Litigation Update: August 2019

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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, Dean Bochner, Glenn Danas, Jessica Riggin, and Kenneth Wang
Walk Time.

Correctional workers claimed they were entitled to compensation for activities before and after their shifts, including the time spent walking to and from their cars at the far end of the parking lot, where they were required to park, known as walk time. The California Supreme Court held that those employees who were part of a collective bargaining agreement had already agreed to appropriate compensation and were not entitled to any more. As to those who were not part of a collective bargaining agreement, the terms and conditions of their employment were determined by their employer’s Pay Scale Manual. The Supreme Court remanded the matter for further factual determinations. (Stoetzl v. Department of Human Resources (Cal., July 1, 2019) 7 Cal.5th 718.)

Sanctions for Bringing a Frivolous Appeal.

Plaintiff spent years trying to collect a settlement payment of $250,000. The Court of Appeal determined that defendant’s appeal was frivolous and awarded $44,654.64 in sanctions against defendant. (J.B.B. Investment Partners Ltd. v. Fair (Cal. App. 1st Dist., Div. 2, July 2, 2019) 37 Cal.App.5th 1.)

After Commercial Property Was Condemned, Both the Landlord and Tenant Claimed the Proceeds.

A school district brought a condemnation action involving commercial property where a restaurant was located, and the trial court entered a judgment in favor of the school district on its eminent domain complaint. The present action concerns a dispute between the property owner/landlord and the restaurant owner/tenant. In relevant part, the lease stated: “All awards for the taking of any part of the Premises or any payment made under the threat of the exercise of the power of eminent domain shall be the property of the Landlord.” After the trial court entered the judgment of condemnation, both the landlord and tenant claimed the proceeds. The trial court determined that the lease did not give the landlord the right to monies awarded to the restaurant in the eminent domain proceeding. Affirming, the Court of Appeal held that what monies went to the landlord and what monies went to the tenant “were issues decided in the eminent domain proceeding.” (Thee Aguila, Inc. v. Century Law Group, LLP (Cal. App. 2nd Dist., Div. 1, July 2, 2019) 37 Cal.App.5th 22.)

Free Speech at Shopping Centers.

Defendants own two large shopping centers. Plaintiffs are anti-abortion activists who wished to engage in boycott picketing at the shopping centers because some of the store owners donated money to Planned Parenthood. Plaintiffs would hold signs displaying images of embryos. Defendants offered to work with plaintiffs subject to certain conditions, such as restricting the location for their activities. Plaintiffs objected to defendants’ conditions, and this lawsuit resulted. The trial court found that defendants’ restrictions did not violate article I, section 2 of the California Constitution. Plaintiffs appealed. The Court of Appeal held defendants’ restrictions on picketing locations were permissible, as was the refusal to allow the picketers to wear body cameras. But the appeals court held the centers’ ban on “grisly or gruesome” displays was a different matter, stating that restriction was “a content-based restriction that does not survive strict scrutiny review.” (Center for Bio-ethical Reform, Inc. v. The Irvine Company, LLC (Cal. App. 4th Dist., Div. 3, July 2, 2019) 37 Cal.App.5th 97.)

Bikini Baristas.

In response to increased sex crimes in and around “bikini barista” stands, where employees wear outfits much more revealing than a typical bikini, a city in the State of Washington amended its lewd conduct ordinance, requiring employees to cover minimum body areas. A group of owners and employees sued for violation of their First and Fourteenth Amendment rights. A federal trial court enjoined enforcement of the ordinance. The Ninth Circuit Court of Appeals vacated the injunction, finding that plaintiffs did not show a likelihood of prevailing on the merits of their claims. (Edge v. City of Everett (9th Cir., July 3, 2019) 929 F.3d 657.)

No Enforceable Judgment After New Trial Granted.

A jury awarded plaintiff $1,620,000 in compensatory damages and $280,000 in punitive damages. After entry of judgment, defendant successfully moved for a new trial on punitive damages. The court granted defendant’s motion “subject to denial if Plaintiff accepts a reduction to $10,000.” Plaintiff rejected the remittitur.  Plaintiff appealed the order granting a new trial and sought to enforce the judgment. The trial court concluded there was no enforceable judgment. Affirming, the Court of Appeal stated: “Here, there was no final judgment; it was vacated by operation of law.” (Newstart Real Estate Investment LLC v. Huang (Cal. App. 2nd Dist., Div. 8, July 3, 2019) 37 Cal.App.5th 159.)

President Trump’s Reprogramming of Funds to Build a Border Wall.

President Trump and some of his cabinet members decided to “reprogram” funds appropriated by Congress to the Department of Defense for Army personnel needs to instead use those funds for construction of a barrier along the southern border. Plaintiffs sued to enjoin the reprogramming and expenditure of funds, arguing that defendants had no authority to redirect funds appropriated by Congress. A federal district court agreed with plaintiffs and issued a permanent injunction. Defendants appealed the decision and moved the Ninth Circuit for an emergency stay of the injunction. The Ninth Circuit denied the motion, ruling that defendants were unlikely to prevail on the merits of their appeal because they had no authority for the reprogramming, and plaintiffs had a valid cause of action to challenge the reprogramming.  The Ninth Circuit also concluded that defendants had failed to show that they would suffer irreparable injury absent a stay, and the public interest and balance of hardships did not support a stay. (Sierra Club v. Trump (9th Cir., July 3, 2019) 929 F.3d 670.)

The latest:

A divided U.S. Supreme Court granted defendants’ application to stay the district court’s permanent injunction. The nation’s high court stayed the injunction pending disposition of the appeal in the Ninth Circuit and any subsequent writ of certiorari or judgment by the Supreme Court. (Trump v. Sierra Club (U.S., July 26, 2019) 2019 WL 3369425.)

Alleged Breaches of Fiduciary Duty by Corporate Trustee.

Plaintiff is the beneficiary of an irrevocable trust created under California law. Defendant trust company is the trustee. Plaintiff alleged that defendant invested trust funds in its own, lesser performing, funds portfolio, and charged improper and excessive fees for routine preparation of fiduciary tax returns. The complaint also alleged elder abuse and unfair competition. The trial court dismissed the action without leave to amend, reasoning that the Securities Litigation Uniform Standards Act (28 U.S.C. § 1291; SLUSA) barred the case from proceeding. Reversing, the Ninth Circuit concluded SLUSA did not preclude the imprudent investment or elder abuse claims, and that the excessive fees claim survived the motion to dismiss. (Banks v. Northern Trust Co. (9th Cir., July 5, 2019) 929 F.3d 1046.)

Code of Civil Procedure § 128.7 Sanctions Order Reversed.

Plaintiff’s attorney #1 filed a legal malpractice action against defendant. Defendant filed a motion for sanctions on the ground the action lacked merit. Attorney #1 withdrew as plaintiff’s counsel. Defendant served plaintiff’s attorney #2 with a motion for sanctions under Code of Civil Procedure § 128.7, which permits a court to impose sanctions on an attorney who files a paper with the court for improper purposes, subject to a safe harbor period to permit the attorney to withdraw the paper. The trial court granted sanctions against attorney #2. Reversing, the Court of Appeal stated: “We conclude there is no evidence that the attorney presented the complaint to the court within the meaning of section 128.7 before he was served with the motion for sanctions. A new attorney’s filing of a declaration merely notifying the court of a change in counsel does not constitute presenting the complaint to the court under section 128.7.” (Primo Hospitality Group, Inc. v. Haney (Cal. App. 2nd Dist., Div. 5, July 5, 2019) 37 Cal.App.5th 165.)

Slip-resistant Shoes.

To avoid slip and fall accidents, a restaurant adopted a safety policy that required all hourly restaurant employees to wear black, slip-resistant, closed-toed shoes. The policy did not require employees to purchase a specific brand; nor did the policy prohibit employees from wearing their shoes outside of work. Labor Code § 2802 requires employers to reimburse employees for all necessary expenditures incurred by an employee in direct consequence of the discharge of duties. One of the employees filed the instant class action alleging a claim under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.), seeking penalties. The Court of Appeal held that the cost of shoes does not qualify as a necessary expenditure under § 2802. (Townley v. BJ’s Restaurants, Inc. (Cal. App. 3rd Dist., July 8, 2019) 37 Cal.App.5th 179.)

Talc Case.

The bellwether case, in one of several coordinated suits in which the plaintiffs allege talcum powder caused ovarian cancer, went to trial.  A jury awarded plaintiff $70 million in compensatory damages and $347 million in punitive damages. The trial court granted both a JNOV motion and a new trial motion. Both sides appealed. The Court of Appeal affirmed most of the trial court’s ruling, but reversed in part, stating: “We conclude there was no substantial evidence to support a finding of liability as to Johnson & Johnson, a parent company that stopped manufacturing Johnson’s Baby Powder in 1967, several years before there were any investigations or studies about a link between genital talc use and ovarian cancer. The evidence also failed to support a finding of malice as required for a punitive damages award, and we affirm the JNOV in favor of JJCI [Johnson & Johnson Consumer Inc.] on that ground. We conclude there was substantial evidence to support the jury’s other findings as to JJCI. However, we must apply a different standard of review when evaluating the trial court order granting JJCI’s motion for a new trial. We determine the causation evidence was in significant conflict and would have supported a defense verdict. We therefore reverse the JNOV in favor of JJCI as to liability, but affirm the trial court order granting JCCI’s motion for a new trial.” (Johnson & Johnson Talcum Powder Cases (Cal. App. 2nd Dist., Div. 3, July 9, 2019) 37 Cal.App.5th 292.)

Forfeiture of Arguments on Appeal.

A 13-year-old boy riding a bicycle was struck and killed by a school bus owned by defendant. A jury found the boy was 80 percent negligent and awarded his parents $250,000 in damages. The trial court denied the parents’ motion for new trial. The Court of Appeal found that plaintiffs forfeited most of their claims of error by failing to make cognizable arguments or cite to the record, but did consider several claims of error involving jury instructions and the admission of evidence. Finding no merit to any of plaintiff’s arguments, the appellate court affirmed the judgment. (Hernandez v. First Student, Inc. (Cal. App. 2nd Dist., Div. 8, July 9, 2019) 37 Cal.App.5th 270.)

Freedom of Information Act Request.

Plaintiff, a government watchdog group, requested two documents from the Centers for Disease Control (CDC) under the Freedom of Information Act relating to the University of Hawaii’s biolab. One of the documents was a CDC inspection report, and the other a letter from CDC to the university’s biolab. CDC initially denied both requests, but later produced the documents with certain redactions. A federal trial court found the redactions were justified. The Ninth Circuit affirmed the trial court’s order, except as to a redaction concerning public endangerment. As to the public endangerment redaction, the Ninth Circuit remanded the matter for a further hearing. (Civil Beat Law Center v. Centers for Disease Control & Prevention (9th Cir., July 10, 2019) 929 F.3d 1079.)

Giving Excuse Instruction in Negligence Per Se Situation Was Error.

Plaintiff was driving on the freeway when a mattress suddenly flew at her car. Swerving to avoid it, she hit a barrier and was injured. Plaintiff’s main theory at trial was negligence per se pursuant to Vehicle Code § 23114, which requires vehicles to be loaded so contents stay put. Even though eyewitnesses observed the mattress leaving defendant’s truck, defendant contended he was not carrying a mattress. Defendant also argued that he was not negligent because he directed an employee to make sure the truck was empty and the employee confirmed it was empty. A jury found in favor of the defendant. The court instructed the jury, “A violation of a law is excused if the following is true: that despite using reasonable care, a person was not able to obey the law.” The Court of Appeal held that giving that excuse instruction was error and reversed the judgment. (Baker-Smith v. Skolnick (Cal. App. 2nd Dist., Div. 8, July 9, 2019) 37 Cal.App.5th 340.)

Previously we reported:
Alleged Breach of Settlement Confidentiality Agreement by Plaintiff’s Lawyer.

After a case was settled, plaintiff’s lawyer wrote, “Approved as to form and content,” and signed the settlement agreement. Relevant provisions of the settlement agreement include: “Said Settlement Agreement shall be on the behalf of the settling Parties, individually, as well as on the behalf of their, without limitation, respective beneficiaries, trustees, principals, attorneys . . .” and, “Plaintiffs and their counsel agreethat they will keep completely confidential all of the terms and contents of this Settlement Agreement. . . .” Plaintiff’s lawyer was later interviewed by a reporter for a publication that reports on verdicts and settlements. In that interview, the plaintiff’s lawyer stated:

“1. The recent case of a 14-year-old girl—who was at a mall with friends, had two Monster energy drinks, went into cardiac failure, and died—had been resolved.

“2. In response to a question about what the resolution was, “[S]ubstantial dollars for the family.” [¶]

“3. Monster ‘wants the amount to be sealed.’

“4. Regarding Monster’s energy drinks, ‘It is not the individual ingredients, it is the synergistic effect of these 26 ingredients’ that is ‘deadly.’ ”

Monster filed this action against plaintiff’s attorney, asserting causes of action for: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) unjust enrichment, and (4) promissory estoppel. The trial court denied an anti-SLAPP motion as to the contract cause of action, and granted it as to the others. Stating the attorneys were not parties to the settlement agreement, the Court of Appeal reversed the denial of the antiSLAPP motion and ordered the trial court to grant the motion in its entirety, and to grant attorney fees and costs. The appellate court also awarded attorney fees and costs incurred on appeal to plaintiff’s lawyer. (Monster Energy Company v. Schechter (Cal. App. 4th Dist., Div. 2, Aug. 13, 2018) 26 Cal.App.5th 54.)

The latest:

The California Supreme Court reversed the judgment of the Court of Appeal, stating: “Counsel allegedly violated the agreement by making public statements about the settlement and were sued, inter alia, for breach of contract. Counsel urged they were not personally bound by the confidentiality provisions and moved to dismiss the suit under the anti-SLAPP statutes. As to the cause of action at issue here, the trial court denied counsels’ motion. The Court of Appeal reversed that ruling, concluding the notation meant only that counsel recommended their clients sign the document. We conclude the notation does not preclude a factual finding that counsel both recommended their clients sign the document and intended to be bound by its provisions.” (Monster Energy Co. v. Schechter (Cal., July 11, 2019) 7 Cal.5th 781.)

Summary Judgment Reversed in Police Shooting Case.

Shortly after midnight, a bookstore employee told a 9-1-1 dispatcher that a man threatened him with a knife. Defendant police officer went to the scene where he encountered a man walking at a steady pace in the officer’s direction. Seconds later, the police officer fatally shot the man. Decedent’s family brought an action under the Fourth and Fourteenth Amendments and various state laws. A federal trial court granted defendant’s motion for summary judgment and dismissed the action against the officer. Reversing the grant of summary judgment on the Fourth Amendment and state law claims, the Ninth Circuit held there was a “genuine dispute whether [decedent] posed a significant threat to [the officer].” (Nehad v. Browder (9th Cir., July 11, 2019) 929 F.3d 1125.)

Trial Court Applied the Wrong Standard in Reviewing School District’s Denial of a Renewal Petition by a Charter School.

A school district denied a charter school’s petition for renewal of its operating authority. The charter school sought a writ of mandate in the trial court. The trial court concluded it had to apply an extremely deferential standard of review because the school district was performing a quasi-legislative action when it denied the charter school’s renewal petition. Finding the district’s decision was not arbitrary or capricious, the trial court denied relief to the charter school. Reversing, the Court of Appeal stated: “In considering a renewal petition, the school district is not acting in a legislative function by creating new policy, but rather performing a quasi-judicial function by applying existing standards and rules defined by state statute to determine whether the evidence presented by the charter school regarding its past performance is sufficient to satisfy those standards. The applicable statutes allow the District to deny a renewal petition only after conducting a hearing and making specific factual findings. This process bears all the hallmarks of a quasi-judicial action. Additionally, we conclude that after a charter school’s initial petition is approved by a school district, the petitioner has a fundamental vested right to continue operating the charter school such that a school district’s decision that deprives the petitioner of that right is subject to independent judicial review.” (Oxford Preparatory Academy v. Chino Valley Unified School Dist. (Cal. App. 4th Dist., Div. 1, July 11, 2019) 37 Cal.App.5th 413.)

Meaning of Terms in an Insurance Policy—Ordinary and Plain Meaning or Specialized Meaning?

Plaintiff produces a television series based in Jerusalem, and incurred significant expenses moving the series out of Jerusalem due to rockets fired by Hamas from Gaza. Plaintiff made a claim under its television production insurance policy’s terrorism coverage for losses it incurred in the move. The insurer denied the claim, stating the loss resulted from war, warlike action or insurrection, all of which were excluded. A federal trial court granted summary judgment for the insurer, construing “war” and “warlike action by a military force” in accordance with their ordinary and plain meanings. Reversing, the Ninth Circuit stated: “Section 1644 of the California Civil Code requires us to apply the specialized meaning of a term–instead of the plain, ordinary meaning–when that specialized meaning has been developed from customary usage in a given industry and when both parties have constructive notice of that usage. Both ‘war’ and ‘warlike action by a military force’ have a specialized meaning in the insurance context and the parties had, at the least, constructive notice of the meaning.” (Universal Cable Productions, LLC v. Atlantic Specialty Ins. Co. (9th Cir., July 12, 2019) 929 F.3d 1143.)

Immunity May be Forfeited if Not Timely Raised as an Affirmative Defense.

Plaintiff, a U.S. Forest Service firefighter, was in a sleeping bag in between firefighting shifts at the site of a forest fire when she was run over by a water truck servicing the camp’s shower unit, and was seriously injured. She sued defendants for creating a dangerous condition of public property. After plaintiff’s counsel gave opening statement, defendants moved for nonsuit based on Government Code § 850.4 (“Neither a public entity, nor a public employee acting in the scope of his employment, is liable for any injury resulting from the condition of fire protection or firefighting equipment or facilities . . .”). Plaintiff argued defendants waived that immunity by not raising the issue earlier; defendants argued the immunity is jurisdictional and may be raised at any time. The trial court ruled in favor of defendants. The California Supreme Court ruled the other way, stating: “The question presented is whether this immunity provision constitutes an affirmative defense that may be forfeited if not timely raised or instead serves as a limitation on the fundamental jurisdiction of the courts, such that the issue can never be forfeited or waived. We conclude that Government Code section 850.4 immunity does not deprive a court of fundamental jurisdiction but rather operates as an affirmative defense to liability.” (Quigley v. Garden Valley Fire Protection District, July 15, 2019) 7 Cal.5th 798.)

Denial of Class Certification in Wage/hour Case Affirmed.

Property inspectors for two major insurance companies alleged they were in fact employees of the insurers and deprived of minimum wages, overtime, meal and rest breaks, reimbursement of expenses, and accurate wage statements. Plaintiffs moved for class certification supported by an expert declaration that liability could be determined and damages calculated classwide by way of statistical analyses of results obtained from an anonymous, double-blind survey of class members. The trial court denied the motion, finding the expert’s plan failed to show that their status as employees as opposed to independent contractors could be established on predominately common proof, failed to address individualized issues, and deprived defendants of the ability to assert defenses. The Court of Appeal affirmed, finding the trial court acted within its discretion. (McCleery v. Allstate Insurance Co. (Cal. App. 2nd Dist., Div. 1, July 15, 2019) 37 Cal.App.5th 434.)

Big Pharma in Competition.

Plaintiff, a biotechnology company that develops small-molecule drugs for the treatment of rare diseases, entered into a collaboration agreement with a Danish pharmaceutical company.  The Danish company gave defendant a copy of the collaboration agreement without plaintiff’s consent. Defendant allegedly decided plaintiff’s development efforts posed a threat to sales of its own product, and induced the Danish company to cut off all ties with plaintiff. Plaintiff sued defendant for various torts for interfering with its contract with the Danish company. A federal trial court dismissed the action. The Ninth Circuit certified two questions to the California Supreme Court: (1) Does California Business and Professions Code section 16600 (“Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void”) void a contract by which a business is restrained from engaging in a lawful trade or business with another business? (2) Is a plaintiff required to plead an independently wrongful act in order to state a claim for intentional interference with a contract that can be terminated by a party at any time, or does that requirement apply only to at-will employment contracts? More later. (Ixchel Pharma, LLC v. Biogen, Inc. (9th Cir., July 16, 2019) 930 F.3d 1031.)

Rogue Juror.

In a civil case involving an allegedly faulty irrigation system that caused injury to the plaintiff, the jury returned a verdict in favor of the defendant, the designer and installer of the irrigation system. Plaintiff moved for a new trial based on juror misconduct. The trial court found there was misconduct, but that it did not prejudice plaintiff. The juror in question cast his vote for the defendant before the start of deliberations, and then stated at the beginning of deliberations that he had been doing the same kind of installations for years and that anybody would have put the system together in the exact same way, and that it was the vineyard’s owner who was responsible once the installation of the irrigation system was “put together.”  Reversing the denial of the new trial motion, the Court of Appeal stated: “A ‘rogue juror’ is someone who, in a mischievous way, wanders apart from fellow jurors, does not follow the court’s instructions, and violates the juror’s oath. (See CACI No. 100.) This undermines the integrity of trial by an impartial jury. Such a juror may not vote or influence other jurors based upon asserted expertise on a matter not in evidence at trial. This is juror misconduct which raises a presumption of prejudice.” (Nodal v. Cal-West Rain, Inc. (Cal. App. 6th Dist., July 17, 2019) 2019 WL 3213856.)

Discrimination on the Basis of an Employee’s Foreign Accent.

In an employment discrimination action under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), plaintiff is a registered nurse who alleged she was discriminated against because of her national origin, her thick accent, and her age. The trial court granted summary judgment for the hospital. The Court of Appeal vacated the summary judgment and directed the trial court to enter an order of summary adjudication in defendant’s favor on a portion of plaintiff’s claims, stating in relevant part: “Discrimination on the basis of an employee’s foreign accent is a sufficient basis for finding national origin discrimination.” (Ortiz v. Dameron Hospital Assn. (Cal. App. 3rd Dist., June 20, 2019) 2019 Cal. App. LEXIS 642.)

Constructive Discharge.

In an employment discrimination action under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), plaintiff alleged she was forced to take a medical leave of absence and ultimately quit due to intolerable working conditions created by her supervisor. The trial court granted summary judgment for the hospital. The Court of Appeal vacated the summary judgment and directed the trial court to enter an order of summary adjudication in defendant’s favor on a portion of plaintiff’s claims, stating in relevant part: “Here, [plaintiff] presented evidence that would allow a reasonable trier of fact to conclude that [her supervisor], a supervisory employee, intentionally created the working conditions at issue here, and that a reasonable person faced with those conditions would have felt compelled to leave.” (Galvan v. Dameron Hospital Assn. (Cal. App. 3rd Dist., June 20, 2019) 2019 Cal. App. LEXIS 643.)

No Liability for Third Party Sexual Abuse Against Foster Child.

Jane Doe, who had spent most of her childhood in the foster system, was placed in a new foster home at the age of 17.  During that placement, she had a consensual sexual relationship with one adult foster brother, resulting in her pregnancy, and was raped by another adult foster brother. She concealed the consensual relationship from her social workers and was transferred to a different foster home the same day she revealed she had been raped.  Jane Doe subsequently sued the County Department of Children and Family Services and a foster family agency, alleging that their negligence and failure to perform mandatory duties resulted in her sexual abuse by the foster brothers. The trial court granted nonsuit, and the Court of Appeal affirmed, concluding that the foster brothers’ conduct was not foreseeable to defendants because “there was no evidence showing Defendants had actual knowledge of the brothers’ criminal tendencies or that they posed any risk of harm.” (Jane Doe v. Department of Children and Family Services (Cal. App. 2nd Dist., Div. 8, June 20, 2019) 2019 Cal. App. LEXIS 650.)

No Liability for Third Party Criminal Conduct at Shopping Center.

A man was seriously injured in a shopping center, outside a bar/lounge within the center, when he was attacked by an unknown person. He sued the shopping center for lack of security. In opposing defendant’s motion for summary judgment, plaintiff identified three areas where the shopping center failed in providing security: (1) failure to inquire about criminal activities reported to the police; (2) failure to establish a policy or procedure to require tenants to report occurrences of criminal activities to the shopping center; and (3) failure to review security camera footage. The trial court granted summary judgment for defendant. Affirming, the Court of Appeal stated: “Williams has not carried his burden in opposing the motion for summary judgment to establish that [the shopping center] had a legal duty to implement additional measures to uncover incidents of criminal acts on the premises and to secure the premises against future, possible third-party conduct.” (Williams v. Fremont Corners, Inc. (Cal. App. 6th Dist., June 24, 2019) 2019 Cal. App. LEXIS 645.)

Previously we reported:
“In the case of news, we should always wait for the sacrament of confirmation,” Voltaire.

Plaintiff is a television reporter who was fired by a network. He brought an action for race and age discrimination. Defendant network filed a special motion to strike pursuant to Code of Civil Procedure § 425.16. As part of its evidentiary showing, defendant submitted a copy of a newspaper article and a copy of a piece submitted for broadcast by plaintiff. There were three similarities between the newspaper article and the proposed broadcast piece. The trial court granted the special motion to strike. Reversing, the Court of Appeal stated:  “This is a private employment discrimination and retaliation case, not an action designed to prevent defendants from exercising their First Amendment rights.”  A dissenting justice stated:  “I would hold that a news organization’s employment decisions concerning a person, like [plaintiff], who has an undisputedly central role on the content of the news concerns an act in furtherance of the organization’s First Amendment rights and made in connection with issues of public interest.” (Wilson v. Cable News Network, Inc. (Cal. App., 2nd Dist., Div. 1, Dec. 13, 2016) 6 Cal.App.5th 822.)

The latest:

The California Supreme Court affirmed in part and reversed in part. Reversing the Court of Appeal in part, California’s high court stated: “Some courts of appeal, including the court in this case, have concluded the anti-SLAPP statute cannot be used to screen claims alleging discriminatory or retaliatory employment actions. We hold otherwise. The statute contains no exception for discrimination or retaliation claims, and in some cases the actions a plaintiff alleges in support of his or her claim may qualify as protected speech or petitioning activity under section 425.16.” Affirming the Court of Appeal in part, the Supreme Court stated: “The second question concerns the application of the anti-SLAPP statute to the journalist’s claim that defendant defamed him by privately discussing the alleged reasons for his termination with potential employers and others. We conclude that this claim need not be screened for merit because these privately communicated remarks were not made in connection with any issue of public significance, as the statute requires.” (Wilson v. Cable News Network, Inc. (Cal., July 22, 2019) 2019 Cal. LEXIS 5226.)

Previously we reported:
Law School Exam Question on Choice of Law.

Chinese nationals alleged claims for strict liability after they were injured and killed in a bus accident during a day trip from a hotel in Nevada to an attraction in Arizona while on a tour provided by a California tour distributor in a bus manufactured in Indiana, which manufacturer has a dealership in four western states including California. What body of law applies . . . after the California tour company and the Indiana manufacturer settle?  Tick tock . . . . Pencils down! The trial court applied Indiana law. The Court of Appeal reversed, noting that Indiana law “is substantially less favorable to plaintiffs than is California law,” and also stating: “Before discussing the specific issues in the case, we provide a brief overview of California conflicts of law. Then, we consider whether the trial court should have fully reconsidered the choice of law motion after [the manufacturer’s] settlement with plaintiffs. Concluding that it should have, we do not consider the propriety of the first choice of law ruling and instead consider de novo whether Indiana or California products liability law should apply to the action between the Chinese plaintiffs and the California defendant, [the California dealer for the manufacturer]. Considering the governmental interests at stake in this products liability case, we conclude that California has an interest in applying its laws, while Indiana does not. Therefore, the trial court erred in applying Indiana products liability law. Finally, we conclude that the error was prejudicial, in that it is reasonably probable that plaintiffs would have prevailed had California law been applied. We therefore reverse and remand for a new trial.” (Chen v. L.A. Truck Centers, LLC (Cal. App. 2nd Dist., Div. 8, Jan. 18, 2017) 7 Cal.App.5th 757.)

The latest:

The California Supreme Court limited its review to deciding whether the trial court should have reconsidered its initial ruling after a defendant settled out of the case. Reversing the judgment of the Court of Appeal, California’s high court concluded the trial court did not err by declining to reconsider its ruling after the settlement. (Chen v. L.A. Truck Centers, LLC (Cal., July 22, 2019) 2019 Cal. LEXIS 5225.)

$3.50 a Page.

In 2010, the Alameda County Board of Supervisors adopted an ordinance charging $3.50 per page for copies of official records from the Clerk-Recorder’s Office. Plaintiff filed a petition for writ of mandate pursuant to Code of Civil Procedure § 1085, arguing that the fee violates Government Code § 27366. The trial court granted the writ petition, and the county appealed. The Court of Appeal noted that Government Code § 27366 provides that the fee for copies of official records “shall be set by the board of supervisors in an amount necessary to recover the direct and indirect costs of providing the product or service or the cost of enforcing any regulation for which the fee or charge is levied.” Finding the county did not arbitrarily, capriciously, or otherwise abuse its discretion when it determined that charging $3.50 per page was necessary to recover its direct and indirect costs of making copies, the appellate court reversed the order granting the petition. (California Public Records Research, Inc. v. County of Alameda (Cal. App. 1st Dist., Div. 5, July 22, 2019) 2019 Cal. App. LEXIS 662.)

Court of Appeal Saves Statute from its Constitutional Deficiencies.

Health and Safety Code § 1418.8 sets forth procedures to follow when nursing home residents lack capacity to make their own health care decisions. A nonprofit entity that advocates for the rights of nursing home patients challenged the constitutionality of § 1418.8 by filing a petition for writ of mandate. The superior court granted the petition, finding the statute unconstitutional. The Court of Appeal reversed and remanded, stating: “We shall therefore reverse and remand with directions to enter a modified judgment requiring nursing homes utilizing section 1418.8 to adopt and adhere to additional procedures we have concluded are necessary to preserve its constitutionality.” The procedural requirements set out by the appellate court concern notice, opportunity to be heard, and the composition of an interdisciplinary team for decision-making. (California Advocates for Nursing Home Reform v. Smith (Cal. App. 1st Dist., Div. 4, July 22, 2019) 2019 Cal. App. LEXIS 658.)

Insurance Company Can’t Avoid Fraudulent Conveyance Action.

Plaintiff was injured when the motorcycle he was riding collided with a car. The car driver was insured by defendant insurance company, with a maximum liability limit of $15,000. Plaintiff offered to settle his personal injury claims against the driver for his policy limit, but the insurer did not respond to the offer. The claim was later tried to a jury, and plaintiff obtained a judgment against the driver for nearly one million dollars—which the trial court subsequently vacated, granting the insurer’s motion for new trial. Then, before retrial, the insurer paid the driver $75,000 to release any bad faith claim he had against the insurers for its failure to accept the early settlement offer. Plaintiff again prevailed in the second trial, this time obtaining a judgment in excess of one million dollars. Unable to collect that sum from the insolvent driver, plaintiff sued the insurer and alleged the release it procured from the driver was a fraudulent conveyance. The trial court sustained the insurer’s demurrer and dismissed the fraudulent conveyance suit. The Court of Appeal reversed, holding that plaintiff adequately alleged a violation of the Uniform Fraudulent Transfers Act (Civ. Code, § 3439 et seq.). (Potter v. Alliance United Ins. Co. (Cal. App. 2nd Dist., Div. 5, July 23, 2019) 2019 Cal. App. LEXIS 666.)

Steering the Difficult Course Between Free Expression and Civil Discourse.

Plaintiff is an unincorporated registered student organization (RSO) at the University of California, San Diego that publishes a newspaper featuring art and satirical writing. In 2015, plaintiff published an article satirizing the concept of “safe spaces” on campus, generating numerous complaints from students and administrators and prompting UCSD to publicly denounce the article’s offensive language. Two days later, the UCSD student government passed the Media Act, which eliminated RSO funding for all print media, including plaintiff’s newspaper. In response, plaintiff brought this action for declaratory and injunctive relief, alleging that the passage of the Media Act violated its First Amendment rights. Defendants moved to dismiss. The district court concluded that plaintiff’s lawsuit was barred by the Eleventh Amendment. Alternatively, it concluded that the Media Act did not violate the free press clause of the First Amendment because the act was content neutral, viewpoint neutral, and applied uniformly to all RSO’s. The district court also dismissed plaintiff’s action. Reversing, the Ninth Circuit Court of Appeals stated: “We conclude that the Eleventh Amendment does not bar plaintiffs’ suit. Because we further conclude that [plaintiff’s] complaint adequately states claims for violations of the Free Press Clause, the Free Speech Clause, and First Amendment retaliation, we vacate the district court’s order granting the second motion to dismiss.” (The Koala v. Khosla (9th Cir., July 24, 2019) 2019 U.S. App. LEXIS 22064.)

Yet Another Sexual Assault on Campus.

John Doe petitioned the superior court for a writ of mandate setting aside his expulsion from Occidental College after an outside adjudicator found he had sexually assaulted another student. The superior court denied the petition. On appeal, Doe argued he was denied a fair hearing and substantial evidence did not support the decision. Affirming, the Court of Appeal found that Doe failed to establish any procedural unfairness, and substantial evidence supported the adjudicator’s decision. (Doe v. Occidental College (Cal. App. 2nd Dist., Div. 3, July 2, 2019) 2019 Cal. App. LEXIS 669.)

Whether a Five-Year Dismissal is Voluntary or Mandatory Can Make a Difference.

In a case that had languished for years, defendants moved to dismiss the action under Code of Civil Procedure § 583.360. At the hearing on the motion, plaintiff orally moved to voluntarily dismiss the case. The trial court granted the oral motion and dismissed the case without prejudice. The Court of Appeal reversed, concluding that the trial court would have been required to dismiss the case under § 583.360 even if the motion had not yet been heard, and remanded the matter with instructions to allow defendants to seek attorney fees under a contractual fee clause. (Cole v. Hammond (Cal. App. 2nd Dist., Div. 4, July 24, 2019) 2019 Cal. App. LEXIS 673.)

Deaf Realtor Wants ASL Interpreter at Seminar Sessions.

A realtor trade association offers its members continuing education programs. Plaintiff, a realtor who is deaf, registered for a program and asked the association to provide an ASL interpreter. The association declined but offered to provide a sound amplifier. Plaintiff explained that an amplifier would not assist him, so the association refunded his registration fee. The next year, plaintiff registered for another course and again requested an ASL interpreter. The association again refused, noting that the course instructor could be available to answer questions at breaks and at lunchtime. Plaintiff sued the association under the Americans with Disabilities Act (ADA) and the Arizonans with Disabilities Act. The federal district court granted summary judgment for the association on the ground that the association had engaged in a dialogue with plaintiff and tried to reach some agreement regarding accommodations. The Ninth Circuit reversed, finding the association’s actions did not satisfy ADA requirements, and that “there is a genuine issue of material fact as to whether [the association] offered an auxiliary aid or service that would provide effective communication to [plaintiff].” (Tauscher v. Phoenix Bd. of Realtors (9th Cir., July 25, 2019) 2019 U.S. App. LEXIS 22180.)

Signatory to an Arbitration Agreement.

A nursing facility moved to compel arbitration in an action for elder abuse brought by a decedent’s husband, individually and as her successor in interest, and by their children. The husband had signed the decedent’s arbitration agreement. The trial court found the decedent’s claim for elder abuse and the husband’s individual claim for wrongful death were subject to arbitration, but the children’s claims were not. Affirming, the Court of Appeal stated: “Defendants did not establish that [the husband] signed the arbitration agreements as [decedent’s] agent. As a result, he could not bind the children to arbitrate their wrongful death claims.” Valentine v. Plum Healthcare Group, LLC (Cal. App. 3rd Dist., July 2, 2019) 2019 Cal. App. LEXIS 679.)

Trivial Defect.

Plaintiff sued a city for injuries he sustained after tripping and falling on an uneven sidewalk. “The sidewalk was vertically uneven between two concrete panels, and the height differential was 9/16 of an inch, three feet and one foot from the sidewalk’s right edge, and one and 7/32 inches (1.21875 inches), at the right edge, as plaintiff was walking when he fell.” The trial court granted summary judgment for the city on the ground the sidewalk defect was trivial as a matter of law. Affirming, the Court of Appeal concluded that “the City met its initial burden on its motion, and plaintiff did not present sufficient evidence to raise a triable issue of material fact.” (Huckey v. City of Temecula (Cal. App. 4th Dist., Div. 2, June 28, 2019) 2019 Cal. App. LEXIS 681.)

“Get your facts first, then you can distort them as you please,” Mark Twain.

Plaintiff publicly alleged that defendant drugged and raped her more than 30 years earlier. Defendant responded by issuing a demand letter and several press releases through his attorney, which expressed or implied that plaintiff was lying. Plaintiff sued defendant for defamation and related claims, which defendant moved to strike under Code of Civil Procedure § 425.16, the anti-SLAPP statute. The trial court granted the motion in part but the Court of Appeal reversed, concluding that none of plaintiff’s claims should be stricken . On remand, defendant filed a second anti-SLAPP motion to strike new claims asserted in an amended complaint. The trial court granted the motion in part, but refused to strike claims premised on two allegedly defamatory statements appearing in press releases issued by defendant’s attorney. On appeal, defendant argued that he was not directly or vicariously liable for his attorney’s statements and that the statements were his attorney’s nonactionable opinions and did not refer, directly or indirectly, to plaintiff. The Court of Appeal disagreed and affirmed. (Dickinson v. Cosby (Cal. App. 2nd Dist., Div. 8, July 26, 2019) 2019 Cal. App. LEXIS 686.)

Predominance Requirement in Class Action.

When plaintiff bought a new 2012 Nissan 370Z as a present for his son, he was unaware of what he alleges was a potentially catastrophic design defect hidden in the vehicle’s hydraulic clutch system. After the clutch purportedly malfunctioned and plaintiff spent more than $700 replacing it, he filed a putative class action asserting claims under state and federal warranty laws. The district court denied plaintiff’s motion for class certification, concluding he failed to satisfy the predominance requirement of rule 23(b)(3) of the Federal Rules of Civil Procedure due to what it viewed as an inappropriate measure of damages. The Ninth Circuit reversed, concluding that “following Comcast Corp. v. Behrend, 569 U.S. 27 (2013), Plaintiff’s proposed damages model is consistent with his theory of liability.” (Nguyen v. Nissan North America (9th Cir., July 26, 2019) 2019 U.S. App. LEXIS 22296.)

Ascertainability Requirement in Class Action.

This is a putative class action brought on behalf of retail purchasers of an inflatable outdoor pool sold in packaging that allegedly misled buyers about the pool’s size. The trial court denied a motion for class certification on the ground that the representative plaintiff had presented no evidence showing how individual class members could be identified at the appropriate time. The Court of Appeal affirmed, reasoning that such evidence was necessary to ensure proper notice to the class, and that without such evidence the trial court could properly conclude that plaintiff had not satisfied the ascertainability requirement for class certification. Reversing, the California Supreme Court concluded that “the trial court erred in demanding that plaintiff offer such evidence to satisfy the ascertainability requirement. Plaintiff’s proposed class definition articulates an ascertainable class. . . . [T]he ascertainability requirement does not incorporate the additional evidentiary burden that the courts below would have imposed.” (Noel v. Thrifty Payless, Inc. (Cal., July 29, 2019) 2019 Cal. LEXIS 5696.)

First Responders to Remain in Action.

Responders provided lifesaving medical services to an infant who later died. The coroner’s report listed the cause of death as “non-accidental trauma in a child” and noted the infant “was possibly shaken.” The infant’s father was charged with four felonies and entered a no contest plea to felony child abuse. The infant’s parents subsequently sued the first responders, asserting claims for medical malpractice, professional negligence, and intentional infliction of emotional distress. The county, which had contracted with a city to provide firefighting services for the county, moved for summary adjudication of the negligence claims against its firefighters under Government Code § 850.6, which provides public entities receiving “fire protection or firefighting services” from another public entity with immunity from liability “for any act or omission of the public entity [or its employees] providing the service.” The trial court granted the motion, but the Court of Appeal reversed, concluding that “this provision, which applies to ‘fire protection or firefighting’ services . . . does not apply to the emergency medical services provided by the firefighters in this case.” (Wilson v. County of San Joaquin (Cal. App. 3rd Dist., July 30, 2019) 2019 Cal. App. LEXIS 694.)

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