Litigation Update: April 2023

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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, Colin P. Cronin, Jonathan Grossman, Jennifer Hansen, Gary A. Watt, Ryan Wu
Not Seeing Their Mother for 90 Days Was Not in the Best Interests of the Children.

A family court ordered a parenting plan in which the children and their father were to participate in a therapy program that required the mother, the petitioner here, to have no contact with the children for 90 days. The Court of Appeal reversed the order, stating: “Unlike postjudgment modifications of custody orders, postjudgment modifications of visitation and the parenting plan are governed by the statutory best interest of the child test, and the changed circumstance rule does not apply. . . . [¶] . . .[¶] Nothing in the record supports the court’s finding that this significant disruption to the children’s established living arrangement with mother was in their best interest.” (Johnston-Rossi v. Rossi (Cal. App. 2nd Dist., Div. 8, Mar. 1, 2023) 88 Cal.App.5th 1081.)

A Third Party’s Occupancy and Payment of Rent May Lead to a Permissive Inference, But Not a Mandatory Presumption, of Assignment.

Plaintiff landlord contended defendant tenant violated a lease covenant prohibiting an assignment of her leasehold interest by leaving the country for a prolonged period while her common law husband, who was not a named tenant, resided in the premises and paid rent during defendant’s absence. The trial court found there was insufficient proof of an assignment and entered judgment for defendant. Plaintiff appealed, contending that it proved a presumption of assignment that was not rebutted by defendant. Affirming, the Court of Appeal stated: “We are aware of no authority, and plaintiff does not provide any, which mandates a presumption of assignment based solely on a third-party’s occupancy and payment of rent.” “We hold a third party’s occupancy and payment of rent may lead to a permissive inference, but not a mandatory presumption, of assignment.” (Sleep E-Z, LLC v. Lopez (Super. Ct. App. Div., Mar. 2, 2023) 88 Cal.App.5th Supp. 18.)

Poisoning a Baby with Tainted Breast Milk.

A criminal defendant was charged with murder on the theory she poisoned her newborn baby by feeding her breast milk after smoking heroin and methamphetamine. An autopsy revealed traces of heroin-derived morphine and methamphetamine in the baby’s body fluids and the contents of her stomach. The trial court instructed the jurors that to convict the defendant of first degree murder, they had to find she committed “an act” with the mental state of malice aforethought that was a substantial factor in causing her baby’s death and that she “murdered by using poison.” The jury instructions did not require the jury to find that the defendant acted with any particular, heightened mental state when she fed her baby the breast milk. A jury convicted her of first degree murder. The Court of Appeal affirmed. Reversing, the California Supreme Court stated: “[S]ince in a typical first degree murder by poison case there is no question that the defendant acted with willfulness, deliberation, and premeditation, we have never addressed whether there is a mental state component of first degree poison murder. We now clarify that to prove first degree murder by means of poison, the prosecution must show the defendant deliberately gave the victim poison with the intent to kill the victim or inflict injury likely to cause death.” (People v. Brown (Cal., Mar. 2, 2023) 14 Cal.5th 453.)

Twitter Can’t Tell the Public About Information that Government Requires It to Disclose to the Government.

The U.S. government requires Twitter to provide it with certain information about Twitter users. In order to be transparent to the public, Twitter wished to publicly disclose certain information about the numbers of these requests. The Federal Bureau of Investigation determined such information was classified and would harm national security if it were released to the public. Twitter sued the government alleging First Amendment violations. The district court granted summary judgment for the government. Affirming, the Ninth Circuit stated: “The government may not fend off every First Amendment challenge by invoking national security. But we must apply the First Amendment with due regard for the government’s compelling interest in securing the safety of our country and its people.” (Twitter, Inc. v. Garland (9th Cir., Mar. 6, 2023) 61 F.4th 686.)

Action Dismissed for Lack of Personal Jurisdiction.

Plaintiff alleged that defendants negligently manufactured and distributed a battery that plaintiff used to power an electronic cigarette, which exploded in his mouth. Plaintiff, a resident of Hawai’i, alleged that he purchased the battery in Hawai’i. Defendant manufacturer is a South Korean company headquartered in Seoul. Another defendant, a wholly-owned marketing subsidiary of the manufacturer, is a Delaware corporation with its principal place of business in Georgia. The district court dismissed the action for lack of personal jurisdiction. Affirming, the Ninth Circuit explained that the U.S. Supreme Court’s decision in Ford Motor Co. v. Montana Eighth Judicial District Court (2021) 141 S.Ct. 1017 “modified but did not abolish the requirement that a claim must arise out of or relate to a forum contact in order for a court to exercise specific personal jurisdiction. [Plaintiff] has not met his burden to show that either prong is satisfied here, and he has only a mere hunch that jurisdictional discovery will allow him to meet his burden.” (Yamashita v. LG Chem, Ltd. (9th Cir., Mar. 6, 2023) 62 F.4th 496.)

Court Ordered Child Vaccinated Over Mother’s Objection.

A child was removed from the father’s care and placed with the mother because the father physically abused the child. After the child was hospitalized due to a mental breakdown, the mother refused to allow the child to return to her home. The juvenile court placed the child in a group home. When the child was 12 years old, the juvenile court authorized the Los Angeles County Department of Children and Family Services or the congregate care facility where the child was placed to vaccinate the child against the SARS-CoV-2 virus, over the mother’s objection, once the pediatrician approved. Several weeks later, the child’s mother asked the court to rescind its order, explaining in greater detail her religious objection to the child’s receiving the COVID-19 vaccine. After an evidentiary hearing, the juvenile court denied the petition, finding insufficient evidence it was in the child’s best interest not to be vaccinated. Affirming, the Court of Appeal stated: “When a child has been declared a dependent of the juvenile court, the court is expressly authorized to make ‘any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment.’ ” “However legitimate [the mother’s] concerns may have been about unknown long-term side effects of the vaccine, it was for the juvenile court to weigh the benefits of vaccinating [the child . . . and for those the child interacts with]—and the possible risks. It was not an abuse of discretion for the court to conclude its authorization to vaccinate [the child] should stand.” (In re Matthew M. (Cal. App. 2nd Dist., Div. 7, Mar. 6, 2023) 88 Cal.App.5th 1186.)

HOA Has Standing to Bring Construction Defect Action.

A homeowners association (HOA) sued the developer for construction defects in residential units. The trial court sustained defendant’s demurrer, ruling the HOA lacked standing to sue on behalf of its members for defects in residential units that it does not own and has no obligation to repair. Reversing, the Court of Appeal stated: “[W]e conclude that Plaintiff has standing to bring claims for damages to the common areas pursuant to Civil Code sections 945 and 5980, and that it at least nominally alleged such damages. We further conclude that Plaintiff may have standing to bring claims for damages to the residential units that sound in contract or fraud if it can meet the requirements for bringing a representative action pursuant to Code of Civil Procedure section 382. Lastly, we hold Plaintiff should have been granted leave to amend to cure any standing defect. We thus grant the petition for writ of mandate and direct the trial court to reverse its order granting the demurrer.” (River’s Side at Washington Square Homeowner’s Association v. Superior Court of Yolo County  (Cal. App. 3rd Dist., Mar. 6, 2023) 88 Cal.App.5th 1209.)

PAGA Saga.

Two plaintiffs contended an arbitration agreement did not require arbitration of their claims for penalties under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). Plaintiffs also contended defendant waived the right to arbitrate by participating in trial court proceedings. Further, one plaintiff contended he entered into the agreement before he reached the age of majority and disaffirmed it after reaching that age. The trial court denied defendant’s petition to arbitrate. Reversing in part and remanding, the Court of Appeal stated with regard to standing: “The standing question associated with the representative PAGA claims presents us with a dilemma. On the one hand, the California Supreme Court, in the case Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73 (Kim), provided us with a recent, definitive, and (most importantly) binding interpretation of the relevant portions of PAGA controlling standing. We read Kim as recognizing two (and only two) requirements for standing under PAGA, neither of which is affected in any way by moving the individual component of a PAGA claim to arbitration. On the other hand, in Viking, the United States Supreme Court, citing the very same Kim case, concluded a plaintiff whose individual PAGA claim is compelled to arbitration loses standing to pursue representative PAGA claims. (Viking River Cruises, Inc. v. Moriana (2022) ___ U.S. ___ [142 S.Ct. 1906].) [¶] We conclude the arbitration agreements require individual PAGA claims to be arbitrated and defendant did not waive its right to compel arbitration.” (Piplack v. In-N-Out Burgers (Cal. App. 4th Dist., Div. 3, Mar. 7, 2023) 88 Cal.App.5th 1281.)

Skilled Nursing Facility Waived Arbitration by Not Agreeing to Pay Fees and Costs.

The son of decedent, who had been a resident in a skilled nursing facility, sued the facility for elder abuse and negligent hiring and supervision. Defendants moved to compel arbitration. The trial court granted the petition on the condition that, within 15 days, defendants agreed to pay all arbitration fees and costs because decedent had been indigent and his estate had no funds to pay. Defendants did not agree to pay and instead appealed. Affirming, the Court of Appeal stated: “Substantial evidence supports the trial court’s findings of Daniel’s indigence. The trial court properly applied the holdings of Roldan [v. Callahan & Blaine (2013) 219 Cal.App.4th 87] and its progeny in ordering the RG Legacy parties to either agree to pay all arbitration fees and costs or waive arbitration.” (Hang v. RG Legacy I, LLC (Cal. App. 4th Dist., Div. 3, Mar. 7, 2023) 88 Cal.App.5th 1243.)

DMV Officer Erred in Permitting Telephone Appearance of Police Officer.

Plaintiff contended on appeal that the hearing officer for the Department of Motor Vehicles (DMV) erred in permitting the police officer to testify by telephone over plaintiff’s objection. Following the DMV hearing, plaintiff’s driver’s license was suspended. He filed a petition for writ of mandate in the trial court, contending the hearing officer erred in permitting the police officer to testify over the telephone because plaintiff’s lawyer was not able to adequately cross examine the officer. The trial court granted the writ, and the DMV appealed. Affirming, the Court of Appeal found that former Government Code § 11440.30 precluded the officer’s telephone appearance over plaintiff’s objection and the hearing officer was required to follow the statute. (Ramirez v. Superior Court of Kern County (Cal. App. 5th Dist., Mar. 8, 2023) 305 Cal.Rptr.3d 488.)

Twitter Was Not a State Actor When It Suspended Plaintiff’s Account.

Plaintiff contended that Twitter Inc. and California’s Secretary of State violated his constitutional rights by acting in concert to censor his speech on Twitter’s platform. He alleged that the Secretary of State’s office entered into a collaborative relationship with Twitter in which state officials regularly flagged tweets with false or misleading information for Twitter’s review and that Twitter responded by almost invariably removing the posts in question. Plaintiff further alleged that, after a state official flagged one of his tweets as false or misleading, Twitter limited other users’ ability to access his tweets and then suspended his account, ostensibly for violating the company’s content moderation policy. The district court dismissed the action. Affirming, the Ninth Circuit stated: “The district court determined that Twitter’s interactions with state officials did not transform the company’s enforcement of its content-moderation policy into state action. We agree with that conclusion and, accordingly, affirm the dismissal of . . . federal claims against Twitter, as each of those claims requires proof either that Twitter was a state actor or that it conspired with state actors to deprive O’Handley of his constitutional rights. We also affirm the dismissal of O’Handley’s claims against Secretary of State Weber because her office did not violate federal law when it notified Twitter of tweets containing false or misleading information that potentially violated the company’s content-moderation policy.” (O’Handley v. Twitter, Inc. (9th Cir., Mar. 10, 2023) 62 F.4th 1145.)

Racial and Religious Questions Asked of Inmate During a Parole Assessment.

California Board of Parole Hearings psychologists prepare comprehensive risk assessment reports for the parole board. A prisoner alleged he was asked racially and religiously biased questions in a psychological evaluation required for his parole review. He claimed the psychologists were prejudiced against him as an African-American, Muslim man, which influenced their conclusion he presented a “high” risk of future violence. The district court rejected the psychologists’ claim of absolute immunity but did not address qualified immunity. Affirming the lower court’s denial of absolute immunity, the Ninth Circuit Court did not address whether qualified immunity was available, leaving the question for the district court to consider. (Gay v. Parsons (9th Cir., Mar. 13, 2023) 61 F.4th 1088.)

Our Government Action Behind the Scenes.

The All Writs Act ( 28 U.S.C. § 1651; AWA) has its origins in the Judiciary Act of 1789. Under the AWA, federal courts order private parties to provide technical assistance to law enforcement to aid in the execution of arrest warrants. Underlying this case, the Department of Justice requested an AWA order compelling a technology company “to assist in the execution of a federal arrest warrant by periodically reviewing its records for evidence that the subject of the arrest warrant is traveling.” The application requested that, every week for six months, the company “provide representatives of the FBI complete and contemporaneous ‘real time’ account activity” for an individual subject to an active warrant.” A journalist for Forbes filed petitions in California and Washington seeking to unseal past AWA orders issued to an online travel-booking technology company. District courts in both actions denied the petitions. Affirming, the Ninth Circuit held that neither the First Amendment nor the common law rights to public access were “so expansive as to encompass the materials sought here—materials that have traditionally been maintained under seal to avoid exposing the government’s criminal investigations and compromising its pursuit of fugitives.” (Forbes Media LLC v. United States of America (9th Cir., Mar. 13, 2023) 61 F.4th 1072.)

The Hague Convention Post Golan v. Saada.

This is the third appeal in an international child custody case. While the family was residing in Germany, one of the parents took the children to the United States and refused to return them. The Hague Convention generally requires children to be returned to the state of habitual residence so that country’s courts may adjudicate the merits of any custody disputes. The district court ordered the children returned to Germany. Following Golan v. Saada (2022) 142 S. Ct. 1880, the district court exercised discretion to consider ameliorative measures. The district court stated that ordering the parent in the United States to return to Germany with the children would ameliorate the risk of psychological harm. Affirming, the Ninth Circuit stated: “The district court did not err in refusing to hold a new evidentiary hearing or in consulting the State Department. Adequate evidence supports the factual findings that Shon challenges. We thus affirm the district court’s grant of the petition for the children’s return with the ameliorative measures ordered by the district court.” (Radu v. Shon (9th Cir., Mar. 13, 2023) 62 F.4th 1165.)

Government Claims Statute Does Not Extend Time to File Medical Malpractice Action.

Plaintiff contended that during December 2017, a nurse at a county hospital committed medical malpractice on him, resulting in amputation of his foot. He filed a suit for medical malpractice on January 18, 2019, “one day shy of six months after” rejection of his governmental claim. The trial court sustained defendant county’s demurrer without leave to amend. Affirming, the Court of Appeal stated: “Carrillo was required to meet the deadlines set forth in both Code of Civil Procedure Section 340.5 and Government Code 945.6.” (Carrillo v. County of Santa Clara (Cal. App. 2nd Dist., Div. 4, Mar. 13, 2023) 89 Cal.App.5th 227.)

Plaintiff Substantially Complied with Government Claim Statute Despite the Fact the Complaint Was Filed Prior to Denial of the Claim.

The transfer of inmates from the Chino Institute for Men to San Quentin State Prison in May of 2020 allegedly led to a severe outbreak of COVID-19 at the prison. Plaintiff, a San Quentin inmate who was diagnosed with COVID-19, filed a class action complaint with a cause of action alleging that defendants State of California and California Department of Corrections and Rehabilitation were responsible for the harm caused by their failure to take reasonable action to summon medical care for prisoners who were in immediate need. The trial court sustained defendants’ demurrer to this cause of action without leave to amend, holding that plaintiff failed to comply with the claim presentation provisions of the Government Claims Act (Gov. Code, §§ 810 et seq.). In so holding, the court found that plaintiff had prematurely filed this lawsuit before the rejection of his government claim and that he could not cure this defect by filing an amended complaint after denial of the claim. Reversing, the Court of Appeal stated: “[W]e conclude the trial court erred in sustaining the demurrer for Malear’s failure to allege strict compliance with the claim presentation requirement of the Government Claims Act. The record establishes that, even though Malear initiated this lawsuit before the public entity defendants denied his government claim, Malear subsequently filed an amended complaint as of right after the claim was denied and before defendants were served with the original complaint or appeared in the action. The amended complaint alleged defendants’ denial of his claim. On this record, Malear has established substantial compliance with the statutory claim presentation requirement, and the order sustaining defendants’ demurrer based on the lawsuit’s premature filing cannot stand.” (Malear v. State of California (Cal. App. 1st Dist., Div. 3, Mar. 13, 2023) 89 Cal.App.5th 213.)

Gig Workers’ Legal Journey Continues.

In Dynamex Operations West v. Superior Court (2018) 4 Cal.5th 903, the California Supreme Court held:  “[W]e conclude that in determining whether a worker is properly considered the type of independent contractor to whom the wage order does not apply, it is appropriate to look to a standard, commonly referred to as the ‘ABC’ test, that is utilized in other jurisdictions in a variety of contexts to distinguish employees from independent contractors. Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.” The California Legislature codified that holding in 2019 (Lab. Code, § 2775). But the statute was reversed by Proposition 22 in 2020. In 2021, the Superior Court ruled that Proposition 22 was unconstitutional. Affirming in part and reversing in part, the Court of Appeal stated: “We agree that Proposition 22 does not intrude on the Legislature’s workers’ compensation authority or violate the single-subject rule, but we conclude that the initiative’s definition of what constitutes an amendment violates separation of powers principles. Because the unconstitutional provisions can be severed from the rest of the initiative, we affirm the judgment insofar as it declares those provisions invalid and to the extent the trial court retained jurisdiction to consider an award of attorney’s fees, and otherwise reverse.” (Castellanos v. State (Cal. App. 1st Dist., Div. 4, Mar. 13, 2023) 89 Cal.App.5th 131.)

Motion to Disqualify Trial Judge Denied.

Following a multi-million dollar verdict for the real party in interest in a wrongful termination suit, defendant school district sought disqualification of the trial judge pursuant to Code of Civil Procedure § 170.3, subdivision (c)(5). In its motion, the school district argued the trial judge changed an evidentiary ruling after meeting in chambers with another judge of the court who had formerly worked in the same law firm that was trying the case for plaintiff. Both during and after trial, the other judge entered the trial courtroom; allegedly entered the trial judge’s chambers; sent the trial judge a text message; and delivered food to the trial judge. The trial judge disclosed the other judge’s actions to the parties but stated the other judge did not enter her chambers. A judge in a different county presided over and denied the disqualification motion. Denying the school district’s petition for writ of mandate, the Court of Appeal found there was no adverse inference arising from the trial court’s final ruling on the evidentiary issue. (Bassett Unified School District v. Superior Court (Cal. App. 2nd Dist., Div. 5, Mar. 14, 2023) 89 Cal.App.5th 273.)

State-Created Danger Doctrine.

Plaintiff in a civil rights action brought pursuant to 42 U.S.C. § 1983 called 911 seeking emergency mental health assistance for the woman with whom he lived and had five children. Law enforcement separated plaintiff from the woman and drove the woman, along with their ten-month-old twin sons to a motel to spend the night. Left unsupervised at the motel, the woman continued to suffer from a mental health crisis and drowned the twins. Plaintiff brought the present action against law enforcement and a federal trial judge dismissed the action. Reversing, the Ninth Circuit stated: “This court must decide whether Plaintiffs have properly stated claims for § 1983 relief against each of these state actors based on their roles in creating the circumstances that caused the twins’ deaths. [¶] . . . [¶] . . . [W]e reverse the district court’s dismissal of Plaintiffs’ § 1983 claims against Garcia and Torres under the state-created danger doctrine.” (Murguia v. Langdon (9th Cir., Mar. 14, 2023) 61 F.4th 1096.)

Employer Not Responsible for Inappropriate Texts Sent to One Employee by Another Because the Two Had an Extensive Relationship Outside the Workplace.

Plaintiff filed a sexual harassment, failure to prevent sexual harassment, wrongful constructive termination, discrimination, and retaliation action against her former employer. Her lawsuit stemmed from an offsite and afterhours text exchange she had with her employer’s district manager, in which he sent her lewd photographs. Plaintiff and the district manager knew each other, and were friends from a time before plaintiff started working for defendant employer. Defendants brought a summary judgment motion. The trial court concluded plaintiff had not raised a triable issue of fact as to the required showing that the district manager was acting in the capacity of a supervisor when he sent the inappropriate texts, and granted the motion. Affirming, the Court of Appeal found that plaintiff and the district manager had an extensive relationship that occurred outside the workplace and outside work hours. (Atalla v. Rite Aid Corporation (Cal. App. 5th Dist., Feb. 24, 2023) 89 Cal.App.5th 294.)

MICRA Applies in Case Involving Accident While in Ambulance.

Plaintiffs allege they were injured on August 28, 2017, while being transported in an ambulance operated by employees of defendant when the ambulance collided with another vehicle. Plaintiffs filed their complaint on November 8, 2018, alleging motor vehicle negligence and medical malpractice. The trial court granted summary judgment for defendant based upon the one-year statute of limitations applicable to actions for professional negligence by health care providers under the Medical Injury Compensation Reform Act (Code Civ. Proc., § 340.5; MICRA). The Court of Appeal noted that the appeal turned on two questions: (1) whether MICRA applies when ambulance passengers are injured during a collision; and (2) if so, whether the statute of limitations was extended under Code of Civil Procedure § 364, subdivision (d), because plaintiffs sent AMR a notice of intent to sue on August 23, 2018. Affirming, the appeals court stated: “We agree that the trial court correctly determined that the MICRA statute of limitations under section 340.5 applies and that plaintiffs’ August 23, 2018 letter did not extend the statute of limitations because their prior March 2018 letter to AMR’s third party claims administrator constituted a section 364, subdivision (a) notice of intent to sue.” (Lopez v. American Medical Response West (Cal. App. 1st Dist., Div. 5, Mar. 15, 2023 89 Cal.App.5th 336.)

The Federal Arbitration Act Says One Thing, But Binding Precedent Says Something Else Regarding Staying or Dismissing When Sent to Arbitration.

Plaintiffs are delivery drivers who sued their employer, alleging violation of various state and federal employment laws. The parties agreed that all claims are subject to mandatory arbitration. Accordingly, the district court ordered the matter to arbitration, but also dismissed the lawsuit without prejudice. Plaintiffs argued on appeal that the lower court should have stayed the action pending arbitration rather than dismissing it. Affirming, the Ninth Circuit stated: “The sole question before us is whether the Federal Arbitration Act (“FAA”) requires a district court to stay a lawsuit pending arbitration, or whether a district court has discretion to dismiss when all claims are subject to arbitration. Although the plain text of the FAA appears to mandate a stay pending arbitration upon application of a party, binding precedent establishes that district courts may dismiss suits when, as here, all claims are subject to arbitration.” (Forrest v. Spizzirri (9th Cir., Mar. 16, 2023) 62 F.4th 1201.)

Dismissal of Securities Fraud Case Reversed.

In a securities fraud class action on behalf of all investors who purchased common stock of defendant corporation between March 4, 2019, and May 15, 2020, plaintiffs alleged that, during that period, defendant and two of its officers made false or misleading statements about its past financial performance, presently confirmed sales, and prospects for future performance. Plaintiffs alleged defendants misled investors with respect to four items: (1) the strength of defendant’s sales pipeline; (2) the experience of defendant’s sales force; (3) the loss of business with certain partners when it announced a merger; and (4) the likelihood that the merger would close. The district court dismissed plaintiffs’ complaint with prejudice, finding that plaintiffs failed to adequately plead that any of defendants’ statements were false or misleading or that defendants made such statements with the requisite scienter. The Ninth Circuit reversed in part, holding that plaintiffs adequately pleaded both falsity and scienter as to some of the challenged statements and that the Private Securities Litigation Reform Act’s (Public Law 104-67) safe harbor for forward-looking statements did not preclude liability as to some of these statements. (Glazer Capital Management, L.P. v. Forescout Technologies, Inc. (9th Cir., Mar. 16, 2023) 63 F.4th 747.)

Gig Workers Continue Battle Against A-B-C Test.

The named plaintiff is a California-based driver who “uses the Uber platform to get leads for passenger requests to transport passengers in the Sacramento and San Francisco Bay areas.” She alleged she would be unable to work for Uber if she were to be reclassified as an employee under A.B. 5 as amended in A.B. 2257 because she depends on “the flexibility that comes with being an independent service provider,” as she serves as her husband’s primary caretaker. Plaintiffs sought declaratory and injunctive relief, alleging violation of state and federal Equal Protection Clauses, Due Process Clauses, Contract Clauses, and Bill of Attainder Clauses. The district court dismissed the complaint. The Ninth Circuit held that the lower court correctly dismissed plaintiffs’ Due Process claims, Contract Clause claims, and Bill of Attainder claims. But the appeals court remanded the matter for the lower court to reconsider plaintiffs’ motion for a preliminary injunction. (Olson v. State of California (9th Cir., Mar. 17, 2023) 62 F.4th 1206.)

Plaintiff Did Not Prove Pregnancy Discrimination.

Plaintiff was a manager at a defendant domestic violence shelter. After giving birth, plaintiff experienced complications. She contended defendant shelter did not provide reasonable accommodations for her pregnancy-related condition. Plaintiff sued defendant for violation of the Fair Employment and Housing Act (Gov. Code, § 12940 et seq). Following a bench trial, the lower court entered judgment for defendant. Affirming, the Court of Appeal held: “Here, the trial court . . . properly placed the burden on plaintiff to prove that she had a condition related to pregnancy and that she was able to perform the essential functions of her job with reasonable accommodation. (See e.g. Green v. State of California (2007) 42 Cal.4th 254, 262, 264 (Green).)” (Lopez v. La Casa De Las Madres (Cal. App. 1st Dist., Div. 3, Mar. 16, 2023) 89 Cal.App.5th 365.)

Plaintiff Was Unable to Plead that Statute Burdens or Chills Second Amendment Rights.

Before a federally licensed firearms dealer may sell or transfer a firearm in California, the dealer must submit certain purchaser information to the California Department of Justice for the department to conduct a background check to determine whether the individual is prohibited by federal or state law from purchasing a firearm. If the background check reveals an arrest or criminal charge, the department has 30 days from the date of submission to investigate whether that arrest or charge resulted in a disqualifying conviction. Pursuant to California Penal Code § 28220, subdivision (f)(4), if the department is unable to ascertain the final disposition of the arrest or charge within the 30-day period, the department must notify the dealer of that fact in writing and inform the dealer it may immediately transfer the firearm to the purchaser. Plaintiff brought an action under 42 U.S.C. § 1983 against the State of California after a federally licensed firearms dealer refused to complete plaintiff’s purchase of an antique shotgun. Plaintiff alleged the dealer had received a letter from the department pursuant to § 28220, subdivision (f)(4), advising it that the department had been unable to ascertain plaintiff’s eligibility to purchase the firearm within the statutory period. Despite the letter, the dealer did not want to take the risk of making the sale. Plaintiff alleged § 28220, subdivision (f)(4) was unconstitutional because it burdened, or at the very least chilled, a purchaser’s exercise of Second Amendment rights. The trial court sustained the State’s demurrer without leave to amend. Affirming, the Court of Appeal stated: “The Department’s notice to a firearms dealer pursuant to section 28220, subdivision (f)(4), does not prevent a prospective purchaser from owning or possessing a firearm or restrict an individual’s ability to acquire a firearm. Nor did it do so here. The statutory scheme challenged by [plaintiff] lies beyond ‘the outer bounds of the right to keep and bear arms.’” (Regina v. State of California (Cal. App. 2nd Dist., Div. 7, Mar. 17, 2023) 89 Cal.App.5th 386.)

No Concurrent Jurisdiction Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a California court has temporary emergency jurisdiction in a juvenile dependency matter if a child is present in the state and there is an emergency need to protect the child from abuse. (Fam. Code, § 3424, subd. (a).) Thereafter, if the child’s home state declines to exercise jurisdiction, the California court then has the “exclusive jurisdictional basis for making a child custody determination.” (Fam. Code, § 3421, subd. (b).) California had emergency temporary jurisdiction in this case. The California judge telephoned the Texas court and explained the emergency. The Texas court ceded jurisdiction to California. Both the father and mother contended the juvenile court never had subject matter jurisdiction under the UCCJEA, because the Texas judge purported to cede jurisdiction for only so long as the parents were in California. The juvenile court found Texas had ceded subject matter jurisdiction of the instant dependency matter to California and declared the children to be dependents of the court. Affirming, the Court of Appeal stated: “Under the UCCJEA, there cannot be concurrent jurisdiction; only one state can have jurisdiction at a time. . . . [¶] . . . Under the relevant provisions of the UCCJEA, the California juvenile court generally retains exclusive, continuing subject matter jurisdiction, unless and until California cedes jurisdiction back to Texas. (See § 3422, subd. (a)(1).) Thus, we deny the parents’ request to reverse all the juvenile court’s orders.” (A.H. v. Superior Court (Cal. App. 4th Dist., Div. 3, Mar. 17, 2023) 89 Cal.App.5th 504.)

Disentitlement Doctrine Does Not Support the Trial Court’s Order Conditioning Filing of Future Child Support Modifications on Father’s Being Current with His Support.

After the father filed a request to modify his child support and spousal support obligations, the mother moved to dismiss the motion under the disentitlement doctrine as the father was delinquent on his support obligations. The trial court granted the mother’s motion and, on its own, conditioned the filing of any future modification requests on the father being current on his support obligations. Affirming in part and reversing in part, the Court of Appeal concluded the family court did not abuse its discretion in granting the mother’s motion to dismiss, but erred in conditioning the filing of future modification requests on the father being current on his support obligations, stating that “a court may, after considering the equities, dismiss future RFO’s on the basis that [the father] is not current with his obligations. But such dismissal must be on an individual motion-by motion basis. Accordingly, the court erred in conditioning the filing of future RFO’s on [the father] being current with his support obligations.” (In re Marriage of Cohen (Cal. App. 4th Dist., Div. 3, Mar. 20, 2023) 305 Cal.Rptr.3d 677.)

Plaintiff May Sue for Damages Without Exhausting Procedural Requirements Under the Individuals with Disabilities Education Act (IDEA).

The Individuals with Disabilities Education Act (20 U. S. C. §1400 et seq.; IDEA) seeks to ensure that children with disabilities receive a free and appropriate public education. The question before the U.S. Supreme Court was the extent to which children with disabilities must exhaust administrative procedures under the IDEA before seeking relief under other federal antidiscrimination statutes, such as the Americans with Disabilities Act of 1990 (104 Stat. 327, 42 U. S. C. §12101 et seq.; ADA). Concluding plaintiff could sue under the ADA, the nation’s highest court stated: “[IDEA’s] administrative exhaustion requirement applies only to suits that ‘see[k] relief . . . also available under’ IDEA. And that condition simply is not met in situations like ours, where a plaintiff brings a suit under another federal law for compensatory damages—a form of relief everyone agrees IDEA does not provide.” (Luna Perez v. Sturgis Public Schools (U.S., Mar. 21, 2023) 143 S.Ct. 859.)

Equitable Contribution Judgment Reversed.

Plaintiff insurance company covers an employer under a general liability policy and defendant insurance company covers the same employer under a workers’ compensation policy. After an employee covered under both policies caused injuries,the general liability carrier settled for its policy limits under a reservation of rights and then brought suit against the workers’ compensation carrier. The trial court held for plaintiff, ordering the workers’ compensation carrier to pay half the settlement. The Court of Appeal reversed, stating: “It is well settled that an equitable contribution claim only lies if the two insurers share the same level of liability on the same risk as to the same insured. In this case, the general liability insurer is not entitled to equitable contribution because it did not insure the same risk as the workers’ compensation and employers’ liability insurer.”  (California Capital Insurance Company v. Employers Compensation Insurance Company (Cal. App. 4th Dist., Div. 3, Mar. 20, 2023) 305 Cal.Rptr.3d 686.)

Attorney Disqualified After Knowingly Using Privileged Information.

Two of three officers and board members of a corporation voted to remove the third officer/member. The third officer/member sued the others and the husband of one of the others for breach of contract, breach of fiduciary duty, fraud, and other torts. Plaintiff copied private communications between one of the remaining officers/members and her husband contained in emails. Plaintiff’s attorney used those communications in court documents. The other two officers/members moved to disqualify that attorney. The trial judge granted the motion. Affirming, the Court of Appeal stated: “The evidence before the trial court supported its finding that Lawrence reasonably expected her communications were, and would remain, confidential. And while we acknowledge disqualification may not be an appropriate remedy when a client simply discusses with his or her lawyer improperly. acquired privileged information, counsel’s knowing use of the opposing side’s privileged documents, however obtained, is a ground for disqualification.” (Militello v. VFARM 1509 (Cal. App. 2nd Dist., Div. 7, Mar. 21, 2023) 2023 WL 2579204.)

Federal Uniformed Services Former Spouse’s Protection Act (FUSFSPA).

A family court found it lacked jurisdiction to divide wife’s military pension under the Federal Uniformed Services Former Spouse’s Protection Act (10 U.S.C. § 1408; FUSFSPA). Reviewing a writ petition, the Court of Appeal rejected the family court’s ruling that a service member must explicitly and specifically consent to the court’s authority to divide her military retirement under the FUSFSPA. Granting extraordinary relief, the appellate court stated: “Lisa did consent to the jurisdiction of the court within the meaning of the FUSFSPA by voluntarily filing her dissolution petition in California, seeking a judicial confirmation of ‘all’ her separate property acquired before marriage, asking the court to determine ‘any’ community property assets, and requesting the appointment of an expert under Evidence Code section 730 to determine a proposed division of the parties’ retirement accounts.” (In re Marriage ofSullivan (Cal. App. 4th Dist., Div. 1, Mar. 21, 2023) 2023 WL 2581341.)

Claims of Antitrust and Tortious Interference with Prospective Economic Relations Tossed.

Plaintiff and defendant are rival fast-fashion retailers. Plaintiff alleged that defendant organized a per se unlawful group boycott by threatening to stop purchasing from certain clothing vendors unless they, in turn, stopped selling to plaintiff. The district court granted summary judgment for defendant on plaintiff’s Sherman Act § 1, group boycott claim, concluding that plaintiff failed to create a material dispute as to the existence of a horizontal agreement, between the vendors themselves, to boycott plaintiff. The lower court also granted summary judgment on plaintiff’s California business tort claims. The Ninth Circuit affirmed, holding that a horizontal agreement  was required to prevail on the Sherman Act § 1 claim, and that plaintiff’s claim for tortious interference with prospective economic relations failed because that claim required a showing of independent unlawfulness. (Honey Bum, LLC v. Fashion Nova, Inc. (9th Cir., Mar. 22, 2023) 2023 WL 2592287.)

Forum Shopping Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

Unhappy with a Virginia court’s order regarding the custody of his minor daughter, the father sought to modify that order only one month later in California family court. The California court found it lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act to do so. Affirming, the Court of Appeal stated: “We conclude the California court was correct: the Virginia court that entered the governing child custody order had initial home state jurisdiction, and it never lost that jurisdiction.” (Segal v. Fishbein (Cal. App. 4th Dist., Div. 1, Mar. 22, 2023) 2023 WL 2592372.)

Monetary Sanctions in Elder Abuse Action Upheld, But Appeal from Issue Sanctions Dismissed.

Defendants, a care center and others, did not respond to discovery in an elder abuse case. The trial court and the discovery referee rejected their excuses and found defendants had engaged in a strategy of “continuous dilatory conduct.” The trial court imposed 11 potentially case-dispositive issue sanctions and $37,575 in monetary sanctions against defendants for having “repeatedly disregarded their obligations in Discovery” and having “repeatedly fought the Court Orders that tell them they must comply.” In the notice of appeal, defendants asserted their appeal included both the monetary sanctions and the issue sanctions. The Court of Appeal held as follows: “The order imposing monetary sanctions is directly appealable under Code of Civil Procedure section 904.1, subdivision (a)(11) and (12). However, the order imposing issue sanctions is not directly appealable. The issue sanctions are not inextricably intertwined with the monetary sanctions. We therefore grant plaintiffs’ motion to dismiss the appeal regarding issue sanctions. [¶] . . .[¶] Defendants have failed to establish the trial court should have found they acted with substantial justification or that other circumstances made the imposition of monetary sanctions unjust. Accordingly, we affirm the award of monetary sanctions and dismiss the appeal in all other respects.” (Deck v. Developers Investment Company, Inc. (Cal. App. 4th Dist., Div. 3, Mar. 24, 2023) 2023 WL 2624355.)

Viking River Keeps on Rolling Along.

Plaintiff, an Uber driver, sued Uber under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA), alleging Uber willfully misclassified him as an independent contractor rather than an employee, which led to numerous other Labor Code violations. Uber moved to compel arbitration under the “Arbitration Provision” in the Technology Services Agreement (TSA) plaintiff accepted to use. The trial court denied Uber’s motion and, in April 2021, the Court of Appeal affirmed. The U.S. Supreme Court vacated the affirmance in June 2022, when it granted Uber’s petition for writ of certiorari and remanded the case for further consideration in light of Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906. This time around, the Court of Appeal determined the PAGA waiver in the TSA was invalid and must be severed from the Arbitration Provision. The appeals court then concluded that “under the Arbitration Provision’s remaining terms, Gregg must resolve his claim for civil penalties based on Labor Code violations he allegedly suffered (i.e., his individual PAGA claim) in arbitration, and that his claims for penalties based on violations allegedly suffered by other current and former employees (i.e., his non-individual PAGA claims) must be litigated in court. Lastly, [it concluded] that under California law, Gregg [was] not stripped of standing to pursue his non-individual claims in court simply because his individual claim must be arbitrated. Consequently, his non-individual claims [were] not subject to dismissal at this time. Instead, under the Arbitration Provision, they must be stayed pending completion of arbitration.” (Gregg v. Uber Technologies, Inc. (Cal. App. 2nd Dist., Div. 4, Mar. 24, 2023) 2023 WL 2624590.)

Government Claims Statute and Revival-of-Statute of Limitations for Childhood Sexual Abuse.

In 2002, plaintiffs filed government claims against a school district after they were allegedly sexually abused by a teacher. Their case was dismissed for lack of timely filing government claims pursuant to Government Code § 810 et seq. As of January 1, 2020, the statute of limitations set forth in Code of Civil Procedure § 340.1, subdivision (q), for bringing claims for childhood sexual abuse, was extended, so long as they had not been “litigated to finality.” Accordingly, plaintiffs filed this action. Their complaint effectively alleged the same claims against the district as were alleged in the 2002 suit. The trial court sustained defendants’ demurrer without leave to amend. Affirming, the Court of Appeal stated that “regardless of why plaintiffs’ claims were dismissed—whether for failing to comply with statute of limitations or the government claims presentation deadline—plaintiffs’ claims were litigated to finality.” (Doe v. Marysville Joint Unified School District (Cal. App. 3rd Dist., Mar. 27, 2023) 2023 WL 2624590.)

Typhus in 2023.

A city attorney sued the city after she contracted typhus. She alleged her place of work, and her assigned parking lot were very close to a “typhus zone” in downtown Los Angeles due to an accumulation of trash. The trial court sustained the city’s demurrer, finding the city was immune under Government Code § 855.4. Affirming, the Court of Appeal noted that “it is apparent from the face of the complaint that the City’s decision not to take action against the spread of typhus on the public property adjacent from City Hall East was an exercise of discretion under section 855.4, subdivision (a).” (Greenwood v. City of Los Angeles (Cal. App. 2nd Dist., Div. 1, Mar. 27, 2023) 2023 WL 2643003.)

Discretionary Function Exception in the Federal Tort Claims Act.

After a major fire in the mountains of Montana, property owners sued the U.S. Forest Service for failing to comply with its duty to consult with them about fire suppression activities on or near their properties. In fact, the Forest Service issued public alerts, but the landowners contended that individual communications were required. The district trial court entered summary judgment for the government. The Ninth Circuit noted that the discretionary function exception in the Federal Tort Claims Act (28 U.S.C. § 2860(a)) preserves sovereign immunity as to claims regarding a government employee’s “act or omission . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency” or government employee. Affirming grant of summary judgment, the appeals court stated: “Determining how to consult with private landowners while the Lolo Peak fire raged is precisely the type of decision the discretionary function exception was designed to shield, and the landowners’ claims are thus barred.” (Schurg v. United States of America (9th Cir., Mar. 28, 2023) 2023 WL 2658029.)

Subject Matter Jurisdiction in Easement Case.

Plaintiffs live along Robbins Gulch Road in rural Montana. The United States has an easement for use of the road, which the government interprets to include making the road available for public use. Plaintiffs allege that the road’s public use has intruded upon their private lives, with strangers trespassing, stealing, and even shooting a cat. They sued over the scope of the easement under the Quiet Title Act (28 U.S.C. § 2409a(g)), which allows challenges to the United States’ rights in real property. Invoking the act’s 12-year time limit, the government maintained that the suit was jurisdictionally barred. The district court dismissed the case for lack of subject matter jurisdiction. The Ninth Circuit affirmed. Reversing the judgment of the appeals court, the U.S. Supreme Court stated: “All told, neither this Court’s precedents nor Congress’ actions established that §2409a(g) is jurisdictional.” (Wilkins v. United States (U.S., Mar. 28, 2023) 143 S.Ct. 870.)

Family Court Must Consider the Parties’ Ability to Pay Child Custody Evaluator.

The family court ordered the parents to share in the expense of a court-ordered child custody evaluator appointed under Evidence Code § 730. The payment order was entered over mother’s continuing objection that she could not afford to pay any of the evaluator’s fee. Vacating the order, the Court of Appeal stated: “We conclude that in allocating the costs of a court-appointed child custody evaluator, the court must consider the parties’ ability to pay, whether the child custody evaluator is appointed  by the court under Evidence Code section 730 or under the more specific provisions of the Family Code (Family Code sections 3111 to 3112). The record does not indicate that the trial court considered all of mother’s expenses before ordering her to contribute to the costs of the court-ordered child custody evaluation. We remand the matter for a new hearing addressing mother’s ability to pay some or any of the costs of the child custody evaluator.” (Peterson v. Thompson (Cal. App. 1st Dist., Div. 2, Mar. 29, 2023) 2023 WL 2701709.)

Court of Appeal Held It Is Not Bound by the PAGA Analysis of the U.S. Supreme Court.

Plaintiff is a Lyft driver who sued Lyft under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). Plaintiff conceded that under Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, his claim for civil penalties that he personally suffered was subject to arbitration, but contended he retained standing to pursue the non-individual PAGA claims in court. The trial court denied Lyft’s petition to arbitrate. Affirming in part and reversing in part, the Court of Appeal stated: “We conclude that we are not bound by the analysis of PAGA standing set forth in Viking River. As Justice Sotomayor recognized in her concurring opinion, PAGA standing is a matter of state law that must be decided by California courts. Until we have guidance from the California Supreme Court, our review of PAGA and relevant state decisional authority leads us to conclude that a plaintiff is not stripped of standing to pursue non-individual PAGA claims simply because his or her individual PAGA claim is compelled to arbitration.” (Seifu v. Lyft, Inc. (Cal. App. 2nd Dist., Div. 4, Mar. 30, 2023) 2023 WL 2705285.)

Do the Ethics Standards Require a Retained Arbitrator in a Noncommercial Case to Disclose in One Matter that He Has Been Subsequently Hired in a Second Matter by the Same Party and Same Law Firm?

The California Arbitration Act (Code Civ. Proc., § 1280 et seq.) requires potential and retained arbitrators to disclose, among other things, matters that the Ethics Standards for Neutral Arbitrators in Contractual Arbitration dictate must be disclosed. The question before the Court of Appeal was whether or not the ethics standards require a retained arbitrator in a noncommercial case to disclose in one matter that he has been subsequently hired in a second matter by the same party and same law firm? The appeals court  “h[e]ld that the answer is ‘no,’ at least where the arbitrator has previously informed the parties—without any objection thereto—that no disclosure will be forthcoming in this scenario.” (Sitrick Group, LLC v. Vivera Pharmaceuticals, Inc. (Cal. App. 2nd Dist., Div. 2, Mar. 30, 2023) 2023 WL 2705284.)

Plaintiff Timely Requested the Accommodation of Having His Wife Present at His Deposition.

Real parties in interest noticed plaintiff’s deposition. Plaintiff appeared at the deposition with his wife. Defense counsel objected to his wife’s presence, because she was a percipient witness in the action and could be deposed in the future. Plaintiff’s deposition did not proceed beyond the parties stating their objections on the record. Real parties subsequently filed a motion for a protective order. At the hearing on the motion, plaintiff’s counsel explicitly requested under California Rules of Court, rule 1.100,3, that accommodations be provided to plaintiff because he was suffering from Post-Traumatic Stress Disorder (PTSD), a recognized disability under the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.; ADA). To this end, counsel proposed that plaintiff’s wife be present at plaintiff’s deposition as her presence provides a calming effect and helps to stave off plaintiff’s PTSD. The court acknowledged that PTSD fell under the ADA but found plaintiff’s request for an accommodation untimely. It thus granted the protective order and sanctioned plaintiff. Granting a writ of mandate, the Court of Appeal noted that plaintiff’s failure to request an accommodation while meeting and conferring with defendants or in a motion for a protective order did not make his request for an accommodation untimely. The appeals court held: “We conclude that Gropen’s request for an accommodation under Rule 1.100 was timely, and the court abused its discretion by failing to consider his request.” (Gropen v. Superior Court of San Diego County (Cal. App. 4th Dist., Div. 1, Mar. 30, 2023) 2023 WL 2706685.)

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