to be well established and recommended that the court grant 3’s adoption request. The court, however, denied the adoption. Relying on the Uniform Parentage Act (Fam. Code, § 7612, subd. (c)), it found that not enough time had passed to “to establish the type of relationship that would make this one of the ‘rare cases’ where ‘recognizing only two parents would be detrimental to the child.’” Reversing and remanding, the Court of Appeal noted that adoptions are purely statutory, and governed by Division 13 of the Family Code—not by the Uniform Parentage Act. The judgment was remanded so the trial court could exercise its discretion under the correct statutes, which do not involve a “detriment” inquiry. Instead, the relevant statutes simply “permit a child to have more than two parents if the child’s best interests are served by an adoption.” (Adoption of E.B. (Cal. App. 3rd Dist., Mar. 16, 2022) 2022 WL 795764.)

Academic Deference vs. Employer-Employee Relationship.

A medical resident in an internal medicine program at a hospital was dismissed after completing her second year of a three-year program. She filed the instant action, contending her dismissal was retaliatory and based on gender discrimination. In instructing the jury, the trial court told the jury that defendant hospital was entitled to academic deference. The jury returned a verdict in favor of the hospital. Analyzing the case, the appeals court noted that courts exercise a highly deferential and limited standard of review in actions challenging the academic decision of a private university regarding a student’s qualifications for a degree. Reversing nevertheless, the Court of Appeal stated: “the predominant relationship between a medical resident and a hospital residency program is an employee-employer relationship, and so academic deference does not apply to the jury’s determination whether the resident was terminated for discriminatory or retaliatory reasons. . . . Dr. Khoiny presented credible evidence of gender discrimination and retaliation . . . , and there is a reasonable probability that, in the absence of the erroneous jury instruction, she would have obtained a more favorable verdict.” (Khoiny v. Dignity Health (Cal. App. 2nd Dist., Div. 8, Mar. 16, 2022) 2022 WL 794826.)

Court Has Discretion to Deny Attorney Fees Under Public Records Act.

Plaintiff filed a petition in the trial court under the California Public Records Act (Gov. Code, § 6250 et seq.; CPRA) seeking to compel defendant to produce certain categories of documents. The trial court granted the petition in part, and defendant appealed from a postjudgment order awarding attorney fees of $71,075.75. On appeal, defendant contended the trial court erred in concluding it had no discretion under the CPRA to deny attorney fees. The argument was premised on the assertion that, even though § 6259, subdivision (d) provides the court “shall” award attorney fees to the requester should the requester prevail in litigation, the trial court has discretion to deny attorney fees when the plaintiff obtains documents that are so minimal or insignificant as to justify a finding that the plaintiff did not prevail. Reversing, the Court of Appeal agreed with this premise: “[T]he trial court has discretion to deny attorney fees under the CPRA in some circumstances and . . . the minimal or insignificant standard is applicable when the requester obtains only partial relief under the CPRA.” (Riskin v. Downtown Los Angeles Property Owners Association (Cal. App. 2nd Dist., Div. 3, Mar. 17, 2022) 2022 WL 805377.)

School District’s Alleged Retaliatory Actions to Vendor Who Made Controversial Statements on Social Media.

Defendant school district severed its longstanding business relationship with a company that provides field trip venues for public school children after the principal shareholder of the field trip vendor made controversial tweets on his personal social media account, and some parents complained. The field trip vendor and its shareholder sued the responsible public school officials under 42 U.S.C. § 1983 for violating their First Amendment rights. The district court granted summary judgment for the school district. Affirming in part and reversing in part, the Ninth Circuit concluded “there is a genuine issue of material fact whether the plaintiffs’ First Amendment rights have been violated, but the school officials are entitled to qualified immunity as to the plaintiffs’ damages claims because the right at issue was not clearly established when the conduct took place. However, the district court erred in granting summary judgment to the school officials on the plaintiffs’ claim for injunctive relief, because there is a genuine issue of material fact whether the school officials are maintaining an unconstitutional, retaliatory policy barring future patronage to the vendor.” (Riley’s American Heritage Farms v. Elsasser (9th Cir., Mar. 17, 2022) 29 F.4th 484.)

“When in Rome, do as the Romans do,” 1777 Letter of Pope Clement XIV.

The State of Kuwait’s Consulate in Los Angeles employed plaintiff as an administrative assistant. She filed suit alleging that she had been constructively terminated due to discrimination based on her religion, gender, and national origin. She also alleged other violations of California’s employment laws. The consulate moved to dismiss the action based inter alia on sovereign immunity. The district court denied the motion, finding that it had jurisdiction under the commercial activity exception to the Foreign Sovereign Immunities Act. (28 U.S.C. § 1602 et seq.) The consulate appealed, arguing that plaintiff was part of its civil service and that her duties included “powers peculiar to sovereigns.” Affirming, the Ninth Circuit stated: “the [c]onsulate has not shown that the district court abused its discretion in finding that [p]laintiff was not a civil servant and that her duties as an employee who is not a diplomat, civil servant, or military officer, did not include ‘powers peculiar to sovereigns.’” (Mohammad v. General Consulate of State of Kuwait in Los Angeles (9th Cir., Mar. 17, 2022) 28 F.4th 980.)

Regulatory Board Members Can Commit Antitrust Violations.

A district court dismissed an antitrust action brought by a dentist and his dental company that makes it cheaper, easier, and more convenient for patients to access orthodontic services, namely clear teeth aligners. Plaintiffs alleged that incumbents in the dental and orthodontia markets have illegally conspired to shut down its business model and that persons who sit on dental regulatory boards who oversee the practice of dentistry are also involved in anti-competitive acts. Reversing dismissal of the persons who sit on the regulatory boards, the Ninth Circuit rejected the contention that regulatory board members and employees cannot form an anticompetitive conspiracy when acting within their regulatory authority. (SmileDirectClub, LLC v. Tippins (9th Cir., Mar. 17, 2022) 29 F.4th 513.)

Ninth Circuit Says Lower Court Put Its Thumb on the Scale in Remand Proceedings

In a wage and hour class action, plaintiffs filed the case in state court and defendants removed to federal court. Plaintiff moved to remand for lack of jurisdiction. The district court found that defendant failed to meet its burden to establish the requisite $5 million minimum for the amount in controversy and remanded to state court. Reversing, the Ninth Circuit stated: “The two primary errors affecting the remand order were putting a thumb on the scale against removal and assigning a $0 amount to most of the claims simply because the court disagreed with one or more of the assumptions underlying Roadrunner’s amount in controversy estimates.” (Jauregui v. Roadrunner Transportation Services, Inc. (9th Cir., Mar. 17, 2022) 28 F.4th 989.)

Prop 65 and Acrylamide.

Acrylamide is used in various foods and beverages. Proposition 65 (Prop. 65) provides that “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer . . . without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.” (Cal. Health & Safety Code, § 25249.6.) The district court granted a preliminary injunction seeking to halt acrylamide litigation brought under Prop. 65. Analyzing the case, the Ninth Circuit noted that: (1) the National Cancer Institute stated that “a large number of epidemiologic studies . . . have found no consistent evidence that dietary acrylamide exposure is associated with the risk of any type of cancer[;]” (2) the American Cancer Society stated that studies “suggest that dietary acrylamide isn’t likely to be related to risk for most common types of cancer[;]” and (3) that the Federal Drug Administration has stated that “warning labels based on the presence of acrylamide in food might be misleading.” Affirming, the appeals court concluded the lower court did not abuse its discretion. (California Chamber of Commerce v. Council for Education & Research on Toxics (9th Cir., Mar. 17, 2022) 2022 WL 804104.)

“LSMFT . . . Lucky Strike Means Fine Tobacco,” 1960s TV Ad for Cigarettes.

In 2009, the Family Smoking Prevention and Tobacco Control Act went into effect. (Pub. L. No. 111–31, 123 Stat. 1776 (2009); codified at 21 U.S.C. § 387 et seq.; TCA.) The TCA authorizes the Federal Drug Administration to regulate tobacco products and expressly preempts contrary state or local regulations, while also expressly preserving and saving from preemption other state and local regulatory authority over tobacco. Los Angeles County banned the sale of all flavored tobacco products. Multiple tobacco companies challenge that ban, arguing federal preemption and moving for a preliminary injunction. The district court denied the injunction and then dismissed the case. Affirming, the Ninth Circuit held the county’s ban was neither expressly nor impliedly preempted by the TCA. (R.J. Reynolds Tobacco Company v. County of Los Angeles (9th Cir., Mar. 18, 2022) 2022 WL 816603.)

Fraud Action Preempted by the National Labor Relations Act.

According to plaintiff, defendant employer promised him that if he convinced all of his fellow employees to “sign away” their union rights, they would each receive a ten percent raise. Once plaintiff obtained signatures from his co-workers releasing their union rights, defendant gave a ten percent raise to plaintiff but not to the other employees who signed. Plaintiff complained and defendant fired him. He sued for fraud. The district court dismissed the action, finding his claims preempted by the National Labor Relations Act (29 U.S.C. § 151 et seq.; NLRA.). Affirming, the Ninth Circuit noted: “When Moreno received a raise and other employees did not, the NLRB could consider Moreno’s advocacy for his fellow coworkers to be ‘concerted activity.’” (Moreno v. UtiliQuest, LLC (9th Cir., Mar. 18, 2022) 29 F.4th 567.)

Employer Had No Duty to Protect Working-At-Home Employee.

A young man with a mental health condition suddenly fired a handgun at family members and guests inside his family home. His mother’s coworker and a business associate were among the injured, who were both involved in work-related activities with the mother and stepfather at the time. Defendant employed the injured worker, who sued the employer. The trial court denied defendant’s motion for summary judgment and defendant sought extraordinary relief in the Court of Appeal. Issuing a writ of mandate, the appeals court stated: “An employer has an affirmative duty to provide employees with a safe place to work. . . . Our analysis of cases relating to plaintiffs’ theories and the Rowland factors [Rowland v. Christian (1968) 69 Cal.2d 108,] leads us to the conclusion that an employer does not have a duty to protect working-at-home employees from third party criminal conduct as a matter of law.” (Colonial Van & Storage, Inc. v. Superior Court (Cal. App. 2nd Dist., Div. 2, Mar. 18, 2022), 2022 WL 819115.)

State Employer Was Untimely in Attempt to Void Employee’s Appointment.

Plaintiff worked for the California’s Public Employees’ Retirement System (CalPERS) until CalPERS voided her appointment at the direction of the State Personnel Board (SPB). Pursuant to Government Code § 19257.5, the SPB may direct a state employer to void a civil service appointment if the SPB determines that the employee lacks the minimum qualifications for the position and does so “within one year after the appointment.” Plaintiff filed a petition for writ of mandate in the trial court, contending she had worked for more than a year and that CalPERS and SPB were untimely in attempting to void her appointment. Following the trial court’s issuance of a writ of mandate, defendants contended on appeal that the date of appointment must refer to when the new hire starts working in a new position for a state employer. Affirming the judgment, the Court of Appeal stated: “We conclude that the trial court correctly determined that the express language of [Gov. Code] section 18525 defines the term “appointment” to refer to the dates of offer and acceptance.” (Michaels v. State Personnel Board (Cal. App. 3rd Dist., Mar. 21, 2022) 2022 WL 831202.)

Religious Assemblies.

An evangelical church purchased a two-story building in a downtown area where it intended to host worship services on the first floor, and build classrooms, offices, storage space and a kitchen on the second floor. Before the church went through with the purchase, the city advised it that it would not be permitted to conduct worship services on the ground floor because of the zoning code specifically prohibits “[c]lubs, lodges, places of religious assembly, and similar assembly uses” from operating on the “ground floor of buildings facing Main Street within the Downtown Core Area.” Undeterred, the church unsuccessfully sought a zoning code amendment and a conditional use permit. Upon denial of its requests, the church filed suit, alleging violations of the Religious Land Use and Institutionalized Persons Act’s (42 U.S.C. §§ 2000cc et seq.; RLUIPA) equal terms and substantial burden provisions. The church sought, among other remedies, injunctive relief, declaratory relief, nominal and economic damages, and attorneys’ fees. After discovery, both sides sought summary judgment. The district court granted the city’s motion and denied the church’s motion. Affirming in part and reversing in part, the Ninth Circuit stated: “Because the Assembly Uses Provision facially violates the equal terms provision of RLUIPA, we reverse. . . . . RLUIPA, of course, does not prevent the [c]ity from crafting a zoning scheme that employs an accepted criterion in order to prohibit certain uses from operating on the ground floor of the Main Street Restricted Area. But the Assembly Uses Provision, as written, impermissibly treats religious assemblies on less than equal terms with nonreligious assemblies. In writing its zoning code, the [c]ity should have done and can do much better.” (New Harvest Christian Fellowship v. City of Salinas (9th Cir., Mar. 22, 2022) 29 F.4th 596.)

Attorney Fees in Lemon Law Cases.

Plaintiffs, purchasers of a used vehicle, appealed the trial court’s denial of their motion for attorney fees against defendant bank following plaintiffs’ acceptance of defendant’s offer to compromise plaintiffs’ lemon law claims. Reversing, the Court of Appeal concluded that plaintiffs are entitled to attorney fees, following the holdings in Pulliam v. HNL Automotive Inc. (2021) 60 Cal.App.5th 396, review granted April 28, 2021, S267576, and Melendez v. Westlake Services, LLC (2022) 74 Cal.App.5th 586, and disagreeing with the holdings in Lafferty v. Wells Fargo Bank, N.A. (2018) 25 Cal.App.5th 398, and Spikener v. Ally Financial, Inc. (2020) 50 Cal.App.5th 151. (Reyes v. Beneficial State Bank (Cal. App. 5th Dist., Mar. 22, 2022) 2022 WL 842925.)

Securities Laws Do Not Require Complete Disclosure on a Topic.

In August 2019, Twitter revealed that it had inadvertently shared personal user data with advertisers, but reassured users it had fixed the problem. A few months later during its quarterly earnings announcement, Twitter disclosed that software bugs had hampered its advertisement customization and that it had suffered a $25 million revenue shortfall. The plaintiffs filed this securities fraud lawsuit, alleging that Twitter misled investors by hiding the scope of its software bugs when it touted its latest advertisement initiative. A district court dismissed the action. Affirming, the Ninth Circuit stated: “Twitter’s statements about its advertising program were not false or misleading because they were qualified and factually true. The company had no duty to disclose any more than it did under federal securities law.” (Weston Family Partnership LLLP v. Twitter, Inc. (9th Cir., Mar. 23, 2022) 2022 WL 853252.)

Trial Court Erred in Dismissing PAGA Case Due to Unmanageability.

The trial court dismissed a Private Attorneys General Act (Lab. Code § 2698 et seq.; PAGA) because it was unmanageable. In Wesson v. Staples the Office Superstore, LLC (2021) 68 Cal.App.5th 746, a different appellate court concluded courts have inherent authority to strike unmanageable PAGA claims. In this case, the Court of Appeal reversed, disagreeing with the holding in Wesson, and stating: “PAGA claims are unlike conventional civil suits and, in particular, are not class actions. Allowing dismissal of unmanageable PAGA claims would effectively graft a class action requirement onto PAGA claims, undermining a core principle of these authorities. It would also interfere with PAGA’s purpose as a law enforcement mechanism by placing an extra hurdle on PAGA plaintiffs that is not placed on the state. That said, courts are not powerless when facing unwieldy PAGA claims. Courts may still, where appropriate and within reason, limit the amount of evidence PAGA plaintiffs may introduce at trial to prove alleged violations to other unrepresented employees. If plaintiffs are unable to show widespread violations in an efficient and reasonable manner, that will just reduce the amount of penalties awarded rather than lead to dismissal.” (Estrada v. Royalty Carpet Mills, Inc. (Cal. App. 4th Dist., Div. 3, Mar. 23, 2022) 2022 WL 855568.)

Selection of Voting Map Must Comply with Equal Protection.

After the 2020 census, the Wisconsin Legislature passed new electoral maps, but the Governor vetoed them. At an impasse, the legislature and the Governor turned to the Wisconsin Supreme Court, which had agreed to hear an original action brought by a group of voters seeking to remedy malapportionment. Rather than attempt to draw new maps itself, the court invited the parties and intervenors—including the legislature and the Governor—to propose maps that complied with the State Constitution, the Federal Constitution, and the Voting Rights Act of 1965. The Wisconsin Supreme Court selected one of the proposed maps. The U.S. Supreme Court reversed and remanded for further proceedings, stating: “On remand, the court is free to take additional evidence if it prefers to reconsider the Governor’s maps rather than choose from among the other submissions. Any new analysis, however, must comply with our equal protection jurisprudence.” (Wisconsin Legislature v. Wisconsin Elections Commission, (U.S., Mar. 24, 2022) 2022 WL 851720.)

Wish of Man Sentenced to Death.

A Texas court sentenced a man to death. The man did not challenge his conviction or sentence, but asked that his long-time pastor be allowed to pray with him and lay hands on him while he is being executed. Texas courts denied his request. The U.S. Supreme Court noted that Congress enacted the Religious Land Use and Institutionalized Persons Act of 2000 (42 U. S. C. §2000cc et seq.; RLUIPA) to ensure greater protection for religious exercise than is available under the First Amendment. It further noted that the lower federal courts expressed no doubt the sentenced man had a sincere religious basis for his requested accommodations. Granting the man’s petition, the nation’s highest court stated: “We hold that Ramirez is likely to prevail on the merits of his RLUIPA claims, and that the other preliminary injunction factors justify relief. If Texas reschedules Ramirez’s execution and declines to permit audible prayer or religious touch, the District Court should therefore enter appropriate preliminary relief. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.” (Ramirez v. Collier, Texas Department of Criminal Justice (U.S., Mar. 24, 2022) 2022 WL 867311.)

Mr. Wilson Can’t Tell Others to Get off His Lawn.

After years of acrimony, Mr. Wilson, a member of the Board of Trustees of a community college, was censured by the Board. Mr. Wilson responded by suing the community college for offending his right to free speech. The issue before the courts was: Did Mr. Wilson possess an actionable First Amendment claim arising from the Board’s purely verbal censure? The Fifth Circuit Court of Appeals held he did. Reversing, the United States Supreme Court stated: “The Board’s censure spoke to the conduct of official business, and it was issued by individuals seeking to discharge their public duties. Even the censured member concedes the content of the censure would not have offended the First Amendment if it had been packaged differently. Neither the history placed before us nor this Court’s precedents support finding a viable First Amendment claim on these facts.” (Houston Community College System v. Wilson (U.S., Mar. 24, 2022) 2022 WL 867307.)

Shareholder Derivative Suit Tossed.

Plaintiff alleged that officers and directors of Intel Corporation breached their fiduciary duties, engaged in insider trading, and were unjustly enriched. Applying Delaware law, the trial court dismissed plaintiff’s third amended complaint without leave to amend, having concluded that he failed to allege, with the requisite particularity, that it was futile to make a pre-suit demand on the board of directors. Noting the board of directors had a protocol in place to address the breaches alleged here, the Court of Appeal concluded the trial court did not abuse its discretion in dismissing the case for lack of particularized allegations. (Tola v. Bryant (Cal. App. 1st Dist., Div. 5, Mar. 24, 2022) 2022 WL 871073.)

School’s Threat Assessment Team Members Are Not Entitled to Immunity Under Government Code § 855.6

A jury found a school district had some responsibility for injuries sustained by an eighth-grade student when another eighth-grade student shot him in the stomach. Prior to the shooting, the shooter had complained to school officials about being bullied. Two faculty members overheard the shooter say on a field trip bus that when he lived in Tennessee he thought about shooting someone at school because he was being picked on. He also made other disturbing statements. When those faculty members returned to school, they both filed incident reports. The school initiated a threat assessment and suspended the shooter for five days. Several students also reported disturbing behavior on the part of the shooter. The shooter was permitted to return to school and ten months later, the shooting occurred. Based on the jury’s allocation of fault and its findings as to damages, the trial court entered a judgment for $2,052,000 against the school district based on its employees’ negligence. Affirming the judgment, the Court of Appeal stated: “We publish this opinion because District’s contention that all members of its threat assessment team are immune from liability pursuant to Government Code section 855.6 has not been addressed in a published decision. Section 855.6 provides that neither a public entity nor its employees are ‘liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination, of any person for the purpose of determining whether such person has a . . . mental condition that would constitute a hazard to the health or safety of himself or others.’ We conclude that the specific acts and omissions identified by plaintiff’s expert as below the standard of care for conducting a threat assessment are properly characterized as administrative and not as a mental examination. Thus, those negligent acts and omissions fall outside the scope of the section 855.6 immunity.” (Cleveland v. Taft Union High School District (Cal. App. 5th Dist., Mar. 25, 2022) 2022 WL 883855.)

ABC Test in a Jury Instruction.

The parties in this wage and hour case agreed the jury should be instructed on the “ABC test” articulated in Dynamex Operations v. Superior Court (2018) 4 Cal.5th 903. Under that test, a worker is presumed an employee unless the “hiring entity” establishes three factors: (A) the worker is free from the hiring entity’s control and direction in connection with the work; (B) the work is outside the hiring entity’s usual course of business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business. The trial court instructed the jury that for plaintiffs to establish their claim, they must prove they were hired by defendant construction company, and if they were, then the law presumes they were employees of the construction company unless the construction company proves all of the ABC factors. The jury returned a verdict for defendant construction company. Reversing and remanding for a new trial, the Court of Appeal stated: “Reading Dynamex, we do not think a threshold hiring entity test was intended. . . . Interpreting the Dynamex court’s ABC test to include a threshold hiring test, with the worker bearing the burden, would also run counter to the intent of the California wage and hour laws, which ‘are remedial in nature and must be liberally construed in favor of affording workers protection.’” (Mejia v. Roussos Construction, Inc. (Cal. App. 3rd Dist., Mar. 25, 2022) 2022 WL 883845.)

Summary Judgment Reversed in Whistleblower Case

Plaintiff was Chief Administrative Officer of the UCLA Department of Pathology and Laboratory Medicine. He identified many unsafe and substandard conditions at UC facilities such as lost specimens, mislabeling and mix-up of patient samples resulting in misdiagnosis, and failure/refusal to follow required procedures. He alleged violation of various code sections, contending he was terminated as a result of his attempts to report and correct violative conduct. The trial court granted summary judgment for defendants. On January 27, 2022, while the case was on appeal, the California Supreme Court issued its decision in Lawson v. PPG Architectural Finishes, Inc., 12 Cal.5th 703, holding that Labor Code “[s]ection 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under [Labor Code] section 1102.5.” Reversing, the Court of Appeal stated: “While Lawson did not discuss Government Code section 8547.10, that statute contains nearly identical language to the language analyzed by our Supreme Court. We therefore conclude that Lawson’s legal framework applies to Scheer’s Government Code claim as well. Because Defendants, in seeking summary adjudication of Scheer’s Labor and Government Code claims, relied on a legal standard inconsistent with Lawson, we reverse and remand as to those claims.” (Scheer v. Regents of the University of California (Cal. App. 2nd Dist., Div. 3, Mar. 28, 2022) 2022 WL 896766.)

Party Can’t Afford to Pay Arbitration Costs.

A trial court ordered a matter into arbitration and stayed the superior court action. Issuing a writ of mandate, the Court of Appeal held that the trial court has jurisdiction to lift the stay of trial court proceedings where a plaintiff demonstrates financial inability to pay the anticipated arbitration costs. Further, the appeals court held the trial court may require a defendant to either pay a plaintiff’s share of the arbitration costs or waive the right to arbitrate. (Aronow v. Superior Court of San Francisco County (Cal. App. 1st Dist., Div. 4, Mar. 28, 2022) 2022 WL 896183.)

What . . . Me Work?

Based on a petition to modify child support brought by the father, a family court ordered the mother to seek work. The mother appealed the seek-work order, contending the family court misconstrued Family Code § 4053 (which sets forth principles regarding the application of the statewide uniform guideline for determining child support) when it remarked that the state’s policy is that both parents should work. Affirming, the Court of Appeal stated: “To the extent one could interpret this brief remark as construing section 4053, we agree the statute does not say ‘both parents should work.’ But that does not affect a trial court’s discretion to impose a seek-work order in an appropriate circumstance. Here, substantial evidence supports the court’s finding that such an order was in the ‘best interest of the child.’ Moreover, the court’s order is consistent with various principles in section 4053, including that ‘[e]ach parent should pay for the support of the children according to the parent’s ability.’” (Haley v. Antunovich (Cal. App. 1st Dist., Div. 3, Mar. 28, 2022) 2022 WL 897095.)

Pop Goes the Arbitration Agreement.

Plaintiff, a minor, played defendant’s online videogame “Overwatch,” and used “real money” to make in-game purchases of “Loot Boxes”—items that offer “randomized chances . . . to obtain desirable or helpful ‘loot’ in the game.” Plaintiff and his father sued, alleging the sale of loot boxes with randomized values constitutes unlawful gambling, and, thus, violates the Unfair Competition Law (Bus. & Prof. Code, § 17200). Plaintiffs sought only prospective injunctive relief, plus attorney fees and costs. Defendant moved to compel arbitration based on the online license agreement it presented to users when they signed up for, downloaded, and used its service. The trial court denied the motion, finding a “reasonably prudent user would not have inquiry notice of the agreement” to arbitrate because “there was no conspicuous notice of an arbitration” provision in any of the license agreements. Reversing, the Court of Appeal noted the license agreement was presented as a pop-up window that contained the entire agreement, with a notice to read the section titled “dispute resolution” because it contains an arbitration agreement. The appeals court concluded: “In the context of the transaction at issue, we conclude Blizzard’s pop-up notice provided sufficiently conspicuous notice of the arbitration agreement such that Plaintiffs are bound by it.” (B.D. v. Blizzard Entertainment, Inc. (Cal. App. 4th Dist., Div. 1, Mar. 29, 2022) 2022 WL 907767.)

Primary Assumption of Risk of High School Football Injury.

A minor and his mother sued a school district after the minor suffered a traumatic brain injury in a high school football game. The trial court granted summary judgment for the school district because the minor’s father signed a release and because the action was barred by the principle of primary assumption of risk. Affirming, the Court of Appeal stated that “summary judgment was proper due to the Browns’ express assumption of the risks associated with Nick’s participation in the football program.” (Brown v. El Dorado Union High School District (Cal. App. 3rd Dist., Mar. 29, 2022) 2022 WL 908883.)

Can’t Sue the Tribe Because Court Lacks Subject Matter Jurisdiction, but May Be Able to Sue Individual Tribe Members.

Plaintiff alleges a tribe, its officers, and members improperly ordered his banishment based on his purported attempt to import alcohol into the City of Togiak, Alaska, and that, in the course of enforcing the banishment order, they jailed him and forced him onto an airplane out of the city. The district court dismissed his action based on 42 U.S.C. § 1983. Affirming, the Ninth Circuit held the district court lacked subject matter jurisdiction over the tribe and its officers due to sovereign immunity. Reversing in part, the appeals court stated: “However, we reverse and remand for the district court to fully consider (1) Oertwich’s § 1983 claims as to individual defendants in their individual capacities; (2) whether Oertwich is entitled to prospective injunctive relief against individual defendants; and (3) Oertwich’s individual tort claims against the individual defendants.” (Oertwich v. Traditional Village of Togiak (9th Cir., Mar. 30, 2022) 2022 WL 946518.)

Previously we reported:
The Deadly Choke Hold and Loss of Life Damages

A man, later determined to be under the influence of amphetamines, was placing laundry into a washing machine at a laundromat when two police officers entered. The officers, who were responding to a 911 call about a suspicious person near the laundromat, heard something that sounded like glass breaking and observed a methamphetamine pipe and screwdriver in the man’s laundry. Police told the man to place his hands behind his back. The man did not immediately comply, was placed in a choke hold and turned purple. The man managed to pull away and the police tasered him. After the police put him in a choke hold and tasered him a few more times, he ran away calling out, “please don’t kill me.” At some point, he tripped and was apprehended and placed in another choke hold, whereupon he began to turn purple again. A police supervisor arrived and instructed the officer conducting the choke hold on how to do it efficiently. The man fell into a coma and died eight days later. The county medical examiner ruled the death as a homicide caused by “complications of asphyxia during the struggle with the law enforcement officer” while the man was “under the influence of methamphetamine.” The man’s family filed a civil rights action against the city and police officers under 42 U.S.C. § 1983, alleging excessive force and wrongful death. A jury awarded $13.2 million, which included $3.6 million in loss of life damages. The city moved to set aside the award on the ground that California law does not recognize loss of life damages. The district court denied the motion. Affirming, the Ninth Circuit stated: “[J]uries are regularly asked to assess damages without direct sensory experience of the issue before them—including, in this case, for pre-death pain and suffering. And it is still better for juries to decide whether a plaintiff has received sufficient compensation than for our court to draw arbitrary lines denying compensation entirely.” (Valenzuela v. City of Anaheim (9th Cir., 2021) 6 F.4th 1098.)

The latest:

An en banc rehearing was denied. Respecting that denial, eight Ninth Circuit judges stated the panel’s holding that California’s prohibition on post-death “hedonic” damage awards are inconsistent with the compensation and deterrence goals of 42 U.S.C. § 1983 was foreclosed by the Supreme Court’s holding in Robertson v. Wegmann (1978) 436 U.S. 584.  (Valenzuela v. City of Anaheim (9th Cir., Mar. 30, 2022) 2022 WL 946528.)

“Just one more thing,” Detective Columbo.

Here, the one more thing was a new trial. Before submitting a breach of contract case to a jury, the court did not define the word “photoplays,” which was at the heart of the dispute. The studio here contended photoplays includes episodes of Columbo, a long-running television show. After a verdict, the trial court acknowledged it was for the court to define the word, and granted a new trial, but denied a judgment notwithstanding the verdict. Affirming the orders granting the new trial and denying the JNOV, the Court of Appeal stated: “These rulings were right. The interpretive task was for the court, not the jury.” (Foxcroft Productions, Inc. v. Universal City Studios LLC (Cal. App. 2nd Dist., Div. 8, Mar. 30, 2022) 2022 WL 950451.)

The Kids Are Also Protected Under the Domestic Violence Restraining Order.

A restrained husband and father did not contest the fact that his spouse is protected under a domestic violence restraining order (DVRO), but did contend his three children should not be protected under it because he has never harmed them. Affirming the order, the Court of Appeal stated there was sufficient evidence for the trial court to conclude the husband/father enlisted the children to surreptitiously gather information and stalk their mother and that: “Inclusion of the children in the DVRO was therefore appropriate to prevent future attempts by A.S. to use his children to harass, stalk, or otherwise spy on M.S and any man she might choose to see.” (M.S. v. A.S. (Cal. App. 1st Dist., Div. 3, Mar. 30, 2022) 2022 WL 950809.)

Driver Was Not Within the Course and Scope of Her Employment.

After working a double/overnight shift at her job, a woman fell asleep at the wheel and caused an accident, injuring plaintiff. Plaintiff sued the woman’s employer and the trial court granted summary judgment for the employer because the woman was not acting in the course and scope of her employment. Finding the special errand exception did not apply, the Court of Appeal affirmed. (Feltham v. Universal Protection Service, LP (Cal. App. 1st Dist., Div. 3, Mar. 30, 2022) 2022 WL 950810.)

Federal Court Lacked Jurisdiction to Confirm Arbitration Award

 In a wrongful termination case, the employee sought relief through arbitration. The arbitrators for the employer. The employee thereafter sued the employer in state court, asking the state court to vacate the arbitrators’ award. The employer removed the case to federal court, asking the district court to confirm the arbitrators’ award. But both the parties were residents of the same state, so there was no diversity jurisdiction. Nor was there a federal question involved. Thus, the U.S. Supreme Court held: “The Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., authorizes a party to an arbitration agreement to seek several kinds of assistance from a federal court. [¶] The Act’s authorization of a petition does not itself create jurisdiction. Rather, the federal court must have what we have called an ‘independent jurisdictional basis’ to resolve the matter. [¶] As relevant here, Congress chose to respect the capacity of state courts to properly enforce arbitral awards. In our turn, we must respect that evident congressional choice.” (Badgerow v. Walters (U.S., Mar. 31, 2022) 2022 WL 959675.)

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