Litigation Update: August 2018

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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
  • Managing Editor, Reuben Ginsburg
  • Editors, John Derrick, Jessica Riggin and Kenneth Wang
Yelp in the Clear After Yelling Post Challenged.

A lawyer and a law firm sued a former client for libel after the client gave them negative reviews on Yelp. Plaintiffs obtained a $557,918.85 default judgment against defendant, and the court ordered defendant to remove the defamatory reviews. The court also ordered Yelp to remove defendant’s reviews. Yelp filed a motion to set aside the judgment. The trial court denied the motion. The Court of Appeal determined that the Communications Decency Act of 1996 (47 U.S.C. § 230) did not prohibit the directive to Yelp. However, the California Supreme Court reversed, stating: “The Court of Appeal erred in regarding the order to Yelp as beyond the scope of section 230. That court reasoned that the judicial command to purge the challenged reviews does not impose liability on Yelp. But as explained below, the Court of Appeal adopted too narrow a construction of section 230. In directing Yelp to remove the challenged reviews from its website, the removal order improperly treats Yelp as ‘the publisher or speaker of . . . information provided by another information content provider.’ (§ 230(c)(1).) The order therefore must be revised to comply with section 230.” (Hassell v. Bird (Cal., July 2, 2018) 5 Cal.5th 522.)

“Vaccines are the tugboats of preventive health,” William Foege.

Plaintiffs, parents of public or private school pupils, filed an action seeking to invalidate California’s public health laws governing requirements for immunizations against childhood diseases. Senate Bill No. 277 was approved in June 2015 and became effective January 1, 2016. (Health & Saf. Code, § 120325.) The prior version of the statute contained “[e]xemptions from immunization for medical reasons or because of personal beliefs.” The current version allows for “[e]xemptions from immunization for medical reasons,” but not for personal beliefs. Plaintiffs sought to halt enforcement of section 120325, alleging that they have “ ‘sincerely held philosophic, conscientious, and religious objections to state-mandated immunizations.’ ” Plaintiffs further alleged that Senate Bill No. 277 was “ ‘a totalitarian mandate that expects parents to merrily sacrifice their children for the greater good.’ ” A report considered in the California Legislature stated that the protective effect of community immunity wanes as large numbers of children do not receive some or all of the required vaccinations, “ ‘resulting in the reemergence of vaccine preventable diseases in the U.S.’ ” The report described the December 2014 outbreak of measles linked to Disneyland with 131 confirmed cases and stated that according to the Center for Disease Control (CDC), “ ‘measles is one of the first diseases to reappear when vaccination coverage rates fall.’ ” It further stated that in 2014, 600 cases were reported to the CDC, the highest in many years. The trial court sustained defendant’s demurrer without leave to amend and dismissed the action. The Court of Appeal quoted from the U.S. Supreme Court case of Bruesewitz v. Wyeth LLC (2011) 562 U.S. 223: “ ‘the elimination of communicable diseases through vaccination became “one of the greatest achievements” of public health in the 20th century.’ ” After discussing each of plaintiffs’ legal challenges at length, the court affirmed the dismissal. (Brown v. Smith (Cal. App. 2nd Dist., Div. 8, July 2, 2018) 24 Cal.App.5th 1135.)

Punitive Damages Sought Against Utility Company.

A devastating wildfire swept through Calaveras and Amador counties in September 2015. The fire started when a tree came into contact with an overhead power line owned and operated by Pacific Gas and Electric Company (PG&E). Plaintiffs brought suit against PG&E, seeking punitive damages under Public Utilities Code § 2106 and Civil Code § 3294. PG&E sought summary adjudication of the punitive damages claim under § 3294 only. The trial court denied the motion, and PG&E sought a writ. The Court of Appeal noted evidence that approximately 55 million trees have the potential to come in contact with power lines, and PG&E addresses this risk by conducting routine monitoring. The court concluded that plaintiffs failed to present sufficient evidence to raise a triable issue of fact with regard to malice, noting “plaintiffs dismiss the company’s risk management controls and fire mitigation efforts as a mere ‘façade,’ [but] they fail to produce clear and convincing evidence from which a reasonable jury could find that PG&E consciously disregarded the risk of wildfire or willfully ignored fire safety standards.” The appellate court granted the petition for writ of mandate, directing the trial court to vacate its decision denying the motion for summary adjudication and enter a new order granting it. While Public Utilities Code § 2106 provides for exemplary damages where an act or omission is willful, the court ruled only on the § 3294 claim in granting the writ petition as the underlying summary adjudication motion was limited to that. (Butte Fire Cases(Cal. App. 3rd Dist., July 2, 2018) 24 Cal.App.5th 1150.)

Adopted Child Has No Standing to Bring Wrongful Death Suit After his Biological Mother Was Killed.

A complaint for violation of civil rights and violation of the Americans with Disabilities Act alleged a woman called 911, stating that she had taken pills, drank heavily, and would use a baseball bat to provoke the police to shoot her. Officers were dispatched to her residence in response. One of the officers had carried out an involuntary mental health detention on the woman eight days prior. When another officer obtained a key to her apartment from a building manager and attempted to enter, the woman emerged holding a baseball bat. The officers shot the woman, and she died the following day from the resulting injuries. Plaintiff was her biological son and only known living relative. He was adopted by other parents as an infant, but alleged that he maintained “a ‘close relationship with [the decedent] during part of his childhood and throughout his adult life.’ ” A federal trial court dismissed the case after finding that plaintiff had no legally cognizable interest in his relationship with his biological mother because he was adopted by other parents as an infant. The Ninth Circuit Court of Appeals affirmed, finding that since the plaintiff was not a survivor of his biological mother under California law, he had no standing to bring the action. (Wheeler v. City of Santa Clara (9th Cir., July 3, 2018) 894 F.3d 1046.)

Lost in Translation.

A company provided its employees with a handbook setting forth its employment policies. The handbook was written in English and Spanish. The policies required arbitration of employment disputes and denied an employee’s right to bring an action under the California Private Attorneys General Act ( Lab. Code, § 2698 et seq.; PAGA). The English version stated that the denial of the right to bring a PAGA action was severable if such denial were found by a court to be unenforceable. The Spanish version provided the opposite. In agreeing with the trial court that the arbitration agreement was unenforceable, the Court of Appeal noted: “At best, the difference in the severability clauses in the English-language and Spanish-language versions of the handbook is negligent; at worse, it is deceptive.” (Juarez v. Wash Depot Holdings, Inc. (Cal. App. 2nd Dist., Div. 6, July 3, 2018) 24 Cal.App.5th 1197.)

Which Statute of Limitations Applies for Birth Defects from Exposure to Hazardous Chemicals?

Plaintiff was born in 1999 with multiple birth defects, including chromosomal deletion, cervical vertebrae fusion, facial asymmetry, dysplastic nails, diverticulum of the bladder, and a misshapen kidney. She also suffers from developmental delays. For over 20 years, including the term of her pregnancy, plaintiff’s mother worked at a Sony Electronics manufacturing plant. She allegedly worked with and around “teratogenic and reproductively toxic” chemicals. Plaintiff sued in 2012, when she was 12 years old. She alleged that she and her mother were exposed to toxic chemicals at the Sony plant, resulting in her birth defects. The trial court granted summary judgment to Sony based on the statute of limitations. The Court of Appeal affirmed. The question for the California Supreme Court was which statute of limitations applies, Code of Civil Procedure § 340.8, subdivision (a) for toxic exposure claims or § 340.4 for prenatal injuries? California’s highest court reversed, stating: “Because the toxic exposure statute was more recently enacted, and its language plainly encompasses prenatal injuries, we conclude it applies here. The limitations period for toxic exposure suits is two years, but it is tolled while the plaintiff is a minor. [Citations.] Accordingly, the claims here are not time-barred, and the trial court’s entry of summary judgment should be reversed.” (Lopez v. Sony Electronics, Inc. (Cal., July 5, 2018) 5 Cal.5th 627.)

Superior Court’s Policy of Not Providing Free Court Reporter to in Forma Pauperis Litigants Is Invalid.

An in forma pauperis plaintiff was not provided the opportunity to have a court reporter at his civil trial because the San Diego Superior Court in response to a significant reduction of its judicial budget adopted a policy under which it did not make official ones available at most civil trials even for persons who qualified for a fee waiver. In holding the policy to be invalid, the California Supreme Court stated: “[W]e conclude that, as applied to in forma pauperis litigants who are entitled to a waiver of official court reporter fees, the San Diego Superior Court’s general policy of not providing official court reporters in most civil trials while permitting privately retained court reporters for parties who can afford to pay for such reporters is inconsistent with the general teaching of prior California in forma pauperis judicial decisions and the public policy of facilitating equal access to the courts embodied in [Government Code] section 68630, subdivision (a). By precluding an indigent litigant from obtaining the attendance of an official court reporter (to which the litigant would be entitled without payment of a fee), while at the same time preserving the right of financially able litigants to obtain an officially recognized pro tempore court reporter, the challenged court policy creates the type of restriction of meaningful access to the civil judicial process that the relevant California in forma pauperis precedents and legislative policy render impermissible.” (Jameson v. Desta (Cal., July 5, 2018) 5 Cal.5th 594.)

Droit de Suite [right of following on].

Plaintiffs are artists seeking resale royalties under the California Resale Royalties Act (Civ. Code, § 986; CRRA), a statute that grants artists an unwaivable right to five percent of the proceeds on any resale of their work. The artists sought damages for nonpayment of royalties since the CRRA came into effect on January 1, 1977. The Ninth Circuit Court of Appeals discussed the 1976 federal Copyright Act (17 U.S.C. § 301(a)) and its effective date of January 1, 1978, as well as the earlier 1909 federal Copyright Act. The court held that plaintiffs’ action was preempted by the 1976 act, but not by the 1909 one. Therefore, they could seek damages between the effective date of the CRRA and the effective date of the 1976 Copyright Act, i.e., only between January 1, 1977 and January 1, 1978. (Close v. Sotheby’s, Inc. (9th Cir., July 6, 2018) 894 F.3d 1061.)

Uh . . . Duh . . . That Would Be a Conflict.

While serving as an administrative law judge (ALJ) for the State Personnel Board (SPB), plaintiff, a lawyer, became “of counsel” to a law firm specializing in representing clients whose actions are heard by the SPB. Another ALJ discussed one such case handled by that firm in a meeting attended by plaintiff. Plaintiff did not disclose he had joined the firm. Additionally, the other ALJ circulated a proposed opinion on the matter to her colleagues. Plaintiff still remained mum. When the situation became known, plaintiff was terminated by the SPB. An ALJ who heard plaintiff’s case challenging that termination remarked he “ ‘displayed an appalling lack of judgment when he became of counsel’ ” with the law firm. Plaintiff’s ensuing administrative mandamus petition was denied by the superior court. The Court of Appeal affirmed, ordering both plaintiff and the SPB to send copies of its opinion to the State Bar. (Fisher v. State Personnel Bd. (Cal. App. 3rd Dist., July 6, 2018) 25 Cal.App.5th 1.)

“I think the first duty of society is justice,” Alexander Hamilton.

Shortly before trial, a party’s expert suffered a medical emergency. The trial court denied a request to continue the trial, reasoning that the party could just hire a different expert. The Court of Appeal found the trial court abused its discretion and granted a petition for a peremptory writ of mandate. (Padda v. Superior Court (Cal. App. 4th Dist., Div. 2, July 6, 2018) 25 Cal.App.5th 25.)

An Employee’s Severe and Pervasive Mocking of Another Employee’s Stutter Cost Employer $500,000.

Under the Fair Employment and Housing Act (FEHA), an employee with a disability can sue his or her employer for disability harassment. (Gov. Code, § 12940, subd. (j)(1).) For two years, a coworker mocked plaintiff’s stutter in the presence of others . One time, after plaintiff made an announcement on the radio to about 50 other coworkers, the mocking employee got on the radio and repeated it, mimicking a speech impediment. Plaintiff complained about the conduct. A few days later, however, the employer transferred the mocking employee into plaintiff’s unit. Plaintiff brought suit under FEHA. Other employees testified about the conduct, with one estimating he heard it at least 12 times. Defendants argued plaintiff was complaining of “ ‘minor incidents of simple teasing.’ ” A jury found for plaintiff and awarded him $500,000. Despite the fact the jury only had to find the harassing conduct was either severe or pervasive, it found the conduct was both severe and pervasive. The trial court granted a new trial, finding the amount awarded excessive. However, the court did not file a statement of reasons, as required by Code of Civil Procedure § 657. The Court of Appeal found the order granting the new trial was thereby defective, and affirmed the judgment in favor of plaintiff for the full $500,000. (Caldera v. Department of Corrections & Rehabilitation (Cal. App. 4th Dist., Div. 3, July 9, 2018) 25 Cal.App.5th 31.)

Whistleblower Says Medicare Advantage Organizations Submit False Diagnoses to Increase Profits.

Under Medicare Advantage’s capitation system, private health insurance organizations provide Medicare benefits in exchange for a fixed monthly fee per person enrolled in the program—regardless of actual healthcare usage. The system can provide an incentive to rein in costs. However, as noted by the Ninth Circuit Court of Appeals, “human nature being what it is, Medicare Advantage organizations also have some incentive to improperly inflate their enrollees’ capitation rates, if these organizations fall prey to greed.” Plaintiff had filed a whistleblower action under the False Claims Act (31 U.S.C. § 3729(a)(1)(C)), alleging the Medicare Advantage organizations retained his employer to fraudulently increase capitation payments by submitting false diagnoses codes for enrollees. A federal trial court dismissed the action on the pleadings. Reversing, the appeals court noted that plaintiff plausibly pled that defendant Medicare Advantage organizations submitted false claims and certifications and used false records with actual knowledge, reckless disregard, or deliberate ignorance of their falsity. The court further stated plaintiff was entitled to continue with discovery before her claims are resolved, either by summary judgment or at trial. (United States ex rel. Silingo v. Wellpoint, Inc. (9th Cir., July 9, 2018) 895 F.3d 619.)

State Agency Exempt from Paying Overtime, Even Though it Acted as a Joint Employer.

Defendant is a state agency that owns and manages a fairground and horse park. Plaintiffs are a group of seasonal employees who sued the agency for overtime compensation required under California Labor Code § 510. The trial court sustained the agency’s demurrer. On appeal, plaintiffs contended the state agency was a joint employer with various outside promoters and thus was not exempt from paying overtime wages under § 510. The Court of Appeal concluded the claim was not legally viable, holding that the public employee exemption from statutory overtime compensation does not apply only when the work performed furthers the sovereign purposes of the state. (Morales v. 22nd Dist. Agricultural Assn. (Cal. App. 4th Dist, Div. 1, July 10, 2018) 25 Cal.App.5th 85.)

Distribution of Child Pornography.

A high school girls’ softball coach had a sexual relationship with a 17-year-old on the team. They took sexually explicit pictures of themselves and sent them to each other on their mobile phones. The coach also took photos of the two having sex and sent them to the student. One time while the two were having sexual relations, the 17-year-old inadvertently called home and her father overheard the activity. When she got home, he retrieved her phone and took it to the police. A defendant who violates federal law by “distributing” illicit images of minors receives added or enhanced punishment. The question for the court here was whether merely sharing with the minor herself the photos of the two having sex amounts to distribution. The Ninth Circuit Court of Appeals held that it does under federal law. (United States v. Hernandez (9th Cir., July 10, 2018) 894 F.3d 1104.)

Agreement to Refrain from Competitive Bidding at Public Auctions.

A criminal defendant and others agreed to suppress competition by refraining from bidding against each other at public auctions involving foreclosed real properties. The Attorney General charged him with violating the Sherman Act (15 U.S.C. §1). Typically, the determination whether a particular agreement in restraint of trade is unreasonable involves a factual inquiry commonly known as the “rule of reason.” Here, the defendant unsuccessfully moved a federal district court to permit him to explain his intent, arguing the matter should be adjudicated under that rule. Affirming the district court’s denial of his motion, the Ninth Circuit Court of Appeals stated the government is not required to prove specific intent to produce anticompetitive effects where a per se violation is alleged. The “rule of reason” inquiry is inapplicable if the restraint falls into a category of agreements that have been determined to be per se illegal. (United States v. Joyce (9th Cir., July 11, 2018) 895 F.3d 673.)

Governmental Immunity.

A 93-year-old woman was involved in several car accidents. The Department of Motor Vehicles suspended her driver’s license. After several medical/eye examinations, a written test and a successful driving test, the DMV reinstated the license. Thereafter, someone was severely injured—paralyzed from the waist down—when the woman made an illegal left turn. The paralyzed man sued the DMV for reinstating the woman’s license. Both the trial court and appellate court concluded the DMV was entitled to immunity for its licensing action under Government Code § 818.4. The Court of Appeal affirmed the dismissal of the lawsuit. (Richardson v. Department of Motor Vehicles (Cal. App. 1st Dist., Div. 3, July 11, 2018) 25 Cal.App.5th 102.)

Proposition 51 Redux.

In an excessive force/wrongful death case involving sherriff’s deputies, a jury awarded plaintiff $8 million in noneconomic damages. The jury assessed 40 percent fault to the decedent for his own death and 20 percent each to the deputies. One of those deputies was found to have intentionally harmed the decedent. The court entered judgment for the entire $8 million against that deputy, citing Thomas v. Duggins Construction Co., Inc. (2006) 139 Cal.App.4th 1105, which held Civil Code § 1431.2 does not apply to an intentional tortfeasor’s liability in a personal injury case. Reversing, the Court of Appeal stated: “Because we conclude Thomas conflicts with the plain text of section 1431.2, we decline to follow its holding.” The matter was remanded to the trial court with instructions to enter a new judgment allocating noneconomic damages to each defendant in proportion to his percentage of fault. (B.B. v. County of Los Angeles (Cal. App. 2nd Dist., Div., 3, July 10, 2018) 25 Cal.App.5th 115.)

Paying Lump Sum Taxes Did Not Extinguish Easement by Adverse Possession.

Code of Civil Procedure § 325, subdivision (b) states in part: “In no case shall adverse possession be considered established . . . unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have timely paid all . . . taxes . . . .” Here, the trial court concluded one party extinguished an easement by adverse possession. The Court of Appeal reversed because the taxes became delinquent and were paid in a lump sum payment covering several years of that delinquency. Under those circumstances, the appellate court held, the tax payments were not timely as required by the statute. The Court of Appeal reversed the finding that the prescriptive and implied easement was extinguished by adverse possession. (McLear-Gary v. Scott (Cal. App. 1st Dist., Div. 3, July 11, 2018) 25 Cal.App.5th 145.)

Wheelchairs Trying to Maneuver in a Parking Lot.

Plaintiff suffers from a bone disease that renders her unable to walk or stand independently. She requires a wheelchair in order to be mobile. She filed an action for disability discrimination alleging that a supermarket near her home violated the California Disabled Persons Act (Civ. Code, §§ 54-55.3) because it failed to provide a designated and accessible path of travel that did not require her to travel behind parked vehicles. In its statement of decision, the trial court concluded the store was not required to provide such a path of travel. Affirming, the Court of Appeal noted that under the statutory scheme, buildings are subject to the standards set forth in the California Building Standards Code and held that under those standards, defendant was not required to provide wheelchair users an accessible route that did not pass behind parked cars. (Baskin v. Hughes Realty, Inc. (Cal. App. 2nd Dist., Div. 4, July 12, 2018) 25 Cal.App.5th 184.)

Sovereign Immunity.

In June 2012, a helicopter crashed in a national forest, killing the pilot and his three passengers, after striking an unmarked cable suspended 40 feet above a river. The cable was installed by the United States Geological Survey (USGS) as part of a cableway that enabled personnel to collect streamflow measurements and water samples. Although the cable was virtually invisible to aircraft pilots, USGS chose to place no markers or warning signs because the agency adopted the Federal Aviation Administration’s obstruction regulations, which required that only objects more than 200 feet above ground level must be marked. The pilot’s estate and the owner of the helicopter filed suit against the United States, claiming negligence for failure to mark the cable. A district court dismissed the matter for lack of subject matter jurisdiction. The Ninth Circuit Court of Appeals affirmed, concluding USGS’s decision not to mark the cable was driven by policy considerations and fell within the discretionary function exception to the Federal Tort Claims Act (28 U.S.C. §2680(a)). (Morales v. United States (9th Cir., July 13, 2018) 895 F.3d 708.)

Job Applicant Rejected due to Bad Credit Report; No Standing to Sue Despite Statutory Violation.

Plaintiff applied for a job with defendant and was required to sign an authorization permitting defendant to obtain his consumer credit report. If an applicant’s report indicated certain levels of delinquencies, the applicant was disqualified from continuing in the hiring program. Defendant’s employee telephoned plaintiff and told him that, because of delinquencies, his employment application was rejected and the decision was final. Plaintiff thereafter received a copy of the credit report, and shortly after contacted defendant to state it contained inaccuracies. Defendant again informed defendant he was no longer being considered for hiring. Plaintiff sued defendant alleging violations of the Fair Credit Reporting Act (15 U.S.C. § 1681b(b)(3)(A)). Specifically, he alleged defendant was required to provide all job applicants with a copy of a consumer credit report and an opportunity to challenge inaccuracies before taking any adverse action based on it. A district court granted defendant’s motion for summary judgment. The Ninth Circuit Court of Appeals discussed Spokeo, Inc. v. Robins (2016) 136 S. Ct. 1540, which held that in order to satisfy Article III’s standing requirement, a plaintiff seeking damages for the violation of a statutory right must not only plausibly allege the violation but must also plausibly allege a “concrete” injury causally connected to the violation. Affirming, the court stated: “Consequently, although [plaintiff] made a plausible showing of [defendant’s] procedural violation of FCRA, he failed to establish facts showing he suffered actual harm or a material risk of harm.” (Dutta v. State Farm Mut. Auto. Ins. Co. (9th Cir., July 13, 2018) 2018 U.S. App. LEXIS 19349.)

Doctor Precluded from Testifying in Medical Malpractice Case.

Plaintiff sued defendant doctor for medical malpractice. Ruling on a defense motion in limine, the trial court excluded a designated treating doctor from testifying as an unretained expert on the issues of causation and damages at trial after determining his proposed testimony would be duplicative within the meaning of Evidence Code § 723. But the expert would be allowed to testify as to his observations from an imaging study he performed and what the results revealed to him about plaintiff’s condition. The jury found defendant was not negligent, never reaching questions on the verdict form relating to causation. On appeal, plaintiff argued the trial court’s ruling prevented her from showing that defendant’s negligent acts were a substantial factor in causing her injuries. Finding the record supported the trial court’s ruling, the Court of Appeal concluded there was no abuse of discretion and affirmed. (Belfiore-Braman v. Rotenberg (Cal. App. 4th Dist., Div. 1, July 13, 2018) 25 Cal.App.5th 234.)

“Mental health needs a great deal of attention. It’s the final taboo and it needs to be faced and dealt with.” Adam Ant.

Plaintiff was a prisoner in a county jail. She presented uncontroverted evidence that the jail has a policy of shackling mentally ill prisoners to steel tables during recreation times, and that jail officials routinely leave noncompliant detainees naked and chained to their cell doors for hours at a time without access to food, water, or a toilet. When she was released, she brought suit in federal court against the county, the board of supervisors, the sheriff, and jail officials for violation of her civil rights pursuant to 42 U.S.C. § 1983. The district court court granted partial summary judgment to defendants. The matter proceeded to trial wherein plaintiff introduced the jail’s daily logs during her detention, which showed she was deprived of meals, showers, and recreation due in part to overcrowding and understaffing. Plaintiff challenged jury instructions requiring deference to the jail officials who enacted and carried out those policies and practices. The jury returned a verdict for defendants, and plaintiff’s motion for a new trial was denied. The Ninth Circuit Court of Appeals reversed the denial of a new trial and remanded the matter for further proceedings, stating: “[T]he judicial system has a role in safeguarding inmates from serious civil rights abuses, the kind that [plaintiff] claims here.” (Shorter v. Baca (9th Cir., July 16, 2018) 2018 U.S. App. LEXIS 19491.)

Snap! Crackle! Pop!

Proposition 65 was enacted in 1986 and was intended to help Californians make informed decisions about protecting themselves from chemicals known to cause cancer, birth defects, or other reproduction harm. Acrylamide has been known to pose health risks for some time. It was added to Proposition 65’s list of chemicals known to cause cancer in 1990, and later was determined to cause reproductive harm in animal test subjects. The real party in interest here filed a complaint alleging three prominent breakfast cereal providers were required to display cancer and reproductive harm warnings because their cereals contain acrylamide. The cereal companies’ motions for summary judgment were denied, and they brought a petition for extraordinary relief in the Court of Appeal. The appellate court granted the petition, holding the claim is preempted by federal law. (Post Foods, LLC v. Superior Court (Cal. App. 2nd Dist., Div. 1, July 16, 2018) 2018 Cal. App. LEXIS 631.)

Securities Class Action.

A federal district court dismissed a securities class action in which purchasers of American Depository Shares or receipts (ADR’s) alleged that Toshiba Corporation engaged in fraudulent accounting practices. The district court based its decision on its finding that the over-the-counter market by which ADR’s are sold was not a “national exchange” within the meaning of Morrison v. National Australia Bank Ltd. (2010) 561 U.S. 247, and that there was no domestic transaction between ADR purchasers and Toshiba. The Ninth Circuit Court of Appeals framed the issue before it as follows: “[A]t the heart of this appeal is the question of the nature of ADRs and their transactions, and whether Toshiba ADRs are covered by the Exchange Act through either registry on a national exchange, or through domestic sales and purchases.” Reversing the trial court’s dismissal, the appellate court held: “Toshiba ADRs fit comfortably within the Exchange Act’s definition of ‘security,’ specifically as ‘stock.’ ” (Stoyas v. Toshiba Corp. (9th Cir., July 17, 2018) 2018 U.S. App. LEXIS 19640.)

Class Action Over Unsolicited Faxed Advertisements.

Plaintiffs sought to represent a class of plaintiffs who allegedly received unsolicited faxed advertisements from defendants in violation of the Telephone Consumer Protection Act of 1991. A federal trial court denied class certification on the ground that individual issues related to defendant’s affirmative defenses would predominate over issues common to the class. The Ninth Circuit Court of Appeals granted plaintiffs’ request for permission to appeal the order pursuant to Federal Rule of Civil Procedure 23(f). The appellate court concluded that the district court erred in part in holding that the proposed class or subclasses failed to satisfy the predominance requirement of Rule 23(b)(3). The court held that in light of Van Patten v. Vertical Fitness Grp., LLC (9th Cir. 2017) 847 F.3d 1037, “prior express invitation or permission” is an affirmative defense on which the defendant bears the burden of proof. The panel affirmed the district court’s denial of class certification with respect to one possible subclass and reversed the district court’s holding that other possible subclasses could not satisfy the predominance requirement. It held that one subclass would satisfy predominance, and it remanded for a determination whether another one would do so as well. (True Health Chiropractic, Inc. v. McKesson Corp. (9th Cir., July 17, 2018) 2018 U.S. App. LEXIS 19641.)

Snowboarding Tragedy.

On her last run of a day of snowboarding, plaintiff collided with a snowcat pulling a snow-grooming tiller. The accident resulted in the amputation of her left leg, multiple fractures of her right leg, several skull fractures, facial lacerations, and other injuries. In opposition to defendant resort’s motion for summary judgment, plaintiff submitted three declarations to refute defendant’s claim there was no gross negligence (plaintiff had signed a liability waiver releasing claims of ordinary negligence). The trial court sustained objections to all three and granted the motion for summary judgment. Affirming, the Court of Appeal concluded the equipment is an inherent part of the sport of snowboarding and the way the snowcat was operated did not rise to the level of gross negligence. The appellate court stated: “Because the express assumption of risk in the release applies, we need not consider the implied assumption of risk argument also advanced by plaintiffs.” With regard to excluding plaintiff’s declarations, the appellate court stated the trial court did not abuse its discretion. (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (Cal. App. 3rd Dist., June 27, 2018) 2018 Cal. App. LEXIS 638.)

No Wage/Hour Violations.

Plaintiff, an employee of defendant’s fast food restaurant, filed a class action alleging wage and hour violations. California Wage Order 5-2001 requires employees be relieved of all duty during a requisite meal period. At all relevant times, the employer provided 30-minute breaks to be used in any way the employees wished, subject only to a restriction that if they purchased a discounted meal they had to eat it in the restaurant. Plaintiff’s theory is that because defendant required a discounted meal to be eaten in the restaurant, the employees were under sufficient control to render the time compensable. A district court granted defendant’s motion for summary judgment. Affirming, the Ninth Circuit Court of Appeals stated, “Taco Bell relieved their employees of all duties during the meal break period and exercised no control over their activities within the meaning of California law.” (Rodriguez v. Taco Bell Corp. (9th Cir., July 18, 2018) 2018 U.S. App. LEXIS 19825.)

Previously we reported: The Holder Rule Permits Action Against a Lender to the Same Extent as Action Could Be Brought Against the Seller of a Mobile Home.

Plaintiffs bought a motor home that was financed with an installment contract. Shortly after the sale, the dealership assigned the contract to a bank. Plaintiffs assert the motor home was defective from the start. After months passed without the demanded repairs being made, plaintiffs disclaimed ownership of the vehicle and sued the dealership. They also sued the bank on the ground the holder rule allows them to assert all claims against the bank they otherwise had against the dealer. The holder rule, set forth in title 16, section 433.2 of the Code of Federal Regulations, requires the following language in 10-point (or larger) and bold face type: “NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.” The trial court concluded the holder rule did not allow plaintiffs to assert claims against the lender, entered judgment for the bank, and awarded attorney fees to the bank. The appellate court reversed, stating plaintiffs may assert all claims against the bank they might otherwise have against the dealership, but added: “Under the Holder Rule, however, [plaintiffs] may recover no more than what they actually paid toward the installment contract.” (Lafferty v. Wells Fargo Bank (Cal. App. 3rd Dist., Feb. 4, 2013) 213 Cal.App.4th 545.)

The latest: 

The parties reached a stipulated judgment. In this appeal, the bank challenges the award of prejudgment interest and costs added on to the stipulated amount, and the plaintiff cross-appeals from the denial of a request for attorney fees and nonstatutory costs. With regard to the bank’s claim the trial court erred in awarding plaintiff prejudgment interest, the Court of Appeal affirmed, stating: “The California statutes providing for costs and prejudgment interest apply to actions as a whole rather than to individual causes of action such as that provided by the Holder Rule.” As to the cross-appeal, the Court of Appeal also affirmed, stating: “We conclude the Laffertys are limited under the plain meaning of the Holder Rule to recovering no more than the $68,000 they paid under terms of the loan with Wells Fargo.” (Lafferty v. Wells Fargo Bank, N.A. (Cal. App. 3rd Dist., July 19, 2018) 2018 Cal. App. LEXIS 643.)

Business Records Exception and People v. Sanchez.

A conservatee contended her constitutional and statutory rights were violated when the public guardian subpoenaed records of her care and treatment, signed an authorization for their release on her behalf, and then used the records against her at trial. The public guardian served the conservatee with copies of documents it intended to use at trial, including records of her care and treatment at a psychiatric hospital. The conservatee moved in limine to preclude the public guardian’s experts from testifying to case-specific hearsay and opinions of other experts contained in those records, pursuant to People v. Sanchez (2016) 63 Cal.4th 665. At the hearing on the conservatee’s motion, the trial court said it would not allow experts to testify to case-specific hearsay not otherwise proved by admissible evidence, pursuant to Sanchez. The court ordered redaction of conclusions, opinions, and remote or immaterial matters that the conservatee identified in the records. At trial, a psychiatrist read excerpts of the redacted records to the jury. She relied on them in part for her opinion that the conservatee suffers from schizoaffective disorder, bipolar type, and is unable to provide for her own basic needs outside of a highly structured environment. The psychiatrist also relied on her 15 years of personal experience treating the conservatee and upon subsequent interviews with the conservatee, including an interview three days before trial. The psychiatrist testified that she did not personally observe the conservatee at the board and care facility, but reviewed records from her five-day stay there. She described staff entries in the records. A jury found beyond a reasonable doubt that the conservatee continues to be gravely disabled as a result of a mental disorder. In her appeal, the conservatee contended the records were inadmissible hearsay and the psychiatrist impermissibly relayed to the jury case-specific facts within them that were not otherwise proven. In affirming, the Court of Appeal stated: “We conclude [the conservatee’s] medical records, as redacted, were admissible under the business records exception to prove the acts, conditions, and events recorded therein. (Evid. Code, § 1271.)” (Conservatorship of S.A. (Cal. App. 2nd Dist., Div. 6, July 19, 2018) 2018 Cal. App. LEXIS 640.)

Previously we reported: Governmental Damage to the Environment Alleged to Violate Plaintiff’s Constitutional Rights.

Twenty-one young plaintiffs brought suit against the United States, the President, and various executive branch officials and agencies, alleging that the defendants have contributed to climate change in violation of the plaintiffs’ constitutional rights. They allege that the defendants have known for decades that carbon dioxide emissions from the burning of fossil fuels destabilize the climate, yet the defendants have enabled and continue to enable, through various government policies, the burning of fossil fuels, allowing atmospheric carbon dioxide concentrations to reach historically unprecedented levels, injuring the plaintiffs. The defendants moved to dismiss the suit for lack of jurisdiction and for failure to state a claim. A federal trial court denied the motion. On appeal, the defendants argued that allowing the case to proceed would result in burdensome discovery obligations on the federal government that would threaten the separation of powers. The Ninth Circuit Court of Appeals denied extraordinary relief, citing the factors set forth in Bauman v. U.S. Dist. Ct. (9th Cir. 1977) 557 F.2d 650, and noting that the trial court has not yet issued a single discovery order. (In re United States (9th Cir., Mar. 7, 2018) 884 F.3d 830.)

The latest: 

For the second time, the federal government (U.S. Departments of the Interior, Transportation, Agriculture, Commerce, Defense, State, and Energy, Environmental Protection Agency, and the Office of the President) asked the Ninth Circuit Court of Appeals for an order directing the federal trial court to dismiss the case or, in the alternative, stay all discovery and the trial. And once again, the appeals court denied the request, finding no new circumstances justify the relief requested. (In re United States (9th Cir., July 20, 2018) 2018 U.S. App. LEXIS 20226.)

No Private Right of Action.

The Air Carrier Access Act of 1986 (49 U.S.C. § 41705; ACAA) prohibits air carriers from discriminating against individuals on the basis of a physical or mental impairment. Plaintiff has cerebral palsy and uses a motorized wheelchair. In his complaint for violation of the ACAA, plaintiff alleges his wheelchair was repeatedly damaged while in the possession of Southwest Airlines Co. On one occasion, Southwest returned it without a seatbelt. Before plaintiff could replace the seatbelt, he fell out of his wheelchair and broke his shin in two places, resulting in a four-day hospital stay. On another occasion, Southwest returned the wheelchair with a broken armrest. On a third occasion, Southwest returned the wheelchair with damage to the joystick that rendered the wheelchair inoperative. A federal trial court dismissed the action. The Ninth Circuit Court of Appeals affirmed, holding the ACAA is not enforceable through a private right of action. (Segalman v. Southwest Airlines Company (9th Cir., July 23, 2018) 2018 U.S. App. LEXIS 20371.)

Class Action Claims Fall Outside the Scope of Arbitration Clauses in Employment Contracts.

Plaintiffs are current and former employees of a private university and participants in two plans under the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.; ERISA). They were required to sign arbitration agreements as part of their employment contracts. In a class action, they sued the university for breach of its fiduciary duties in administering the two ERISA plans. A federal trial court denied the university’s petition to compel arbitration. The Ninth Circuit Court of Appeals affirmed because the parties agreed to arbitrate claims brought on their own behalf, but the present claims were brought on behalf of the ERISA plans. (Munro v. University of Southern California (9th Cir., July 24, 2018) 2018 U.S. App. LEXIS 20522.)

Digital Piracy.

Digital piracy of copyrighted materials on peer-to-peer networks can have severe financial consequences for copyright holders. In this action, a film production company sued a single user who illegally downloaded and repeatedly distributed a Hollywood action movie called “American Heist.” The film was scheduled for release in January 2015, but it leaked prematurely and became a “top downloaded (i.e., pirated) movie.” Over 100,000 users downloaded and exchanged the copyrighted film. The parties reached a stipulated consent judgment. A federal trial court awarded costs, but not attorney fees, to plaintiff. The Ninth Circuit Court of Appeals reversed and remanded for consideration of an award of reasonable fees, finding the trial court abused its discretion in applying the factors set forth in Fantasy, Inc. v. Fogerty (1994) 510 U.S. 517. (Glacier Films (USA), Inc. v. Turchin (9th Cir., July 24, 2018) 2018 U.S. App. LEXIS 20521.)

Court Erred in Ordering Employee to Sign Settlement Agreement Restraining Employment.

A medical group terminated a physician’s employment “ostensibly because he lacked board certification.” The physician sued the medical group, claiming racial discrimination. The parties settled the case. When the settlement was reduced to writing, the physician refused to sign it because he claimed one of its provisions violated California law: “ ‘The parties agree that [plaintiff] shall not be entitled to work or be reinstated at any [defendant]-contracted facility or at any facility owned or managed by [defendant]. The parties further agree that if [defendant] contracts to provide services to, or acquires rights in, a facility that is an emergency room as defined and regulated by California law at which [plaintiff] is employed or rendering services, [defendant] has the right to and will terminate [plaintiff] from any work in the emergency room without any liability whatsoever.’ ” A federal trial court ordered the physician to sign the settlement agreement, and he appealed. The Ninth Circuit Court of Appeals reversed and remanded, finding the provision runs afoul of California law because it places a substantial restraint on the physician’s medical practice. (Golden v. California Emergency Physicians Medical Group (9th Cir., July 24, 2018) 2018 U.S. App. LEXIS 20519.)

Army Major’s German Wife Refused a Visa, and There is No Judicial Review.

Plaintiff is a major in the U.S. Army. Following his deployment to Iraq, he was stationed in Germany where he married a German woman. They now have three children. The Army ordered the major home for restationing. His wife applied for a visa so she and the children could join him. The U.S. Citizenship and Immigration Services approved the petition. But the U.S. consulate in Frankfurt denied her visa application because she had been convicted of a theft in Germany 20 years earlier. A federal district court denied the major’s petition for a writ of mandamus. The Ninth Circuit Court of Appeals affirmed, stating: “[T]he only standard by which we can review the merits of a consular officer’s denial of a visa is for constitutional error, where the visa application is denied without a facially legitimate and bona fide reason.” (Allen v. Milas (9th Cir., July 24, 2018) 2018 U.S. App. LEXIS 20523.)

“I have a very strict gun control policy: if there’s a gun around, I want to be in control of it,” Clint Eastwood.

Hawaii’s firearms licensing scheme requires gun owners to keep them at home or place of business. If they want to openly carry them in public, they have to show they have a reason to fear injury. Plaintiff is a gun owner who sued the state for infringing his rights under the Second Amendment. The Ninth Circuit Court of Appeals found the law unconstitutional, noting the Second Amendment gives one the right to not only keep but to bear arms. (Young v. Hawaii(9th Cir., July 24, 2018.) 2018 U.S. App. LEXIS 20525.)

Disqualification of Law Firm.

A law firm was vicariously disqualified from an action based on a newly-hired associate in a geographically distant office. While the disqualification appeal was pending, the associate left the law firm. The Court of Appeal reversed the disqualification order and remanded the matter to the trial court with directions to reevaluate under the factors outlined in Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776. (Fluidmaster, Inc. v. Fireman’s Fund Insurance Company (Cal. App. 4th Dist., Div. 3, July 24, 2018) 2018 Cal.App. LEXIS 651.)

No Workers’ Compensation for Football Player.

A former professional football player was denied his claim for workers’ compensation for cumulative injuries he suffered during his career. Although the workers’ compensation judge found jurisdiction was established by the fact the player’s agent negotiated his contract with the Indianapolis Colts while located in California, the Workers’ Compensation Appeals Board (WCAB) reversed. The WCAB found the salient question in assessing whether the football player was “hired” in California was whether he or his agent executed the written employment agreement in this state. In affirming the WCAB’s decision denying the claim, the Court of Appeal stated: “We agree with the WCAB that Tripplett was hired when he executed the written employment agreement offered by Indianapolis. Because the evidence supported the WCAB’s conclusion that both Tripplett and his agent were outside of California when they signed the agreement, Tripplett failed to satisfy his burden of proving he was hired in California.” (Tripplett v. Workers’ Compensation Appeals Board (Cal. App. 4th Dist., Div. 3, July 24, 2018) 2018 Cal. App. LEXIS 652.)

“My religion is very simple. My religion is kindness,” Dalai Lama.

Parents, students, school district employees, and others are the plaintiffs here. They challenge religious exercises at a local school board’s public meetings that include praying, Bible reading, and preaching. The prayers are usually led by a member of the clergy selected from local religious groups. Finding the school board’s practice of praying violates the establishment clause, a federal trial judge granted summary judgment in favor of plaintiffs. The Ninth Circuit Court of Appeals stated: “The Establishment Clause serves intertwined purposes . . . . The Clause protects ‘the individual’s freedom to believe . . . .’ [Citation.] It likewise ensures that the government in no way acts to make belief—whether theistic or nontheistic, religious or nonreligious—relevant to an individual’s membership or standing in our political community.” In affirming the grant of summary judgment, the appeals court said: “The Board’s prayer policy and practice violate the Establishment Clause. . . . This is not the sort of solemnizing and unifying prayer, directed at lawmakers themselves and conducted before an audience of mature adults free from coercive pressures to participate, that the legislative-prayer tradition contemplates. [Citations.] Instead, these prayers typically take place before groups of schoolchildren whose attendance is not truly voluntary and whose relationship to school district officials, including the Board, is not one of full parity.” (Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District (9th Cir., July 25, 2018) 2018 U.S. App. LEXIS 20673.)

Constitutionally Intolerable Risk of Judicial Bias.

Defendant robbed a bank at gunpoint. An FBI agent was in the bank at the time, and when the teller screamed the agent identified himself. Defendant shot and killed the FBI agent; it was for that act that a Nevada state court sentenced defendant to death. After the fact, it was discovered that years earlier the FBI agent had investigated the trial judge for corruption, fraud, and perjury, but the U.S. Attorney declined to prosecute. Prior to trial, the judge had asked the parties if they wanted him to recuse himself because he had served on a commission that was investigated by the FBI, and counsel did not ask for a recusal. A federal trial court granted defendant’s petition for writ of habeas corpus, finding his due process rights were violated in that there was “a constitutionally intolerable risk of judicial bias.” The Ninth Circuit Court of Appeals noted the trial judge was well aware of the FBI’s efforts to ensure a conviction. In affirming the grant of habeas, the appeals court stated: “An average judge in that position would have feared that rulings favoring [defendant], tipping the outcome towards acquittal or a sentence less than death, could cost him his reputation, his judgeship, and possibly his liberty.” (Echavarria v. Filson (9th Cir., July 25, 2018) 2018 U.S. App. LEXIS 20668.)

Attorney Fees Under the Public Records Act.

An officer of a public agency initiated a mandamus proceeding to prevent the disclosure of records sought under the California Public Records Act (Gov. Code, § 6250 et seq.). The trial court ordered the disclosure of some documents but not others, and denied the requester’s request for attorney fees under the act. The Court of Appeal affirmed, stating the act limits an award of attorney fees to plaintiffs who successfully compel a public agency to disclose records after the agency denies a disclosure request. The appellate court concluded: “A mandamus action seeking to prevent disclosure of public records does not arise under the Act nor does it seek to achieve the purposes of the Act—to compel a public agency to disclose records it refuses but is obligated to disclose.” (National Conference of Black Mayors v. Chico Community Publishing, Inc. (Cal. App. 3rd Dist., July 25, 2018) 2018 Cal. App. LEXIS 653.)

Ninth Circuit’s Wage & Hour Inquiry Answered by the California Supreme Court.

Plaintiff brought a class action alleging his employer’s computerized software required employees to clock out on every closing shift before initiating the software’s “close store procedure” on a separate computer in a different office. The close store procedure transmitted daily sales, profit and loss, and store inventory to the company’s corporate headquarters. After the close store procedure was completed, employees had to activate the alarm and lock the doors. The action was originally filed in state court and was removed by defendant to a federal court. Defendant successfully moved for summary judgment. The Ninth Circuit Court of Appeals certified the following question to the California Supreme Court: “Does the federal Fair Labor Standards Act’s de minimis doctrine, as stated in nderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 692, 66 S.Ct. 1187, 90 L.Ed. 1515, and Lindow v. United States (9th Cir. 1984) 738 F.2d 1057, 1063, apply to claims for unpaid wages under California Labor Code sections 510, 1194, and 1197?” In answering the question, the California Supreme Court stated: “We approach the question presented in two parts: First, have California’s wage and hour statutes or regulations adopted the de minimis doctrine found in the federal Fair Labor Standards Act (FLSA)? We conclude they have not. There is no indication in the text or history of the relevant statutes and Industrial Welfare Commission (IWC) wage orders of such adoption. [¶] Second, does the de minimis principle, which has operated in California in various contexts, apply to wage and hour claims? In other words, although California has not adopted the federal de minimis doctrine, does some version of the doctrine nonetheless apply to wage and hour claims as a matter of state law? We hold that the relevant wage order and statutes do not permit application of the de minimis rule on the facts given to us by the Ninth Circuit, where the employer required the employee to work ‘off the clock’ several minutes per shift. We do not decide whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded.” (Troester v. Starbucks Corporation (Cal., July 26, 2018) 2018 Cal. LEXIS 5312.)

Foreclosure and the Servicemembers Civil Relief Act.

Four months after a U.S. Marine refinanced his home, the Marines deployed him to Iraq. Upon his release from service in 2010, plaintiff promptly advised defendant refinancing company of his military service and requested an opportunity to refinance his mortgage. Defendants ignored his request and proceeded with a foreclosure sale of plaintiff’s home. Almost six years later, plaintiff filed the instant suit in a federal court, alleging violation of the Servicemembers Civil Relief Act (50 U.S.C. § 3901 et seq.). The question for the Ninth Circuit Court of Appeals was “what is the applicable statute of limitations for private suits alleging violations of § 303(c) of the Servicemembers Civil Relief Act.” The Ninth Circuit held the current action is time-barred because the four-year statute of limitations found in 28 U.S.C. § 1658 (a) applies, and affirmed the judgment of dismissal. (McGreevey v. PHH Mortgage Corporation (9th Cir., July 26, 2018) 2018 U.S. App. LEXIS 20808.)

Previously we reported: Class Action Involving Fuel Efficiency of Kia Automobiles Decertified . . . After it Settled.

This action involves a nationwide class action settlement arising out of misstatements by defendants regarding the fuel efficiency of the Kia automobile. A federal trial court approved the settlement. The Ninth Circuit Court of Appeals reversed and remanded, holding the trial court abused its discretion in concluding that common questions predominate and in certifying this settlement class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. (In re Hyundai and Kia Fuel Economy Litigation (9th Cir., Jan. 23, 2018) 881 F.3d 679.)

The latest: 

A majority of the Ninth Circuit judges agreed to hear the matter en banc. (In re Hyundai and Kia Fuel Economy Litigation (9th Cir., July 27, 2018).)

Suit Alleges Civil Rights Violations by Police.

On June 2, 2016, Presidential candidate Donald Trump held a political rally at the San Jose Convention Center. Rallies in other cities “spurred violent anti-Trump protests.” In San Jose, protesters were waiting outside, and many of the attendees were beaten, had objects thrown at them and were victims of theft, as they tried to maneuver through the anti-Trump crowd as they exited. The present class action was brought by attendees who suffered injuries. The complaint alleges that police officers were clearly aware of the violence outside the convention center, yet police blocked alternative exits that would have permitted attendees to avoid the mobs. Plaintiffs allege, among other things, § 1983 due process claims against the officers and the city. A federal trial court denied qualified immunity to the police. In affirming, the Ninth Circuit Court of Appeals stated that it found the officers violated clearly established rights and are not entitled to qualified immunity at this stage of the proceedings. (Hernandez v. City of San Jose (9th Cir., July 27, 2018) 2018 U.S. App. LEXIS 20908.)

Who Pays the Cost of Preparing an Administrative Record?

A nonprofit organization petitioned for a writ of administrative mandate against a public entity. The organization elected to prepare the administrative record, but because of delays the agency prepared it. The agency prevailed and moved for costs that included the cost of preparing the record. The trial court awarded costs as requested. The Court of Appeal found no abuse of discretion and affirmed. (Landwatch San Luis Obispo County v. Cambria Community Services District (Cal. App. 2nd Dist., Div. 6, July 27, 2018) 2018 Cal. App. LEXIS 661.)

Wrongful Death Claim Resulting from Delay by the VA.

In 2009, a veteran died of kidney failure while awaiting an appointment for dialysis at a Department of Veterans Affairs facility. In 2014, the veteran’s widow saw media reports that gross mismanagement and unacceptable wait times at the local VA Medical Center were contributing to otherwise preventable deaths of veterans. She filed an administrative claim against the VA in 2015. After the VA denied her claim, she filed a complaint in federal court. The federal trial court dismissed the claims because plaintiff’s administrative claim was untimely. In affirming, the Ninth Circuit Court of Appeals stated that, “As currently drafted, these allegations do not give rise to a reasonable inference that VA medical professionals breached their duty of care, but rather seek relief for the type of administrative negligence in scheduling appointments that must be channeled through the VJRA [Veterans’ Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988)].” The appeals court ultimately found the case was time barred because under the Federal Tort Claims Act a tort claim must be presented in writing within two years after the claim accrues. (Tunac v. United States (9th Cir., July 30, 2018) 2018 U.S. App. LEXIS 20991.)

Trademark Infringement.

Plaintiff Christopher Gordon is the creator of a popular YouTube video known for its catchphrases “Honey Badger Don’t Care” and “Honey Badger Don’t Give a S—.” Defendants design and produce greeting cards using both phrases with slight variations. Plaintiff brought this suit for trademark infringement, and the district court granted summary judgment for defendants, holding that plaintiff’s claims were barred by the test set forth in Rogers v. Grimaldi(2d Cir. 1989) 875 F.2d 994. In reversing and remanding, the Ninth Circuit Court of Appeals noted a jury could find that defendants’ cards are only intelligible to readers familiar with plaintiff’s video, but the court cannot resolve whether defendants’ use of plaintiff’s mark is artistically relevant to their cards as a matter of law. (Gordon v. Drape Creative (9th Cir., July 30, 2018) 2018 U.S. App. LEXIS.)

Art Stolen by the Nazis on Display in Pasadena.

Two Renaissance masterpieces have been on display in California for nearly half a century. They were taken from the Netherlands during World War II by the Nazis. Following the war, the Allied Forces returned the paintings to the Dutch government, which established a claims process for recouping Nazi-looted property. In 1966, the Dutch government sold the two paintings to George Stroganoff-Sherbatoff after he filed a restitution claim alleging that he was the rightful owner. Stroganoff then sold the paintings in 1971 to the Norton Simon Art Foundation and the Norton Simon Museum of Art in Pasadena. In the late 1990’s, plaintiff attempted to recover the paintings, which had been taken by the Nazis from her father-in-law. The Dutch government returned to plaintiff paintings still in its possession, but not those now displayed in Pasadena. Plaintiff thereafter sued the museum. A federal trial court granted summary judgment to the museum. The Ninth Circuit Court of Appeals affirmed, stating: “Because the act of state doctrine deems valid the Dutch government’s conveyance to Stroganoff, the Museum has good title. Holding otherwise would require us to nullify three official acts of the Dutch government—a result the doctrine was designed to avoid.” (Von Saher v. Norton Simon Museum of Art (9th Cir. July 30, 2018) 2018 U.S. App. LEXIS 20989.)

Summary Judgment Reversed in Action for Negligent Undertaking.

When a young man was sweeping up at a dairy, he was hit by the front-end loader on a John Deere tractor, knocked down, and run over by the right front wheel of the tractor. Four months before the accident, the dairy hired defendant, a safety consultant, to assist it with human resources, training, loss prevention, and workers’ compensation issues. The decedent’s parents sued defendant for negligence. Defendant acknowledges it agreed to assist, and did assist, the dairy in carrying out its workplace safety obligations, but asserts it did not agree to fully assume the dairy’s workplace safety obligations to employees working at the dairy. The trial court granted defendant’s motion for summary judgment on the ground the consultant owed no duty of care to the employees because the consultant’s allegedly negligent omissions were not affirmative misfeasance and, therefore, were not acts “wrongful in their nature” for purposes of Civil Code § 2343, which concerns an agent’s responsibilities to third persons. In reversing, the Court of Appeal stated: “As to the elements of the negligent undertaking cause of action, we conclude there are triable issues of material fact as to (1) the precise scope of the consultant’s undertaking and of the duty that may have arisen from the undertaking, (2) whether the consultant breached that duty, and (3) whether the breach caused the death of plaintiffs’ son.” (Peredia v. HR Mobile Services, Inc. (Cal. App. 5th Dist., July 30, 2018) 2018 Cal. App. LEXIS 664.)

Previously we reported: Racial Profiling.

The background involves allegations the Maricopa County, Arizona Sheriff Joseph M. Arpaio’s police force has a custom, policy and practice of racially profiling Latino drivers and passengers, and of stopping them pretextually under the auspices of enforcing federal and state immigration-related laws, resulting in longer and more burdensome detentions for Latinos than for non-Latinos in violation of federal laws. The federal trial judge concluded defendants employed an unconstitutional policy of considering race as a factor in determining where to conduct patrol operations, in deciding whom to stop and investigate for civil immigration violations, and in prolonging the detentions of Latinos while their immigration status was confirmed. As a result, the trial court permanently enjoined defendants from conducting these procedures. On appeal, defendants argued the injunction was overbroad in such areas as ordering the racial profile training of police officers, corrective supervision procedures for constitutional violations and requiring video-recording of traffic stops. To the extent the injunction addressed constitutional violations, the Ninth Circuit Court of Appeals affirmed the trial court’s orders, but drew the line and reversed with regard to the injunction’s requirement those monitoring compliance take into account misconduct complaints about officers, stating, “if an officer commits spousal abuse, or clocks in late to work, or faces a charge of driving under the influence,” such actions may be violations of some rules or laws, but they do not involve constitutional issues. Thus, the injunction was affirmed in part and reversed in part. (Melendres v. Arpaio (9th Cir., Apr. 15, 2015) 784 F.3d 1254.)

The latest: 

The federal trial court found the Maricopa County Sheriff and command staff knowingly failed to implement the injunction, deliberately withheld evidence in violation of court orders, and “ ‘manipulated all aspects’ of the internal affairs process to minimize discipline” of deputies and command staff. The court entered a second supplemental injunction. An independent monitor was vested with the authority to supervise and direct internal investigations relaing to the instant class action involving racial profiling, and the court directed the county to implement a victim compensation program for individuals injured by violations of the injunction. The Ninth Circuit Court of Appeals disagreed with the sheriff’s argument the trial court failed to tailor the terms of the second amended injunction, agreed with the district court’s findings and order, and affirmed. (Melendres v. Maricopa County(9th Cir. July 31, 2018) 2018 U.S. App. LEXIS 21155.)

Clear as Mud: the Governmental Claim Process.

A county accepted a governmental claim as timely and denied it. Because it accepted the claim as timely, the county did not warn the claimant to seek to leave to present a late claim. In the claimant’s later-filed lawsuit, the court granted summary judgment to the county on the ground the plaintiff’s claim was untimely. Later, the court granted a motion for new trial, ruling there were triable issues of fact whether the county waived the defense of untimeliness because it did not warn the claimant she should seek leave to present a late claim pursuant to Government Code § 911.3. In reversing, the Court of Appeal stated: “We conclude here that a claimant may be estopped from invoking the section 911.3 waiver provision where a public entity’s failure to notify the claimant that a claim is untimely is induced by the claimant’s representation on the government claim form.” (Estill v. County of Shasta (Cal. App. 3rd Dist., July 31, 2018) 2018 Cal. App. LEXIS 671.)

False Advertising.

Plaintiff filed a class action under Business & Professions Code § 17200 et seq. and Civil Code § 1750 et seq. against an electronics dealer that allegedly used false and misleading prices in its ads to mislead customers to believe they were buying products at a discounted price. The trial court sustained defendant’s demurrer without leave to amend because the complaint showed plaintiff obtained the product he wanted at the price it was offered, so he suffered no damages. In reversing, the Court of Appeal noted that a consumer need only allege that he or she relied on a misrepresentation when purchasing the product, and that he or she would not have purchased the product but for that representation. (Hansen v. Americas, Inc. (Cal. App. 2nd Dist., Div. 7, July 31, 2018) 2018 Cal. App. LEXIS 665.)

Order Awarding Domestic Abuser Child Custody and Visitation Reversed.

A family court ruled a father is a domestic abuser, but then ordered joint child custody to both parents, but most of the visitation time with their seven-year-old child was ordered to be with the father. The Court of Appeal reversed the order and remanded the matter to the trial court to make the findings about seven factors that are mandatory under Family Code § 3044 when custody is awarded to a person who has committed domestic violence within the previous five years. (Jaime G. v. H.L. (Cal. App. 2nd Dist., Div. 7, July 31, 2018) 2018 Cal. App. LEXIS 668.)

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