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A monthly publication of the Litigation Section of the California Lawyers Association.

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Julia C. Shear Kushner
  • Editors, Dean Bochner, Jonathan Grossman, Jennifer Hansen, David Williams, Ryan Wu
“Prisons don’t rehabilitate, they don’t punish, they don’t protect, so what the hell do they do?” Jerry Brown.

A prisoner in his sixties with numerous chronic health conditions made six requests to be placed into protective custody, insisting that he was at risk of harm because he had received threats from the Border Brothers, a gang active throughout Arizona’s prisons. All six times, prison authorities denied his requests for protective custody. After his sixth request was denied, two other prisoners physically assaulted him in the prison yard, at least one of whom was a suspected member of the Border Brothers. The prisoner sued under 42 U.S.C. § 1983, alleging that six employees of the Arizona Department of Corrections violated the Eighth Amendment by failing to protect him from violence by the other prisoners. After a four-day trial, the district court instructed the jury to “give deference to prison officials in the adoption and execution of policies and practices that, in their judgment, are needed to preserve discipline and to maintain internal security in a prison.” The jury returned a defense verdict. Reversing and remanding the case for a new trial, the Ninth Circuit found the trial judge’s instruction was error and that it might have affected the jury’s verdict, noting that “[b]ecause Defendants persistently denied [plaintiff’s] pleas for protection despite evidence that he faced a serious threat, the jury might well have returned a verdict in his favor if not for the deference instruction.” (Fierro v. Smith (9th Cir., July 5, 2022) 39 F.4th 640.)

“Old Spice, If Your Grandfather Hadn’t Worn It, You Wouldn’t Exist,” product tagline.

A jury awarded compensatory damages of $448,761.10 to a plaintiff who was diagnosed with mesothelioma, caused in part by his use of Old Spice talcum powder for many years, ending in 1980. Defendant supplied the talc in Old Spice that contained asbestos fibers. On appeal, defendant did not contest the jury’s finding that it was negligent and otherwise responsible for plaintiff’s harm; defendant argued only that the evidence was insufficient to support the jury’s award of an additional $3 million in punitive damages. The Court of Appeal reversed to the extent the award included punitive damages, finding plaintiff failed to establish that any officer, director, or managing agent acted with the malice, oppression, or fraud necessary to support an award of punitive damages. (McNeal v. Whittaker, Clark & Daniels, Inc. (Cal. App. 2nd Dist., Div. 8, July 5, 2022) 80 Cal.App.5th 853.)

Juvenile Dependency Court Erred in Terminating Parental Rights.

A juvenile dependency court terminated the parental rights of the parents of a four-year-old, who must be fed through a feeding tube due to a serious physical condition, on the ground that the parents lacked the ability to care for the child. The juvenile court noted that the bonding study indicated that there was not really a bond between the parents and the child. On appeal, the parents asserted the beneficial relationship exception. Reversing, the Court of Appeal stated: “[W]e find there is no substantial evidence presented to support a determination that the parents and [child] lack a positive, emotional relationship with each other. We arrive at this conclusion gingerly, as we are not in the business of reweighing the evidence or substituting our own findings for those of the trial court. We simply hold that this report, which focuses on the necessity of caregivers savvy enough to provide for [the child’s] necessary medical, behavioral, and social interventions, does not provide substantial evidence to support a ruling that no emotional bond exists between parents and [child].” (In re M.G. (Cal. App. 2nd Dist., Div. 8, July 1, 2022) 80 Cal.App.5th 836.)

Surgeon Was Not an Agent of the Hospital.

A doctor who performed a total hysterectomy on plaintiff punctured her bowel. She underwent a second surgery and a colostomy. Before the hysterectomy, plaintiff signed a form that stated: “Physicians are not employees or agents of the hospital.” Plaintiff sued the hospital and the doctor for medical negligence. The hospital moved for summary judgment, providing evidence that no hospital employees were negligent. Opposing the motion, plaintiff presented evidence of the doctor’s negligence. The trial court granted summary judgment for the hospital. Affirming, the Court of Appeal stated: “The trial court correctly determined the undisputed facts established, as a matter of law, that [plaintiff] reasonably should have known that [the doctor] was not [the hospital’s] agent.” (Magallanes v. Doctors Medical Center of Modesto (Cal. App. 5th Dist., July 5, 2022) 80 Cal.App.5th 914.)

Big Brother Prosecutes Retirees for Their Hobbyist Speaking Engagements.

Two retirees, one a 78-year-old retired Republican state senator, operate a website that tracks the voting records of Republican state legislators in Montana. Several local Republican groups in Montana took an interest in the website and invited the two retirees to present their findings. Based on travel expenses they incurred in giving these presentations—including gas, meals at McDonald’s, and a night at a La Quinta Inn—Montana’s Commissioner of Political Practices determined that the two men had formed a “political committee” under Montana law. The commissioner concluded they were subject to a civil fine and civil prosecution because they had neither registered their alleged political committee with the state nor complied with numerous reporting obligations. Contending that Montana law is impermissibly vague because they lacked fair notice that their conduct would not be treated as “de minimis,” the two men sued Montana for violation of their civil rights under 42 U.S.C. § 1983. The district court granted summary judgment for Montana. Reversing, the Ninth Circuit held “that Rule 44.11.603 is unconstitutionally vague as applied to [plaintiffs]. [They] were engaged in core political speech that lies at the heart of the First Amendment. The protections against impermissibly vague laws, rooted here in the Due Process Clause of the Fourteenth Amendment, are at their maximum in this most sensitive area, in which insufficiently defined legal regimes can discourage valuable speech and invite unbalanced government regulation of less popular views. In this case, Montana law did not give [plaintiffs] fair notice that the travel expenses associated with their hobbyist speaking engagements transformed them into a two-person political committee subject to demanding disclosure and reporting requirements.” (Butcher v. Knudsen (9th Cir., July 6, 2022) 38 F.4th 1163.)

No Duty to Disclose Negative Facts.

The district court dismissed a securities fraud class action under sections 10(b), 20(a), and 20A of the Securities Exchange Act of 1934 and Rule 10b-5. On appeal, the Ninth Circuit rejected plaintiff’s argument that because defendant had touted positive facts about its deal, it had a duty to disclose negative facts as well. (Macomb County Employees’ Retirement System v. Align Technology, Inc. (9th Cir., July 7, 2022) 39 F.4th 1092.)

No Federal Jurisdiction.

Plaintiffs here alleged that defendant oil and gas companies knew about climate change, understood the harms energy exploration and extraction inflicted on the environment, and concealed those harms from the public. Plaintiffs filed in state court and defendants removed to federal court. The district court remanded the matter back to state court. Affirming, the Ninth Circuit stated: “This case is about whether oil and gas companies misled the public about dangers from fossil fuels. It is not about companies that acted under federal officers, conducted activities on federal enclaves, or operated on the [Outer Continental Shelf]. Thus, we decline to extend federal jurisdiction.” (City & County of Honolulu v. Sunoco LP (9th Cir., July 7, 2022) 39 F.4th 1101.)

ERISA-Compliant Pension Plan That Is Not Assignable Is Not Subject to California’s Enforcement of Judgments Laws.

After the trial court ordered liquidation of assets in an individual retirement account and a profit-sharing plan, the debtor filed a motion for reconsideration, arguing for the first time that the profit-sharing plan was protected from levy because it qualified as a plan under the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.; ERISA). The trial court denied the motion but informed the parties that, under its inherent authority, it would reconsider its prior order regarding the distribution of the profit-sharing plan only—not the individual retirement account—because the court previously had not considered the implications of ERISA. The court reversed its prior decision and concluded the profit-sharing plan was exempt from levy due to preemption by ERISA. Affirming, the Court of Appeal held that “the trial court timely exercised its inherent authority to reconsider its order regarding the profit-sharing plan. We further hold, as a matter of first impression, that the profit-sharing plan here was automatically exempt from levy under both ERISA and California law because (1) it is an ERISA-compliant pension plan which is not assignable as a matter of federal law (29 U.S.C. § 1056(d)(1)); and (2) under California’s Enforcement of Judgments Law ([Code Civ. Proc.,] § 680.010 et seq.), property that is not assignable is not subject to California’s enforcement of judgment procedures and is thus automatically exempt from levy. (See §§ 695.030, 704.210.)” (Coastline JX Holdings LLC v. Bennett (Cal. App. 4th Dist., Div. 3, July 7, 2022) 80 Cal.App.5th 985.)

California Jurisdiction over Company Incorporated in Delaware with Principal Place of Business in Oregon.

Oklahoma accident: Plaintiff truck driver was injured when the truck was in an accident in Oklahoma while he was driving cross-country. Plaintiff filed an action against the manufacturer and others in California state court.

Oregon and Delaware manufacturer: Defendant Daimler Trucks of North America manufactured the truck. Its principal place of business is in Portland, Oregon, and it’s a Delaware corporation. It advertises its trucks across the country and directs advertising to California. Between 4,000 to 5,000 trucks were sold in California each year from 2014 to 2020.

Nebraska owner: Daimler sold the truck to Werner Enterprises who took possession of the truck in Georgia, but is based in Nebraska with a hub in Fontana, California.

California motion to quash: Daimler filed a motion to quash for lack of personal jurisdiction. The trial court denied the motion, finding that it could exercise specific jurisdiction over Daimler.

The instant petition for a writ of mandate: Denying Daimler’s writ petition, the Court of Appeal stated: “Daimler [h]as [p]urposefully [a]vailed [i]tself of [f]orum [b]enefits [¶] . . . [¶] . . . Daimler’s activities supporting the sale and service of the [truck] in this state, and the other facts that we have discussed, demonstrate that [plaintiff’s] claims ‘relate to’ those very California activities. [¶] . . . Assertion of [j]urisdiction [c]omports with [f]air [p]lay and [s]ubstantial [j]ustice.” (Daimler Trucks North America LLC v. Superior Court (Cal. App. 2nd Dist., Div. 5, July 7, 2022) 80 Cal.App.5th 946.)

Right to a Jury Trial in Federal Court.

Plaintiff appealed the district court’s ruling granting defendant’s motion to withdraw its demand for a jury trial. Plaintiff argued that Federal Rules of Civil Procedure 38 and 39 generally allow a party to rely on another party’s jury demand without having to file its own demand. Affirming, the Ninth Circuit stated that “the application of Rules 38 and 39 here did not entitle [plaintiff] to a jury trial after [defendant] withdrew its demand because the parties’ lease included a waiver of the tenant’s right to a jury trial in proceedings initiated by the landlord.” (Ross Dress for Less, Inc. v. Makarios-Oregon, LLC (9th Cir., July 8, 2022) 39 F.4th 1113.)

No Reasonable Expectation of Privacy While on E-Scooter.

Faced with a near-overnight invasion of motorized electric scooters (e-scooters), which cluttered sidewalks and interfered with street access, the City of Los Angeles adopted a permitting program and required e-scooter companies to disclose real-time location data called Mobility Data Specification (MDS) for every device. In this action filed in federal court, an e-scooter user claimed that the location disclosure requirement violates the Fourth Amendment and California law. The district court dismissed the complaint alleging violation of the California Electronic Communications Privacy Act (Pen. Code, § 1546 et seq.; CalECPA), for failure to state a claim. Affirming, the Ninth Circuit stated that the district court “correctly concluded that “because [plaintiff] has no reasonable expectation of privacy over the MDS location data, no additional facts could possibly have cured the deficiency with his constitutional claims. And, because the court rightly found that the CalECPA does not create a private right of action, dismissal of the statutory claim was also not error.” (Sanchez v. Los Angeles Department of Transportation (9th Cir., July 8, 2022) 39 F.4th 548.)

Questions Sent to California Supreme Court About Compensation for Workers Required to Wait in Lines to Enter and Exit Work Site.

The owner of a power facility retained a contractor. Plaintiffs are employees of the contractor. Workers commuted to the site via personal vehicles, carpools, and buses. The facility had one entrance, requiring workers to first pass a guard shack at the entrance, and then to stop at the security gate several miles down the road, where a guard scanned each worker’s badge and sometimes peered inside vehicles or truck beds. The same badging-out process at the security gate was used to exit the site. Since many workers exited the Project around the same time each day, lines at the security gate often were five to twenty minutes long. Plaintiffs sued in federal court, alleging they were due compensation for the time spent waiting in these lines. The district court granted summary judgment for the employer. The Ninth Circuit certified three questions to the California Supreme Court:

(1) Is time spent on an employer’s premises in a personal vehicle and waiting to scan an identification badge, have security guards peer into the vehicle, and then exit a security gate compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 16?

(2) Is time spent on the employer’s premises in a personal vehicle, driving between the security gate and the employee parking lots, while subject to certain rules from the employer, compensable as “hours worked” or as “employer-mandated travel” within the meaning of California Industrial Welfare Commission Wage Order No. 16?

(3) Is time spent on the employer’s premises, when workers are prohibited from leaving but not required to engage in employer-mandated activities, compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 16, or under California Labor Code Section 1194, when that time was designated as an unpaid “meal period” under a qualifying collective bargaining agreement?

The request was docketed in Case No. S275431, but the Supreme Court has not yet decided whether it will answer the questions. (Huerta v. CSI Electrical Contractors, Inc. (9th Cir., July 8, 2022) 39 F.4th 1176.

Posting Emergency Room Fees.

Plaintiff alleged a violation of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.; CLRA), based on defendant’s failure to disclose, prior to providing emergency medical treatment, that its bill for emergency services would include an evaluation and management services fee (EMS Fee), by visibly posting signage in or around defendant’s emergency rooms or at its registration windows/desks. Defendant publishes its EMS fee on its website. However, Gray v. Dignity Health (2021) 70 Cal.App.5th 225, recently held that identical allegations did not state a cause of action under the CLRA; thus, the trial court sustained defendant’s demurrer without leave to amend. Affirming, the Court of Appeal stated: “We agree defendant does not have a duty under the CLRA to disclose the EMS Fee by posting additional signage in its emergency rooms.” (Saini v. Sutter Health (Cal. App. 1st Dist., Div. 4, July 8, 2022) 80 Cal.App.5th 1054.)

Obtaining Police Records Sans Pitchess Motion.

A school district has its own police department, and it received several requests for information involving events at the school or by its police officers from news agencies. One of the district’s former officers petitioned the superior court for a writ of mandate restraining release of the records containing the requested information. The trial court issued the writ. The Court of Appeal noted that prior to January 1, 2019, access to such records was only permitted through a motion brought pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, and Evidence Code §§ 1043 and 1045. But in 2018, the Legislature amended Evidence Code §§ 832.7 and 832.8 to allow disclosure of such records pursuant to a California Public Records Act (Gov. Code, § 6250 et seq.; CPRA) request under specified circumstances—including records of sustained administrative findings of various types of conduct. In 2021, the Legislature again amended § 832.7, to also permit disclosure of records when officers resign before the completion of an investigation. Affirming as to records that predated the 2021 amendment, the appeals court stated: “We conclude the subject records are not subject to disclosure under the 2018 amendments to Penal Code section 832.7 and 832.8.” However, the Court of Appeal modified the trial court’s injunction, stating: “Specifically, the judgment and writ should be modified to limit the injunction to CPRA requests received prior to January 1, 2022, the effective date of the 2021 amendments. Whether future CPRA requests, if any, may reach the subject records is an issue upon which we express no opinion. The existing record is insufficient to reach a determination with respect to any such future CPRA requests.” (Wyatt v. Kern High School District (Cal. App. 5th Dist., July 11, 2022) 80 Cal.App.5th 1116.)

Previously Reported: Foreign Judgments.

A judgment creditor sought to enforce an “astreinte” against the judgment debtor in California under the California Uniform Foreign-Court Monetary Judgment Recognition Act (Code Civ. Proc., § 1713 et seq.) in a federal district court. The astreinte is a French legal device that imposes money damages for the continued use of copyrighted photographs—here, photographs of Pablo Picasso’s works in a book of photography.  The district court judge determined the astreinte was not awarded to compensate the plaintiff, but to compel the defendant to comply with the judgment, and, therefore, was not cognizable under the Act. Reversing, the Ninth Circuit stated: “We hold that the astreinte awarded by the French courts to de Fontbrune falls within the Uniform Recognition Act as a judgment that ‘grants . . . a sum of money.’[Code Civ. Proc., § 1715(a)(1)]. In this case, the astreinte was not a ‘fine or other penalty’ for purposes of the Act, id. § 1715(b)(2), and accordingly the district court erred in concluding otherwise.” (de Fontbrune v. Wofsy, (9th Cir., 2016) 838 F.3d 992.) 

The latest:

Plaintiff sought recognition of the astreinte in a federal district court. The district court judge granted summary judgment for defendant based on defenses under California’s Uniform Foreign-Country Money Judgment Recognition Act (Civ. Proc. Code, §§ 1713–1725). Concluding the lower court erred in granting summary judgment, the Ninth Circuit stated: “Wofsy was not entitled to summary judgment based on the public policy defense. No other ground for nonrecognition at issue in this appeal supplies an alternative basis for affirming the judgment below.” (de Fontbrune v. Wofsy (9th Cir., July 13, 2022) 39 F.4th 1214.)

Telephone Conversation with a Computer.

Plaintiff telemarketing company sued the Federal Trade Commission over its prohibition of the use of soundboard technology, a product described as allowing a live call center agent to simulate a natural conversation by dispatching prerecorded messages in response to comments by the person who was called. A district court dismissed plaintiffs’ complaint without prejudice for want of subject matter jurisdiction based on plaintiffs’ lack of standing. Affirming, the Ninth Circuit stated: “We affirm the district court’s dismissal for lack of subject matter jurisdiction based on Plaintiffs’ failure to adequately plead Article III standing.” (United Data Services, LLC v. Federal Trade Commission (9th. Cir., July 13, 2022) 39 F.4th 1200.)

Court Erred in Granting Demurrer in Business’s Contention COVID-19 Caused Covered Losses.

The owners of a hotel and adjacent restaurant sued their insurance company for losses they sustained as a result of COVID-19. The trial court sustained the insurance company’s demurrer without leave to amend, ruling the COVID-19 virus cannot cause direct physical loss or damage to property for purposes of insurance coverage. Reversing, the Court of Appeal stated: “That might be the correct outcome following a trial or even a motion for summary judgment. It was error at this nascent phase of the case.” (Marina Pacific Hotel and Suites, LLC v. Fireman’s Fund Insurance Company (Cal. App. 2nd Dist., Div. 7, July 13, 2022) 81 Cal.App.5th 96.)

Advocacy Organization and Anti-SLAPP.

Members of defendant’s animal rights organization climbed over a fence to a horse racing track and lit incendiary devices that sent purple smoke into the air. They remained on the track for several hours until police removed them. The plaintiff racetrack sued for trespass and intentional interference with prospective economic relations. Defendant filed an anti-SLAPP motion (Code Civ. Proc.,§ 425.16) which the trial court denied. Affirming, the Court of Appeal stated: “[W]e hold that claims alleging that an advocacy organization is vicariously liable for a third party’s illegal conduct may be subject to a demurrer or other summary challenge, but they cannot be stricken under the anti-SLAPP statute unless the organization’s alleged liability is premised on constitutionally protected activity.” (Golden Gate Land Holdings LLC v. Direct Action Everywhere (Cal. App. 1st Dist., July 13, 2022) 81 Cal.App.5th 82.)

Discovery Rule vis-à-vis Statute of Limitations for Copyright Infringement Alive and Well.

The Copyright Act (17 U.S.C. § 101 et seq.) provides that a civil action for copyright infringement is timely so long as it is “commenced within three years after the claim accrued.” (17 U.S.C. § 507[HJ1] (b)). Generally, the claim “accrues” when the infringement or violation of one of the copyright holder’s exclusive rights occurs, known as the “incident of injury rule.” An exception to that infringement rule has developed, known as the “discovery rule.” A claim alternatively accrues when the copyright holder knows or reasonably should know that an infringement occurred. In 2014, the U.S. Supreme Court addressed the interplay between § 507(b) and the doctrine of laches, holding that laches does not bar relief on a copyright infringement claim brought within § 507(b)’s three-year limitations period. (Petrella v. Metro-Goldwyn-Mayer, Inc. (2014) 572 U.S. 663, 667–668.) Since then, defendants accused of copyright infringement have seized upon certain language in Petrella to argue that the court also did away with the discovery rule. Here, there was a 2015 agreement that plaintiff had the exclusive right to exhibit certain films. In 2019, one of plaintiff’s employees saw one of those film exhibited on Amazon Prime Video, and this action was brought within three years of that discovery. The district court denied defendant’s motion to dismiss. Affirming, the Ninth Circuit stated: “Because Starz brought its claim within three years after its claim accrued, Starz is not barred from seeking damages for all acts of infringement.” (Starz Entertainment, LLC v. MGM Domestic Television (9th Cir., July 14, 2022) 39 F.4th 1236.)

Insureds Precluded from Relitigating Issue in an Action Against a Second Insurance Company.

In another action, a trust sued the current plaintiffs regarding an easement to a parcel of land owned by the current plaintiffs. The current plaintiffs tendered defense of the underlying action to another insurance company, not a party here, and that insurer declined to cover. While an appeal to that earlier declination of coverage pended in federal court, the current plaintiffs tendered defense to the current defendant insurer, and that insurer also declined coverage. The current action was filed in state court; the trial court granted summary judgment for the insurance company. Affirming, the Court of Appeal stated: “We shall affirm the judgment, not on the ground adopted by the trial court, but on the ground that the federal court judgment precludes relitigation of whether the [Sonoma Land Trust] action arose from an ‘accident’ within the meaning of the two insurers’ policies.” (Thompson v. Crestbrook Insurance Company (Cal. App. 1st Dist., Div. 4, July 13[HJ1] , 2022) 81 Cal.App.5th 115.)

The Case of the Vanished Diamonds.

Plaintiff took 45 vivid yellow diamonds worth $4 million to Sotheby’s for auction on consignment. Sotheby’s released the diamonds to a stranger who said he was picking them up for the owner, and the diamonds disappeared. Sotheby’s kept no written records about its release of the diamonds. In an action for breach of contract, negligence, and conversion against Sotheby’s, the trial court sustained Sotheby’s demurrer without leave to amend. Affirming in part and reversing in part, the Court of Appeal stated: “[Plaintiff] had stated a proper claim for breach of contract, so it was wrong to sustain the demurrer to this count. [¶] . . . [¶] As for [plaintiff’s] negligence claim, however, the trial court’s ruling was right. [¶] The economic loss rule governs. . . . [¶] . . . [¶] Regarding conversion, [plaintiff] forfeited this argument by omitting legal authorities from its opening papers showing the trial court erred.” (M&L Financial, Inc. v. Sotheby’s, Inc. (Cal. App. 2nd Dist., Div. 8, July 14, 2022) 81 Cal.App.5th 173.)

Trial Court Erred in Expunging Lis Pendens.

Plaintiffs allege that defendant lured them into investing $1.5 million in an unidentified technology company by befriending them, becoming familiar with the real properties they owned, and then promising them returns far exceeding those that they were receiving on their rental properties. They allege defendant advised them to immediately invest any liquid assets and to also sell their rental properties so that they could invest. Relying on defendant’s advice and representations, plaintiffs first provided defendant with $1.5 million and then sold 10 of their rental properties to a purported cash buyer. Defendant acted as plaintiffs’ agent for each sale of real estate. After the sale of each property closed, plaintiffs followed defendant’s instructions and paid him the proceeds for investment in the technology company. Plaintiffs allege that defendant actually kept plaintiffs’ properties for himself and did not invest in a technology company. Plaintiffs brought this action, alleging numerous causes of action. Plaintiffs recorded a notice of lis pendens for each of the 10 rental properties. After concluding plaintiffs’ claim of constructive trust was not a real property claim, the trial court expunged the lis pendens. Issuing a peremptory writ of mandate, the Court of Appeal stated: “Because constructive trusts arise in a wide variety of factual circumstances, courts should decide these cases on a case-by-case basis. To the extent any cases within the Urez [Corp. v. Superior Court (1987) 190 Cal.App.3d 1141,] line can be read as holding that a constructive trust claim can never constitute a real property claim under section 405.4, we respectfully disagree.” (Shoker v. Superior Court of Alameda County (Cal. App. 1st Dist., Div. 5, July 15, 2022) 81 Cal.App.5th 271.)

Because Defendant’s Work Involves Interstate Commerce, the FAA Applies, and the Trial Court Erred in Denying Arbitration.

Defendant terminated plaintiff’s employment as a driver for California Transit. Previously, plaintiff had agreed to arbitrate all claims against defendant but sued defendant in state court. When defendant moved to arbitrate, the trial court denied the motion, ruling the Federal Arbitration Act (9 U.S.C. § 1 et seq.; FAA) did not apply because the agreement did not involve interstate commerce, and that under the California Supreme Court’s decision in Gentry v. Superior Court (2007) 42 Cal.4th 443, plaintiff’s waiver of his right to bring a class action was unenforceable. Reversing, the Court of Appeal stated: “The California Transit defendants appeal, contending the FAA applies to the arbitration agreement. They are correct. Because the paratransit services California Transit hired [plaintiff] to provide involve interstate commerce for purposes of the FAA, the FAA applies to the arbitration agreement and preempts the Gentry rule that certain class action waivers in employment arbitration agreements are unenforceable.” (Evenskaas v. California Transit, Inc., (Cal. App. 2nd Dist., Div. 7, July 15, 2022) 81 Cal.App.5th 285.)

Dissatisfied Litigant

Dissatisfied with how a superior court judge presided over his case, a litigant complained to both the state Commission on Judicial Performance and the state Department of Justice. Dissatisfied with how his complaints were handled, the litigant sued both entities, alleging the commission and attorney general systematically failed to discharge their ostensible duties to protect the public from “judge crime.” After twice giving plaintiff leave to amend his pleadings, the trial court sustained defendants’ demurrer without leave to amend. Affirming, the Court of Appeal stated: “The ruling makes clear that the trial court considered the allegations but found them to be ‘conclusory and insufficient.’ [Plaintiff] does not address the trial court’s reasoning (other than to say it was wrong) and does not attempt to show the allegations of fraud, collusion, and ultra vires acts were sufficient. We decline to make such arguments for him.” (Chodosh v. Commission on Judicial Performance (Cal. App. 3rd Dist., July 15, 2022) 81 Cal.App.5th 248.)

Pretrial Attachment.

Plaintiff and defendant accused each other of financial elder abuse of decedent. The primary question raised was whether the prospect of punitive recovery on a financial elder abuse claim—in the form of exemplary damages or statutory penalties—may be secured by the extraordinary remedy of pretrial attachment. The Court of Appeal answered “no,” explaining: “A financial elder abuse claimant may obtain an attachment for potential compensatory damages and an award of attorney fees and costs associated with those damages, but only if the request for it complies with all applicable provisions of the statutory scheme governing pretrial attachments . . . (Code Civ. Proc., § 481.010 et seq.). We conclude that [plaintiff’s] attachment application did not comply with four provisions of the Attachment Law.” Plaintiff “failed to support her prayer for compensatory damages with competent evidence. (Code Civ. Proc., § 482.040.) And to the extent she sought an attachment for prospective recovery of punitive damages and statutory penalties in addition to compensatory damages, her attachment request also failed to comply with some or all of the attachable amount [citation], attachable claim [citation], and claimed indebtedness [citation], requirements.” (Royals v. Lu (Cal. App. 1st. Dist., Div. 4, July 18, 2022) 81 Cal.App.5th 328.)

Summary Judgment Reversed in PAGA Action.

Plaintiff worked as a sales associate for defendant auto parts store. Filing suit under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2699 et seq.; PAGA), she asserted defendant failed to provide suitable seating to employees at the cashier and parts counter workstations, as to which some or all of the work required could be performed while sitting. In its successful motion for summary judgment, defendant provided evidence there were two available chairs for workers in plaintiff’s position, located just outside the manager’s office. In opposition to the motion, plaintiff provided evidence that no one told her the chairs were available for use at the front counter workstations. Reversing, the Court of Appeal stated: “We conclude that where an employer has not expressly advised its employees that they may use a seat during their work and has not provided a seat at a workstation, the inquiry as to whether an employer has ‘provided’ suitable seating may be fact-intensive and may involve a multitude of job-and workplace-specific factors. Accordingly, resolution of the issue at the summary judgment stage may be inappropriate, as it was here. Because the undisputed facts create a triable issue of material fact as to whether [defendant] ‘provided’ suitable seating to its customer service employees at the front of the store by placing seats at other workstations in a separate area of the store, we conclude the court erred in granting the motion for summary judgment.” (Meda v. Autozone, Inc. (Cal. App. 2nd Dist., Div. 3, July 19, 2022) 81 Cal.App.5th 366.)

Summary Judgment Reversed in 42 U.S.C. § 1983 Excessive Force Claim.

Plaintiff sued a county under the Civil Rights Act (42 U.S.C. § 1983) for alleged excessive force by a police officer. The district court granted summary judgment for defendants, holding that plaintiff’s claim was barred by Heck v. Humphrey (1994) 512 U.S. 477, because plaintiff was convicted of willfully resisting, delaying, or obstructing the deputy during the same interaction. Under Heck, a § 1983 action may not proceed if its success would “necessarily require the plaintiff to prove the unlawfulness of his conviction.” The Ninth Circuit, sitting en banc after a divided panel affirmed the lower court’s judgment, reversed because there were four possible events that could have resulted in plaintiff’s previous conviction for resisting the officer. The appeals court stated, “because the record does not show that Lemos’s section 1983 action necessarily rests on the same event as her criminal conviction, success in the former would not necessarily imply the invalidity of the latter.” (Lemos v. County of Sonoma (9th Cir., July 19, 2022) 40 F.4th 1002.)

Advocate Witness Rule.

An attorney and client reached a written retainer agreement wherein the client, the plaintiff, acknowledged the attorney would likely have to testify at trial. The attorney represented the client in the matter for four years. Two months before trial, the defendant moved to disqualify the attorney under California’s advocate-witness rule, Rules of Professional Conduct, rule 3.7. The trial court granted the motion to disqualify. Reversing, the Court of Appeal stated: “We conclude the court abused its discretion in disqualifying Boone from all phases of the litigation because it failed to apply the proper legal standards, viz., Rule 3.7’s informed-consent exception and limitation to trial.” (Lopez v. Lopez (Cal. App. 2nd Dist., Div. 4, July 20, 2022) 2022 WL 2825854.)

Statute of Limitations in Legal Malpractice Action.

There is a one year statute of limitations for a legal malpractice action. (Code Civ. Proc., § 340.6.) The chronology:

December 3 or 17, 2014: Plaintiff discharged the attorney.

December 23, 2014: Attorney and client signed a substitution of attorney.

December 30, 2014: Attorney filed a substitution of attorney.

December 15, 2015: Legal malpractice action filed. 

December 2017: Attorney died.

Thereafter, the attorney’s estate’s motion for summary judgment was granted by the trial court, after the court concluded the attorney’s representation ended when plaintiff discharged the attorney. The Court of Appeal reversed, concluding there was a triable issue of fact when the attorney’s representation ended. (Wang v. Nesse (Cal. App. 2nd Dist., Div. 4, July 20, 2022) 2022 WL 2825854.)

A Licensed Marriage and Family Therapist Is a “Qualified Mental Health Expert” for Purposes of Referrals for LPS Conservatorships.

This case was issued by the appellate division of the superior court. The trial court ordered a criminal defendant who was charged with misdemeanors to be evaluated by a psychologist for mental competency pursuant to Penal Code § 1368 et seq. The evaluator opined the defendant was incompetent to stand trial. Thereafter, the mental health treatment court found the defendant was incompetent and not suitable for diversion under Penal Code § 1001.36(b)(1)(D). The treatment court referred the matter to petitioner for an LPS conservatorship based on the opinion of a utilization review specialist for the County Department of Behavioral Health, who is a licensed marriage and family therapist (LMFT). The defendant argued that an LMFT was not a “qualified mental health expert” for the purpose of Penal Code § 1370.01 referrals for conservatorship proceedings because an LMFT was not qualified to evaluate a person for an LPS commitment in non-criminal contexts. The trial court rejected the argument, finding an LMFT was a qualified expert. The defendant petitioned the appellate division for a petition of writ of mandate. Denying the petition, the court stated: “We believe petitioner’s interpretation of a qualified mental health expert is contrary to the statute’s legislative intent because it requires a treatment court to go outside ‘existing tools’ to find and appoint a ‘qualified mental health expert,’ after incompetency has already been determined based on the opinion of a ‘psychiatrist, licensed psychologist, or any other expert the court [has deemed] appropriate.’ (Pen. Code, § 1369, subd. (a).)” (Fresno County Public Guardian v. Superior Court of Fresno County (Cal. App. Div., Fresno Cnty., May 5, 2022) 2022 WL 2827471.)

“Copyright cases concerning alleged unlawful activities purposely directed toward the United States are more amenable to suit in the United States [than in Vietnam],” Ninth Circuit Court of Appeals.

Plaintiff is a California corporation that produces and distributes Vietnamese music and entertainment. Plaintiff owns copyrights to more than 12,000 songs and 600 original programs. Defendant is a Vietnamese corporation that makes copyrighted music available for download worldwide. Plaintiff sued defendant for copyright infringement. Defendant filed a motion to dismiss, arguing (1) a lack of personal jurisdiction; (2) forum non conveniens; and (3) failure to state a claim. The district court granted the motion, finding there was no specific personal jurisdiction over defendant in California. The district court found that plaintiff failed to meet the first prong of the Ninth Circuit’s specific personal jurisdiction test without addressing the forum non conveniens and failure to state a claim arguments. Nor did the district court address the issue of long-arm jurisdiction over defendant under Rule 4(k)(2) of the Federal Rules of Civil Procedure. Reversing, the Ninth Circuit stated: “The Court finds that venue in this case is not proper in Vietnam. Copyright cases concerning alleged unlawful activities purposely directed toward the United States are more amenable to suit in the United States . . . .” (Lang Van, Inc. v. VNG Corp. (9th Cir., July 21, 2022) 40 F.4th 1034.)

What a Defendant in Default May Do vis-à-vis a Default Judgment.

The superior court entered defendants’ default. After the prove-up, the trial court entered a default judgment awarding plaintiff a total of $12,023,067.10. Defendants filed a motion for “new trial” (or, more precisely, in this setting, a new judgment hearing) premised on several grounds. The trial court partially denied and partially granted defendants’ motion. Thereafter, the trial court entered an amended judgment against defendants—for a total of $7,066,579.10. The Court of Appeal reversed, and the matter was heard by the California Supreme Court. The issues before California’s highest court were: (1) whether a party in default has standing to file a motion for a “new trial” asserting legal error relating to calculation of damages; and (2) whether a trial court may award treble damages and attorney’s fees under Penal Code § 496, subdivision (c), in a case involving, not trafficking of stolen goods, but instead, fraudulent diversion of a partnership’s cash distributions. Affirming in part and reversing in part the judgment of the appeals court, the California Supreme Court stated: “The Court of Appeal below answered ‘yes,’ and ‘no,’ respectively. We answer yes to both questions — and hence affirm the appellate court’s judgment in the first respect, and reverse it in the second. (Siry Inv., L.P. v. Farkhondehpour (Cal., July 21, 2022) 2022 WL 2840312.)

Plaintiff Permitted to Sue His Former Employer Twice, Once for His Individual Claims and Again Under PAGA.

Here, in a previous action against his employer for alleged Labor Code violations, plaintiff and his employer settled. Thereafter, plaintiff once again sued his former employer, the defendant here, for violation of the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). In the present action, the trial court sustained defendant’s demurrer without leave to amend, finding plaintiff’s first and second lawsuits were “the same,” and because plaintiff could have brought his PAGA claims in his first lawsuit. Reversing, the Court of Appeal stated: “[B]ecause the two actions involve different claims for different harms and because the state, against whom the defense is raised, was neither a party in the prior action nor in privity with the employee, we conclude the requirements for claim preclusion are not met in this case.” (Howitson v. Evans Hotels, LLC (Cal. App. 4th Dist., Div. 1, July 21, 2022) 2022 WL 2866213.)

What the Words in CCP § 1281.4 Mean.

Code of Civil Procedure § 1281.4 is part of the California Arbitration Act (CAA). § 1281.4 states: “If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” Here, plaintiff brought an action under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA) against her former employer. The trial court granted a petition to coordinate plaintiff’s action with a number of other PAGA actions against Lowe’s. Lowe’s then moved to stay the coordinated actions under § 1281.4, basing the stay on over 50 arbitration proceedings against it. But plaintiff here and the other plaintiffs in the coordinated actions were not parties in any of those arbitration proceedings. The trial court granted the motion to stay, and plaintiff filed a petition for writ of mandate asking the Court of Appeal to vacate the order. Issuing a writ of mandate, the appeals court stated: “Section 1281.4 does not authorize the court to stay a plaintiff’s action on the basis of a pending arbitration to which the plaintiff is not a party. Rather, section 1281.4 applies only when a court has ordered parties to arbitration, the arbitrable issue arises in the pending court action, and the parties in the arbitration are also parties to the court action. Under those circumstances, the court must stay the action (or enter a stay with respect to the arbitrable issue, if the issue is severable). (§ 1281.4.)” (Leenay v. Superior Court of San Bernadino County (Cal. App. 4th Dist., Div. 2, July 22, 2022) 2022 WL 2899545.)

If You Want Sanctions, Read the Statute . . . Carefully.

Defendant moved for sanctions against plaintiff and its counsel, filing two motions, one under Code of Civil Procedure § 128.5 and one under § 128.7 of the same code. The motions were served on November 12, 2020 and filed on December 7, 2020. The trial court granted both motions. Plaintiff and its counsel appealed from the orders granting the sanctions motions. Reversing, the Court of Appeal stated: “We hold that the trial court erred by concluding that the sanctions motions could be filed on the last day of the 21-day safe harbor period, rather than on the first day after the 21-day period expired.” (Transcon Financial, Inc. v. Reid & Hellyer, APC (Cal. App. 4th Dist., Div. 2, July 22, 2022) 2022 WL 2900857.)

What Happens When a Plaintiff Does Not Reimburse Health Care Provider as Required Under the Plaintiff’s Policy.

Plaintiffs brought this action against defendant under § 502(a)(1)(B) and § 502(a)(3) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.; ERISA). The ERISA plan at issue covered the plaintiffs, a father and his daughter. The daughter, Lenai, suffered serious injuries after the driver of the vehicle in which she was a passenger lost control and drove the vehicle off a 20-foot embankment. As a result of the accident, Lenai had to undergo multiple surgeries. The plan notified the father that Lenai’s injury appeared to have been caused by a third party, and that the plan would not pay benefits to cover Lenai’s treatment unless the father executed a lien in favor of the plan on any potential third-party recovery. Both the father and Lenai signed a form acknowledging responsibility for reimbursing the plan in the event Lenai recovered money from a third party. Lenai then received a $100,000 settlement from the insurance carrier of the driver who caused her injuries. Because Lenai was over 18 at the time of her injury and subsequent settlement, the proceeds of the settlement were paid directly to her. Consistent with the reimbursement clause, the plan requested that Lenai reimburse it for the benefit payments she had received. The plan also stated that if Lenai failed to respond within 30 days, it would begin deducting the un-reimbursed amount from future benefit payments pursuant to the Recoupment Clause. Plaintiffs brought this action to recover the benefits withheld by the plan and to force the plan to make benefit payments for covered services in the future. The district court granted summary judgment for plaintiffs, concluding that the plan could not enforce its self-help remedy. Reversing, the Ninth Circuit stated that “the Plan’s self-help remedy does not violate ERISA § 502(a)(3), does not undermine ERISA’s civil enforcement scheme, and is not barred by res judicata.” (Mull v. Motion Picture Industry Health Plan (9th Cir., July 25, 2022) 2022 WL 2912475.)

Defendant Employer Compelled Arbitration and Thereafter Didn’t Pay the Required Arbitration Fees

Plaintiff sued her former employer for wrongful termination. Because plaintiff had signed an arbitration agreement, defendant moved to compel arbitration, which the trial court granted. The American Arbitration Association (AAA) sent a letter to counsel for both parties, informing them that plaintiff’s portion of the initial filing fee was $300. Plaintiff paid the $300 the very same day. The next day, AAA sent a letter to counsel for both parties, informing them that plaintiff had paid her fees, that defendant now had to “pay its share of the filing fee in the amount of $1,900,” and that the fee was due by November 4, 2020. The letter included this admonition: “As this arbitration is subject to California Code of Civil Procedure 1281.97 and 1281.98, payment must be received by December 4, 2020 [that is, 30 days after the November 4 deadline] or the AAA will close the parties’ case. The AAA will not grant any extensions to this payment deadline.” AAA sent defendant a few more notices, but the December 4 date came and went, and AAA closed the file. On December 16, plaintiff moved to vacate the order compelling arbitration. On December 19, defendant paid the $1,900. The trial court granted the motion to vacate the order compelling arbitration. Affirming, the Court of Appeal stated: “Perceiving that employees and consumers were being placed in a ‘procedural limbo’ when they were forced to sign arbitration agreements by entities who subsequently refused to pay the necessary fees to allow the arbitrations to move forward, the California Legislature enacted Code of Civil Procedure sections 1281.97, 1281.98 and 1281.99. . . . This appeal presents a question of first impression: Are these provisions preempted by the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.)? We hold that they are not because the procedures they prescribe further—rather than frustrate—the objectives of the FAA to honor the parties’ intent to arbitrate and to preserve arbitration as a speedy and effective alternative forum for resolving disputes.” (Gallo v. Wood Ranch USA, Inc. (Cal. App. 2nd Dist., Div. 2, July 25, 2022) 2022 WL 2913128.)

Untimely Contest to Trust Found to Be a Direct Contest Without Probable Cause, Resulting in Disinheritance.

Several months after the 120-day statutory deadline for trust contests, a beneficiary sued her mother, who was both the trustee and a beneficiary, seeking to void the amendment as procured through undue influence and fraud. Ultimately, defendant, as trustee, sought instructions as to whether plaintiff’s litigation violated the trust’s no contest clause, arguing that its time-barred nature rendered it a direct contest without probable cause, requiring plaintiff’s disinheritance. The trial court granted defendant’s petition for instructions. Affirming, the Court of Appeal stated: “[Plaintiff’s] untimely litigation was a direct contest without probable cause.” (Meiri v. Shamtoubi (Cal. App. 2nd Dist., Div. 3, July 25, 2022) 2022 WL 2913939.)

Carrying Versus Displaying a Firearm.

Washington is an open carry state, meaning it is legal to openly carry a firearm. Marc Willy was arrested after a report from two people who lived three miles apart. Each reported that Willy parked his truck on a street, pulled out a semiautomatic pistol, racked the side, and then put it down. After his arrest, a search of Willy’s vehicle and person recovered illegal firearms and a modified CO2 cartridge. Willy was charged with making and possessing a destructive device in violation of the National Firearms Act, 26 U.S.C. § 5861. The district court granted Willy’s motion to suppress all evidence and statements obtained after his arrest because his arrest was not supported by probable cause. Affirming, the Ninth Circuit stated: “Although the government is correct that the reports here indicated that Willy displayed the firearm rather than just carrying it, this distinction does not create enough of a possibility of criminal activity that Willy was subject to immediate arrest without further investigation.” (United States v. Willy (9th Cir., July 26, 2022) 2022 WL 2922366.)

Federal Railroad Insurance Act & California’s Healthy Workplaces Act; Railroad Workers Not Entitled to Both.

The Railroad Unemployment Insurance Act (45 U.S.C. § 363(b); RUIA), is a federal law that provides the exclusive source of unemployment and sickness benefits to railroad employees. RUIA also contains an express preemption provision disallowing railroad employees from having any right to “sickness benefits under a sickness law of any State.” In 2014, California enacted the Healthy Workplaces, Healthy Families Act (Cal. Lab. Code, §§ 245–249), which requires employers to provide employees with paid sick leave that they may use for specified purposes. The question here was whether RUIA preempts this California law as to railroad employees. Deciding the federal law preempts California’s law, the Ninth Circuit stated: “We conclude that under RUIA, the California Act cannot be applied to railroad employees consistent with the Supremacy Clause.” (National Railroad Passenger Corporation v. Su (9th Cir., July 26, 2022) 2022 WL 2924592.)

Sanctions Order Against Attorney Affirmed.

The trial court sanctioned an attorney $950 under Code of Civil Procedure § 575.2 after she violated several local court rules governing the timely service and filing of materials preparatory to trial. On appeal, the attorney contended a superior court’s power to impose sanctions for violations of its local rules does not extend to violations of local rules regulating the conduct of trial. She also contended that she could not be sanctioned for violating local court rules because the trial court exonerated her of acting in bad faith. Affirming, the Court of Appeal stated: “We reject both of these arguments because the statute by its terms is not limited to pre-trial proceedings and the Legislature did not incorporate, expressly or otherwise, the section 128.5 bad faith standard into section 575.2.” (Shiheiber v. JPMorgan Chase Bank, N.A. (Cal. App. 1st Dist., Div. 2, July 26, 2022) 2022 WL 2951916.)

“Dave, this conversation can serve no purpose anymore. Goodbye,” HAL 9000, 2001: A Space Odyssey.

Two public officials, members of a school district board of trustees, used social media to communicate with constituents about public issues. Plaintiffs are parents of children in that school district; they frequently left comments critical of the trustees. After deleting or hiding plaintiffs’ repetitive comments for a time, the trustees eventually blocked them entirely from their social media pages. Plaintiffs sued, asserting that the trustees violated their First Amendment rights by ejecting them from the social media pages. After a bench trial, the district court agreed with plaintiffs that their First Amendment rights had been violated. The trustees appealed. Affirming, the Ninth Circuit stated: “The Garniers’ claims present an issue of first impression in this Circuit: whether a state official violates the First Amendment by creating a publicly accessible social media page related to his or her official duties and then blocking certain members of the public from that page because of the nature of their comments. For the following reasons, we hold that, under the circumstances presented here, the Trustees have acted under color of state law by using their social media pages as public fora in carrying out their official duties.” (Garnier v. O’Connor-Ratcliff (9th Cir., July 27, 2022) 2022 WL 2951916.)

Defect in Sidewalk Trivial as a Matter of Law.

Plaintiff suffered injuries after she tripped on an elevated sidewalk slab within the City of Redondo Beach. The trial court granted summary judgement for the city and dismissed her lawsuit after concluding the defect in the sidewalk was trivial as a matter of law, with no aggravating factors, and thus nonactionable under Government Code § 830 et seq. Affirming, the Court of Appeal stated: “The evidence, viewed in the light most favorable to Nunez, shows the height differential between the sidewalk slabs where she tripped was—at its highest point—just under three-quarters of an inch . [¶] . . . [¶] . . . The sidewalk defect was trivial as a matter of law [¶] . . . [¶] . . . Nunez’s evidence did not demonstrate the offset presented a substantial risk of injury under the circumstances.” (Nunez v. City of Redondo Beach (Cal. App. 2nd Dist., Div. 3, July 27, 2022) 2022 WL 2965453.)

Court Erred in Excluding Witness’s Testimony at Trial.

The passenger in an all-terrain vehicle (ATV) was injured when the ATV crashed while driving on nearby property in Utah. The owners of the ATV had a homeowner’s insurance policy with defendant. Defendant filed this lawsuit seeking a judicial determination of no coverage. The homeowner’s policy provided coverage if the ATV owners could show the ATV was not subject to motor vehicle registration and was used to “service” the owners’ cabin. After excluding a key witness for the insureds in a bench trial, the district court determined there was no coverage. Reversing, the Ninth Circuit stated the lower court’s exclusion of the witness’s testimony was “clearly erroneous.” (Liberty Insurance Corporation v. Brodeur (9th Cir., July 28, 2022) 2022 WL 2978602.)

Trial Court Erred in Denying Change of Venue.

A young woman attended the University of San Diego. Following a party where she became highly intoxicated, a friend summoned an Uber to take her back to her dorm at the university. That ride was terminated before completion, and the Uber driver, one of the codefendants, exited the Interstate 5 freeway and allegedly ordered the young woman out of the car after she “forcefully vomited all over the dashboard and interior front windshield” of the car.  Subsequently, the young woman initiated a second ride request from Uber, and the petitioner here arrived. The young woman did not enter that car and instead left the area. Neither Uber driver called the police or 911. Half-an-hour later, an eyewitness observed the young woman walk onto the freeway, where she was struck by two different cars. Petitioner alleged the young woman was several miles away from where petitioner saw her when she was killed. Each aspect of this tragic event occurred in San Diego County. The young woman’s family brought an action in San Francisco County for wrongful death against Uber, the two drivers, and others. The San Francisco County trial court denied petitioner’s motion to change the venue of the action to San Diego for the convenience of witnesses and in the interest of justice. Issuing a writ of mandate, the Court of Appeal stated: “Among other things, we conclude the Superior Court erred (1) in reasoning the location of the witnesses was unimportant because they could appear remotely under section 367.75, enacted in response to the COVID-19 pandemic, and (2) in finding Petitioner failed to show venue in San Diego would be more convenient for most witnesses and promote the interests of justice.” (Rycz v. Superior Court of San Francisco County (Cal. App. 1st Dist., Div. 5, July 28, 2022) 2022 WL 2980934.)

Appeal Dismissed Where Non-Party Objected to Settlement of PAGA Lawsuit.

Plaintiff and defendant settled a case brought pursuant to the California Private Attorneys General Act of 2004 (Lab. Code, §§ 2698–2699.5; PAGA). A plaintiff in another, overlapping PAGA case against defendant filed a motion to intervene in the present action to oppose the settlement, and the district court denied the motion and approved the settlement. The plaintiff in the other action brought this present appeal, appealing both the denial of the motion to intervene and the approval of the settlement. Affirming both the order and the judgment, the Ninth Circuit dismissed the appeal because the non-party had no standing to object to object to the settlement in the present action. (Callahan v. Brookdale Senior Living Communities, Inc. (9th Cir. July 29, 2022) 2022 WL 3016027.)

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