Litigation Update: August 2024

In a trademark infringement suit, a jury found no likelihood of confusion between the marks. The district court entered judgment for defendant but denied its request for attorney fees and costs. Defendant appealed from the denial of fees and costs. The parties’ agreement governing attorney fees stated: “If either Party employs attorneys to enforce any right arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees.” Affirming the denial of fees and costs, the Ninth Circuit noted the trademark infringement claim did not arise out of or relate to the agreement. (BillFloat Inc. v. Collins Cash Inc. (9th Cir., July 1, 2024) 105 F.4th 1269.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/01/23-15405.pdf

There are two ways for a party who loses at arbitration to attempt to vacate the award. First, under Code of Civil Procedure § 1285, a party may petition the court to vacate the award, and under Code of Civil Procedure §§ 1288 and 1288.2, such a petition shall be served and filed not later than 100 days after the date a signed copy of the award is served on the petitioner. Second, under Code of Civil Procedure § 1285.2, the losing party may seek to vacate the award by filing a response to the prevailing party’s petition to confirm. When the request to vacate the award is filed in response to a petition to confirm, the response shall be served and filed within 10 days after service of the petition. Here, the trial court denied defendant’s petition to vacate as untimely. Affirming, the Court of Appeal stated: “The trial court correctly found that . . . defendants’ petition to vacate the arbitration award was untimely under Code of Civil Procedure section 1290.6 because it was filed more than 10 days after service of [plaintiffs’] petition to confirm the arbitration award.” (Valencia v. Mendoza (Cal. App. 2nd Dist., Div. 7, July 1, 2024) 103 Cal.App.5th 427.)

https://www.courts.ca.gov/opinions/documents/B325803.PDF

Plaintiffs’ lawsuits alleged that Cedars-Sinai Health System violated California law and breached its own privacy policies by using the Meta Pixel and Google Analytics tools to track and disclose sensitive medical information reflected in user interactions on Cedars-Sinai’s website. Cedars-Sinai removed the actions to federal court, but the district court remanded them back to state court. Affirming, the Ninth Circuit stated: “Although Cedars-Sinai’s website furthers the government’s broad goal of promoting access to digital health records, Cedars-Sinai’s relationship with the federal government does not establish that it acted pursuant to congressionally delegated authority to help accomplish a basic governmental task.” (John Doe v. Cedars-Sinai Health System (9th Cir., July 5, 2024) 106 F.4th 907.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/05/23-55466.pdf

Investigators with Department of Homeland Security conducted a warrantless search of plaintiff’s ranch while investigating a lead about workers being held against their will. Charges of trafficking with respect to forced labor were eventually dropped, and plaintiff brought this action against the federal government, alleging violations of his Fourth and Fifth Amendment rights and citing Bivens v. Six Unknown Agents of Federal Bureau of Narcotics (1971) 403 U.S. 388. The district court dismissed the claims. Affirming, the Ninth Circuit stated: “[Plaintiff’s] Fourth and Fifth Amendment claims based on allegations that defendants fabricated evidence resulting in her arrest and prosecution present a new context under Bivens and that special factors counsel hesitation in extending an implied cause of action here.” (Sheikh v. U.S. Department of Homeland Security (9th Cir., July 5, 2024) 106 F.4th 918.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/05/22-16983.pdf

Plaintiff brought a class action against Dun & Bradstreet (D&B) challenging the use of her name and contact information in a free trial offer of D&B’s database. She alleged the use of that information without her permission violated her right of privacy under California law. D&B filed a motion to strike under California’s anti-SLAPP law, Code of Civil Procedure § 425.16, which the district court denied. Affirming, the Ninth Circuit stated: “The anti-SLAPP statute does not apply to any lawsuits brought ‘solely in the public interest or on behalf of the general public.’” (Batis v. Dun & Bradstreet Holdings, Inc. (9th Cir., July 8, 2024) 106 F.4th 932.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/08/23-15260.pdf

Plaintiffs are surviving family members of a man shot to death by a Los Angeles police officer when he came toward the officer with a two-bladed box cutter and refused to put it down after being ordered to do so. The district court granted summary judgment for all defendants. The Ninth Circuit agreed with the lower court that the police officer was entitled to qualified immunity on the federal claims, but noted that the complaint also asserted state law claims for, inter alia, assault, wrongful death, and violation of the Bane Act (Civ. Code, § 52.1). Affirming in part and reversing in part, the appeals court held: “However, because the reasonableness of [the police officer’s] force presents a triable issue, the district court erred in granting summary judgment on that basis as to certain of Plaintiffs’ state law claims.” (Estate of Hernandez by & through Hernandez v. City of Los Angeles (9th Cir., Mar. 21, 2024) 96 F.4th 1209.)

The latest:
The three-judge panel opinion was vacated, and the case will be heard en banc. (Estate of Hernandez v. City of Los Angeles (9th Cir., July 8, 2024) 106 F.4th 940.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/08/21-55994.pdf

San Francisco has an ordinance that punishes sleeping, lodging, or camping on public property. Sometimes homeless individuals are arrested for creating a public nuisance, a misdemeanor (Pen. Code, §§ 370, 372) or disorderly conduct, which is also a misdemeanor (Pen. Code, § 647). The district court granted a preliminary injunction for the Coalition on Homelessness and seven current or formerly homeless San Francisco residents after finding that San Francisco’s sweep operations are unconstitutional. On appeal, San Francisco argued, for the first time, that its enforcement actions do not leave unhoused individuals with nowhere to go because the unhoused are required to relocate to specific encampment sites. The Ninth Circuit found San Francisco waived that argument because it was not raised in the district court and concluded San Francisco had not shown the injunction was improper. (Coalition on Homelessness v. City and County of San Francisco (9th Cir., Jan. 11, 2024) 90 F.4th 975.)

The latest:
The panel withdrew its opinion in light of the U.S. Supreme Court’s decision in City of Grants Pass v. Johnson (2024) 144 S.Ct. 2202, which held that the enforcement of generally applicable laws regulating camping on public property does not constitute “cruel and unusual punishment” prohibited by the Eighth Amendment. (Coalition on Homelessness v. City and County of San Francisco (9th Cir., July 8, 2024) 106 F.4th 931.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/08/23-15087.pdf

The agent of painter Camille Pissarro sold the painting in 1900 to Paul Cassirer, a member of a prominent German Jewish family that owned an art gallery and publishing house. Some quarter-century later, Lilly Cassirer inherited the painting and displayed it in her Berlin home. But in 1933, the Nazis came to power. After years of intensifying persecution of German Jews, Lilly decided in 1939 that she had to do anything necessary to escape the country. To obtain an exit visa to England, where her grandson Claude Cassirer had already relocated, she surrendered the painting to the Nazis. Lilly and Claude ended up in the United States. After the war, they could not locate the painting, so in 1958, Lilly agreed to accept compensation from the German Federal Republic for an amount worth about $250,000 in today’s dollars. Over the years, the painting was bought and sold a few times; the last time to an entity controlled by the Kingdom of Spain for over $300 million. It is now part of a collection in a Madrid palace. The underlying question in this case is whether the Cassirer family can get the painting back, but the question before the U. S. Supreme Court involved choice of law. Under the Foreign Sovereign Immunities Act of 1976 (28 U. S. C. §1602 et seq.), a foreign state or instrumentality is amenable in specified circumstances to suit in an American court. Claude brought such a suit to recover the painting. The U.S. Supreme Court held: “The question presented is what choice-of-law rule the court should use to determine the applicable substantive law. The answer is: whatever choice-of-law rule the court would use if the defendant were not a foreign-state actor, but instead a private party. Here, that means applying the forum State’s choice-of-law rule, not a rule deriving from federal common law.” (Cassirer v. Thyssen-Bornemisza Collection Foundation (U.S., Apr. 21, 2022) 596 U.S. 107.) 

Next:
Once back in the Ninth Circuit, that court concluded that “under the facts of this case, Spain’s governmental interests would be more impaired by the application of California law than would California’s governmental interests be impaired by the application of Spanish law. Thus, applying California’s choice-of-law test, we hold that Spanish law must apply. [¶] Applying Spanish law, TBC [the collection in the museum in Spain] has gained prescriptive title to the Painting pursuant to Article 1955 of the Spanish Civil Code. [Citation.] We therefore affirm the district court’s order which granted judgment in favor of TBC.” (Cassirer v. Thyssen-Bornemisza Collection Foundation (9th Cir., Jan. 9, 2024) 89 F.4th 1226.)

The latest:
Two things happened. First, the full court of the Ninth Circuit denied the petition for rehearing en banc. Second, Judge Graber wrote separately: “I regret this court’s denial of rehearing en banc. [¶] . . . We must ask, in the context of this particular dispute, which jurisdiction’s interest in enforcing its laws would be more impaired by applying the other jurisdiction’s law. That inquiry favors applying a new, specific, modern law that will frustrate the purpose of the other jurisdiction’s law only minimally. The test disfavors applying an old, general, isolated law that will eviscerate the purpose of the other jurisdiction’s law. [¶] The answer here is clear: California’s law applies. California’s law is new (enacted in 2010), specific to the recovery of stolen art, and consistent with nearly all domestic and international laws; and applying California’s law will affect the purpose of Spain’s law in only a tiny fraction of cases. By contrast, Spain’s law is old (enacted in 1889); applies generally to all private property; and is isolated, contrary to the law of nearly all other jurisdictions, and contrary to Spain’s own international commitments to return artwork stolen by Nazis. Finally, applying Spain’s law would undermine entirely the purpose of California’s law.” (Cassirer v. Thyssen-Bornemisza Collection Foundation (9th Cir., July 9, 2024) 107 F.4th 882.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/01/09/19-55616.pdf

A driver led police on a high-speed felony chase. Although he got stuck in mud, he kept trying to flee. A responding officer broke the car window to order him to stop and another officer put his police dog through the car’s window. The driver responded by shooting—and killing—the dog, hitting the dog’s handler in the process. The remaining officers returned fire in defense of themselves and the fallen officer, ultimately killing the driver. During the gunfight, they accidentally hit a passenger in the front seat, multiple times. She survived, but she was severely injured. She sued under 42 U.S.C. § 1983 and California law. The district court granted summary judgment for defendants based on an erroneous finding that the passenger was not seized for Fourth Amendment purposes, and alternatively, that even if she were seized, the officers were entitled to qualified immunity. The Ninth Circuit affirmed, stating: “Because we find that the officers are entitled to qualified immunity, we affirm.” (Cuevas v. City of Tulare (9th Cir., July 10, 2024) 107 F.4th 894.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/10/23-15953.pdf

Plaintiffs alleged that their employer violated the Fair Labor Standards Act (29 U.S.C. § 201 et seq.; FLSA) by failing to pay overtime wages for time spent booting up and shutting down their computers each day. The district court granted summary judgment for defendant, holding the time not compensable under longstanding precedents establishing that the FLSA does not require an employer to pay wages for work performed before or after scheduled work hours where the amount of time in question is “de minimis.” On appeal, plaintiffs argued that the de minimis doctrine was no longer good law. Reversing, the Ninth Circuit stated: “The de minimis doctrine remains applicable to workers’ claims for overtime wages under 29 U.S.C. § 207. Triable issues of material fact remain, however, as to whether the time here was de minimis.” (Cadena v. Customer Connexx LLC (9th Cir., July 10, 2024) 107 F.4th 902.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/10/23-15820.pdf

During plaintiff’s arrest, San Jose Police Department officers deployed a police dog that allegedly bit plaintiff for more than twenty seconds after he had surrendered and lay prone on his stomach with arms outstretched. Plaintiff sued the City of San Jose and several officers involved in the arrest under 42 U.S.C. § 1983, alleging that the officers’ excessive force violated the Fourth Amendment and resulted in severe lacerations and permanent nerve damage to his arm. Defendants appealed the district court’s denial of their motion for summary judgment based on qualified immunity. Affirming, the Ninth Circuit stated: “At a minimum, whether the officers acted reasonably in permitting the police dog to hold the bite for its duration under these circumstances is a triable question to be decided by a jury. Further, our caselaw clearly establishes that officers violate the Fourth Amendment when they allow a police dog to continue biting a suspect who has fully surrendered and is under officer control. Accordingly, we affirm the denial of qualified immunity.” (Rosenbaum v. City of San Jose (9th Cir., July 11, 2024) 107 F.4th 919.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/11/22-16863.pdf

 The Court of Appeal concluded that a declaratory relief claim filed in response to an attorney’s cease and desist letter in a waste collection dispute was not a strategic lawsuit against public participation under California Code of Civil Procedure § 425.16. It also concluded that communications sent to non-parties about the dispute fell within the commercial speech exemption to the anti-SLAPP law under California Code of Civil Procedure § 425.17, subdivision (c). In the opinion, the Court of Appeal also chided appellant’s lack of civility in its briefing, including: “Appellant’s briefs use inappropriately harsh terms to launch needless and unsubstantiated attacks on the decisions made by the trial judge, as well as against the opposing party and its lawyers. . . . [¶] Appellant targets both respondent and its counsel in the same freewheeling, unprofessional manner. None of these statements were necessary. None of the vitriol advanced the legal arguments in this case. To the contrary, this incivility created an unnecessary distraction to both opposing counsel and this court. . . . [¶] . . . When counsel resort to name-calling and to unsupported claims of misconduct, they risk obscuring any meritorious arguments they may have. Appellant’s counsel would be well advised to refrain from incivility in the future.” (WasteXperts, Inc. v. Arakelian Enterprises, Inc. (Cal. App. 2nd Dist., Div. 4, July 11, 2024) 103 Cal.App.5th 562.)

https://www.courts.ca.gov/opinions/documents/B325299.PDF

Asserting violations of international law, plaintiffs asked the Ninth Circuit to enjoin the President and other senior Executive Branch officials from providing military, diplomatic, and financial support to Israel in its ongoing operations in the Gaza Strip. Plaintiffs also asked for a declaration that the United States’ current support of Israel is unlawful. Denying the relief requested, the Ninth Circuit stated: “We hold that plaintiffs’ lawsuit is not justiciable under the political question doctrine. We affirm the dismissal of plaintiffs’ complaint.” (Defense for Children International-Palestine v. Biden (9th Cir., July 15, 2024) 107 F.4th 926.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/15/24-704.pdf

Defendant was sued by a former employee and unsuccessfully moved to compel arbitration. The trial court and the Court of Appeal concluded the arbitration agreement contained unconscionable provisions and declined to enforce it. The California Supreme Court also concluded that certain provisions were substantively unconscionable. California’s highest court then stated: “The next question revolves around remedy. Should the courts have refused to enforce the agreement, or could they have severed the unconscionable provisions and enforced the rest?” The Court remanded the matter for further consideration on severance after providing some guidance on the issue. Next, the California Supreme Court addressed the fact that the arbitration agreement expressly provides that it “will be governed” by the Federal Arbitration Act (9 U.S.C. § 1 et seq.; FAA). Addressing defendant’s argument that it would contravene the FAA to apply the general law of unconscionability by refusing to sever the agreement’s unconscionable provisions and support the rest, the Court stated: “We also conclude the Court of Appeal’s decision did not violate the Federal Arbitration Act.”
(Ramirez v. Charter Communications, Inc. (Cal., July 15, 2024) 16 Cal.5th 478.)

https://www.courts.ca.gov/opinions/documents/S273802.PDF

Defendant was the general contractor for a fuel systems improvement project at San Francisco International Airport. Defendant hired a subcontractor to replace the floor of a jet fuel tank. That subcontractor, in turn, retained a sub-tier independent contractor to inspect the subcontractor’s welding. Plaintiff worked for the sub-tier independent contractor. He was tasked with taking radiographic images of the welding work the subcontractor had performed on the jet fuel tank. Without seeking permission, plaintiff used a ladder that had been installed for use by the subcontractor. He later said the ladder came out from underneath when he was about four feet off the ground. He fell and sustained serious injuries, including a broken hip. After granting motions for summary judgment, the trial court dismissed the case after concluding the opposition did not present evidence showing there were questions of material fact under the retained control exception. The Court of Appeal affirmed. (Bowen v. Burns & McDonnell Engineering Company, Inc. (Cal. App., 1st Dist., Div. 2, July 15, 2024) 103 Cal.App.5th 759.)

https://www.courts.ca.gov/opinions/documents/A166793.PDF

Plaintiff brought a putative class action against defendant Kimberly Clark Corp., alleging that the label of its baby wipes was misleading, in violation of California’s false advertising laws. Plaintiff alleged that she regularly purchased defendant’s baby wipes from Target every two weeks over a five-month period. Although all products purchased by the putative class members allegedly contained the phrases “natural care” and “plant-based,” defendant used a variety of label designs for its wipes, with some differences. The district court granted defendant’s motion to dismiss, holding that the label was not misleading as a matter of law. Affirming in part and reversing in part, the Ninth Circuit stated: “Placing a disclaimer or a fine-print ingredients list on a product’s back label does not necessarily absolve a defendant of liability for deceptive statements on the front label. . . . [¶] . . . [¶] . . . We affirm the district court’s dismissal of Plaintiff’s claims as to the Asterisked Products” “The asterisk and qualifying statement on the Asterisked Products, paired with the back label ingredients list, ‘[makes] it impossible for the plaintiff to prove that a reasonable consumer was likely to be deceived.’” (Whiteside v. Kimberly Clark Corp. (9th Cir., July 17, 2024) 108 F.4th 771.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/17/23-55581.pdf

A man who worked for a Zen Buddhist temple in San Francisco was terminated and sued the center alleging various legal theories. The district court granted summary judgment for defendant. Affirming, the Ninth Circuit stated: “The religion clauses of the First Amendment give the Center the freedom ‘to select, supervise, and if necessary, remove a minister without interference by secular authorities.’” (Behrend v. San Francisco Zen Center, Inc. (9th Cir., July 17, 2024) 108 F.4th 765.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/17/23-15399.pdf

Plaintiff was a pretrial jail inmate whose right leg is amputated above the knee. A deputy sheriff decided to extract him forcibly from his normal cell to place him in a safety cell, but did not provide him a wheelchair or other mobility device during the procedure to accommodate his disability. Instead, he was required to hop on his one leg until it gave out. Deputies picked him up and carried him by his arms and leg the rest of the way. Plaintiff sued the deputies, the City and County of San Francisco, and others, alleging violation of his Fourteenth Amendment rights, the Americans with Disabilities Act (ADA), and the Rehabilitation Act. A jury found the deputy caused the use of excessive force during the cell extraction in violation of the Fourteenth Amendment and denied plaintiff reasonable accommodations in violation of the ADA and Rehabilitation Act. The jury also found that the city inadequately trained its jail officers on how to perform cell extractions on detainees with disabilities, thereby holding the city liable for the constitutional violation, awarding plaintiff $504,000 in compensatory damages, but only against the city. The district court denied the defendants’ post-trial motion for judgment as a matter of law or a new trial. Affirming in part and denying in part, the Ninth Circuit stated: “Substantial evidence supported Bell’s Fourteenth Amendment excessive force claim and his ADA and Rehabilitation Act claims. . . . However, we reverse the district court’s decision as to Bell’s Monell theory of liability for the constitutional violation because Bell did not present substantial evidence at trial showing that the City’s training was the product of deliberate indifference to a known risk. We also vacate the jury’s compensatory damages award and remand for a remittitur or a new trial.” (Bell v. Williams (9th Cir., July 18, 2024) 108 F.4th 809.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/18/22-16580.pdf

Defendants were charged with conspiracy to violate the Anti-Riot Act (18 U.S.C. §§ 2101–02), as well as with substantively violating the Act. In a prior appeal, the lower court held that the Act was unconstitutional due to facial overbreadth under the First Amendment. The Ninth Circuit reversed and remanded, finding the Act was not facially overbroad except for certain severable portions. On remand, the district court again dismissed the indictment, this time based on a claim of selective prosecution, concluding the government prosecuted defendants while ignoring the violence of members of Antifa and related far-left groups because defendants’ far-right group engaged in more offensive speech. Once again, the Ninth Circuit reversed, reinstated the indictment, and remanded the case for trial, stating: “To establish discriminatory effect, ‘the claimant must show that similarly situated individuals . . . were not prosecuted.”’ (United States v. Rundo (9th Cir., July 18, 2024) 108 F.4th 792.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/18/24-932.pdf

This case before the California Supreme Court revolved around language in a standard fire insurance policy: “No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within 12 months next after inception of the loss.” The issue was the timeliness of a cause of action under the unfair competition law (Bus. & Prof. Code, § 17200 et seq.; UCL). A divided Court of Appeal affirmed the superior court’s entry of judgment in favor of the insurance company; the dissenting justice would have allowed plaintiff’s suit to proceed, concluding UCL’s four-year limitations period controlled. Reversing and remanding, California’s highest court stated: “Plaintiff is not attempting to directly or indirectly recover damages associated with the denial of her insurance claim. Instead, plaintiff seeks only declaratory relief regarding [defendant’s] claims-handling practices generally and a forward-looking injunction under the UCL. In pursuing such relief, plaintiff brings an essentially ‘preventive’[] action to which neither the standard policy’s language, nor the policy reasons underlying the Legislature’s authorization of a one-year limitations period for filing certain kinds of claims-related lawsuits, applies.” (Rosenberg-Wohl v. State Farm Fire and Casualty Company (Cal., July 18, 2024) 16 Cal.5th 520.)

https://www.courts.ca.gov/opinions/documents/S281510.PDF

At the height of the pandemic, defendant San Diego Unified School District proposed to implement a local “Vaccination Roadmap” mandating that district students receive a COVID-19 vaccination in order to attend in-person classes and participate in extracurricular activities at the district’s schools. In Let Them Choose v. San Diego Unified School District (2022) 85 Cal.App.5th 693, the Court of Appeal affirmed the trial court’s order invalidating the roadmap, holding that a local vaccination requirement as proposed by the district was preempted by state law. In so doing, the appellate court had characterized the case as presenting “issues of broad public interest.” Following that decision, the prevailing plaintiffs  and an individual parent returned to the trial court and filed motions requesting an award of attorney’s fees under Code of Civil Procedure § 1021.5. The trial court denied plaintiffs’ request for fees. Reversing the lower court’s denial of attorney fees, the Court of Appeal stated: “The public interest that plaintiffs’ lawsuit sought to enforce was the District’s obligation to comply with established procedures, even as it sought to achieve laudable goals. The interest is an important one, but vindicating it generates no economic benefit for its champions. As a result, an award of attorney’s fees under section 1021.5 is peculiarly appropriate. Because plaintiffs’ lawsuit demonstrably promoted the strong public interest in following fair and uniform procedures, and because the District’s announced attempt to adopt the Roadmap was inconsistent with those procedures, we must reverse the trial court’s order and remand for a determination as to the appropriate amount of attorney’s fees.” (Let Them Choose v. San Diego Unified School District (Cal. App. 4th Dist., Div. 1, July 18, 2024) 103 Cal.App.5th 953.)

https://www.courts.ca.gov/opinions/documents/D082478.PDF

A law firm had $585,000 of its client’s money in its client trust account to be used for future litigation. A judgment creditor for the client served the law firm with a notice of levy on the theory the funds belonged to the client. The trial court agreed with the judgment creditor and entered judgment in the judgment creditor’s favor. On appeal, the law firm contended the funds belonged to the law firm and not the client. Affirming the judgment of the trial court, the Court of Appeal stated: “The location of the funds in the client trust account is not dispositive. . . . [The law firm] presented no evidence that it had earned the flat fee.” (Dickson v. Mann (Cal. App. 4th Dist., Div. 1, July 16, 2024) 103 Cal.App.5th 935.)

https://www.courts.ca.gov/opinions/documents/D081851.PDF

Defendant appealed the district court’s denial of its motion to compel arbitration in an action brought by plaintiff, an airline fuel technician employed by a defendant, alleging that defendant violated California’s wage, meal period, and rest period requirements. Defendant contended the lower court erred in holding that, as a transportation worker engaged in foreign or interstate commerce, plaintiff was exempt from the arbitration requirements imposed by the Federal Arbitration Act (9 U.S.C. § 1; FAA). Defendant asserted that plaintiff’s fueling of airplanes that carried goods in interstate and foreign commerce was insufficient to support an exemption. Affirming, the Ninth Circuit stated: “[W]orking as a technician fueling planes carrying goods in interstate and foreign commerce, qualifies as a transportation worker for purposes of the exemption from the FAA’s arbitration requirements.” (Lopez v. Aircraft Service International, Inc. (9th Cir., July 19, 2024) 107 F.4th 1096.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/19/23-55015.pdf

The district court determined that a bank breached its agreement to indemnify plaintiff in two underlying lawsuits and accordingly awarded damages for attorney fees incurred in those underlying actions. The lower court, relying on a forty-year-old decision, DeWitt v. Western Pacific Railroad Co. (9th Cir. 1983) 719 F.2d 1448, awarded plaintiff damages for attorney fees associated with the present first-party breach of contract suit enforcing the indemnity provision. Vacating the award for first party attorney fees and remanding for the lower court to determine whether fees were otherwise recoverable, the Ninth Circuit stated: “DeWitt is ‘only binding in the absence of any subsequent indication from the California courts that our interpretation was incorrect,’ [] and California appellate cases since DeWitt uniformly indicate that first-party attorney fees are not recoverable under an indemnity provision.” (AGK Sierra De Montserrat, L.P. v. Comerica Bank (9th Cir., July 19, 2024) 2024 WL 3464426.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/19/23-15290.pdf

Plaintiff was giving driving directions to her daughter over cell phone when her daughter was severely injured in a car crash. Plaintiff heard the collision and its immediate aftermath, but she could not see what had caused it. In her action to recover for her emotional distress damages, plaintiff contended that the fault lay partially with individuals and entities responsible for the condition of the roadway where the crash occurred. The Court of Appeal concluded plaintiff was not entitled to recover emotional distress damages against these defendants, unless at the time of the crash, she was aware of a causal connection between her daughter’s injuries and defendants’ alleged negligence in maintaining the intersection. Reversing the judgment of the Court of Appeal, the California Supreme Court stated: “For purposes of clearing the awareness threshold for emotional distress recovery, it is awareness of an event that is injuring the victim—not awareness of the defendant’s role in causing the injury—that matters.” (Downey v. City of Riverside (Cal., July 22, 2024)16 Cal.5th 539.)

https://www.courts.ca.gov/opinions/documents/S280322.PDF

Plaintiff brought suit against several media companies based in Dubai, seeking damages for an allegedly defamatory news story that ran on the Arabic language Al Arabiya news channel, which was rebroadcast in the U.S. via DISH network, and was also republished on Al Arabiya’s website and YouTube channel. Defendants collectively moved to quash on the basis of lack of personal jurisdiction. The trial court concluded there were insufficient minimum contacts with California to support jurisdiction and granted the motion to quash. Affirming, the Court of Appeal stated: “In sum, defendants did not direct DISH to retransmit into California. As such, DISH’s forum contacts are those of a third party and cannot be attributed to defendants.” (Safieddine v. MBC FZ, LLC (Cal. App. 2nd Dist., Div. 5, June 26, 2024) 2024 WL 3516737.)

https://www.courts.ca.gov/opinions/documents/B320642.PDF

Plaintiff was a staff psychologist in a federal prison. A corrections lieutenant with whom she worked, and who was responsible for overseeing the safety of guards, prison staff, and inmates in the unit where she worked, operated an Instagram account, which was followed by more than one hundred prison employees. She learned that the lieutenant had posted sexually offensive content about work, and that she was a personal target. When she complained, prison officials first rebuffed her complaint, stating the posts were funny. Later, prison officials were either nonresponsive or very slow in addressing her complaints. The lieutenant’s conduct and the prison’s lack of a curative response to it ultimately drove plaintiff to leave the prison in search of a different job. She sued the Bureau of Prisons under Title VII of the Civil Rights Act of 1964, claiming that the Bureau failed to take adequate measures to address a hostile work environment at the prison. The district court granted the government’s motion for summary judgment. Reversing, the Ninth Circuit stated: “We reverse and remand. The district court erred by considering only some of the evidence, and by applying incorrect legal standards that circumscribed the law concerning hostile work environment claims. We take this occasion to reaffirm that the totality of the circumstances in a Title VII sexually hostile work environment claim includes evidence of sexually harassing conduct, even if it does not expressly target the plaintiff, as well as evidence of nonsexual conduct directed at the plaintiff that a jury could find retaliatory or intimidating. We also reject the notion that only conduct that occurs inside the physical workplace can be actionable, especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.” (Okonowsky v. Garland (9th Cir., July 25, 2024) 2024 WL 3530231.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/25/23-55404.pdf

The U.S. Supreme Court tackled the question of when a party to an arbitration agreement waives the right to arbitrate. The nation’s highest court noted that lower federal courts have required a showing of harm before concluding the right to arbitrate was waived. Here, defendant initially defended itself against plaintiff’s wage and hour claim as if no arbitration agreement existed, and then changed course eight months later by moving to stay the trial action and compel arbitration. Analyzing the case, the Supreme Court noted that “outside the arbitration context, a federal court assessing waiver does not generally ask about prejudice.” Rejecting a circuit court’s prejudice requirement, the Supreme Court held: “Our sole holding today is that it may not make up a new procedural rule based on the FAA’s ‘policy favoring arbitration.’” (Morgan v. Sundance, Inc. (U.S., May 23, 2022) 142 S.Ct. 1708.) 

The latest:
With regard to whether or not a showing of prejudice is required to establish waiver of the right to compel arbitration, the California Supreme Court held: “Because our state-law arbitration-specific prejudice requirement is based upon the federal precedent that Morgan overruled, we now abrogate it.” (Quach v. California Commerce Club, Inc., (Cal., July 25, 2024) 551 P.3d 1123.)

https://www.courts.ca.gov/opinions/documents/S275121.PDF

Under Business & Professions Code § 7451, a driver for an app-based transportation or delivery company, such as Uber Technologies, Inc., Lyft, Inc., or DoorDash, Inc. is an independent contractor and not an employee of the company as long as several conditions are met. As a result of § 7451, app-based drivers are not covered by California workers’ compensation laws, which generally apply to employees and not to independent contractors. Plaintiffs contended § 7451 conflicts with article XIV, section 4 of the California Constitution, which vests the Legislature “with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers’ compensation, by appropriate legislation.” Rejecting plaintiffs’ contention, the California Supreme Court stated: “We agree with the Attorney General that section 7451 does not conflict with article XIV, section 4 because the latter provision does not preclude the electorate from exercising its initiative power to legislate on matters affecting workers’ compensation. Whether the operation of section 7465 and article II, section 10(c) improperly constrains the Legislature’s article XIV, section 4 authority to enact future legislation is not presented here, and we express no view on that question.” (Castellanos v. State of California (Cal., July 25, 2024) 2024 WL 3530208.)

https://www.courts.ca.gov/opinions/documents/S279622.PDF

Plaintiff is an 11-year-old acting through his guardian ad litem. He contended defendant, his school, violated his rights and the rights of a class under the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.; CMIA) and the Consumer Records Act (Civ. Code, § 1798.80 et seq.; CRA) by negligently maintaining its database and thus allowing his private medical information to be obtained by hackers. Plaintiff contended defendant did not notify him of the breach for over five months after it occurred. The trial court sustained defendant’s demurrer without leave to amend. Reversing, the Court of Appeal stated: “The CMIA statute requires ‘pleading and proof that confidential information has been released in violation of CMIA to bring a private cause of action.’ [] But such a cause of action does not require proof of ‘an affirmative communicative act’ by the entity that has stored the medical information. . . . [¶] Because J.M. alleged his confidential personal information was provided to Illuminate to evaluate his educational progress, and because that information was subject to the data breach, he was an intended beneficiary under the CRA [¶] . . . [¶] Moreover, J.M. pled facts showing current harm to himself and others. He pled the data breach ‘has already begun to [cause] . . . financial and personal losses,’ and the delayed notification has allowed cyber thieves to trade their personal information on the black market.” (J.M. v. Illuminate Education, Inc., (Cal. App. 2nd Dist., Div. 6, July 25, 2024) 2024 WL 3530281.)

https://www.courts.ca.gov/opinions/documents/B327683.PDF

Plaintiffs alleged that a for-profit food service company hired by a county to provide food to county jail inmates employs detainees in the Santa Rita Jail without compensating them. Alameda County has not enacted a local ordinance providing for compensation to county detainees for services performed. The Ninth Circuit certified the following question to the California Supreme Court: “Do non-convicted incarcerated individuals performing services in county jails for a for-profit company to supply meals within the county jails and related custody facilities have a claim for minimum wages and overtime under Section 1194 of the California Labor Code in the absence of any local ordinance prescribing or prohibiting the payment of wages for these individuals?” (Ruelas v. County of Alameda (9th Cir., Nov. 1, 2022) 51 F.4th 1187.)

Next:
The California Supreme Court held: “The United States Court of Appeals for the Ninth Circuit has asked us to decide whether nonconvicted incarcerated individuals working in a county jail for a private company have a claim for minimum wage and overtime under California law. We conclude the answer is no.” (Ruelas v. County of Alameda (Cal., Apr. 22, 2024) 15 Cal.5th 968.)

The latest:
The Ninth Circuit held: “The California Supreme Court’s response makes clear that Plaintiffs’ minimum wage and overtime claims fail and the district court should have granted Defendants’ motion to dismiss both of those claims. We reverse the district court’s order denying the motion to dismiss Plaintiffs’ claims arising under section 1194 of the California Labor Code. Each side shall bear their own costs on appeal.” (Ruelas v. County of Alameda (9th Cir., July 26, 2024) 2022 WL 22858692.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/26/21-16528.pdf

Plaintiff purchased a used car from defendant. The “check engine” light went on when he was driving home. That was the first of many trips for maintenance on the car. Eventually, he filed a claim under the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.; CLRA). Defendant argued the CLRA claim was barred by its three-year statute of limitations. Affirming, the Court of Appeal stated: “On appeal, defendants argue the court should have found the CLRA claim was time-barred as a matter of law in its ruling on the demurrer, the summary judgment motion, or the nonsuit motion. Among other things, they contend the discovery rule does not apply to the CLRA’s statute of limitations. No appellate court within California has squarely addressed this question. We find the discovery rule does apply and publish this case for that reason.” (Medina v. St. George Auto Sales, Inc., (Cal. App. 4th Dist., Div. 3, July 26, 2024) 2024 WL 3548620.)

https://www.courts.ca.gov/opinions/documents/G063909.PDF

A woman suffering from medical conditions that made it difficult for her to walk fell on a small stairway while being led to her table at defendant’s restaurant. She was taken to the hospital for surgery and died four days later, after contracting a fatal infection at the hospital. There was a wrongful death action, but the owner of the restaurant at the time of the fall later sold the restaurant. An action was brought against the present owner by the woman’s widower. He alleged claims under the under Title III of the Americans with Disabilities Act (42 U.S.C. § 12188(a)(2); ADA) and the Unruh Civil Rights Act (Civ. Code, §§ 51, 52, 54, et seq.). Plaintiff sought injunctive relief (removal of the barriers that prevent disabled persons from safely coming to the restaurant). The trial court granted the present owner’s motion for summary judgment and sanctioned plaintiff’s lawyer almost $100,000 for pursuing a frivolous action. The Court of Appeal reversed, finding “In this case, we are at the summary judgment stage, so we must accept as true that there are 22 continuing barriers at Owner’s Property (the restaurant and the surrounding property) that are in current violation of the ADA. The removal or modification of these unlawful barriers through a private right of action under Title III of the ADA is plainly in support of the public’s interest in preventing ‘discrimination against disabled individuals. [¶] Thus, we hold Robert had standing to file a Title III ADA cause of action in the Orange County Superior Court, and we further hold that the trial court improperly granted Owner’s motion for summary judgment as to the ADA cause of action. With regard to the sanctions, the appellate court stated: “Here, the trial court ordered Robert’s attorney to pay Owner $98,852 in sanctions under section 128.7 on the sole basis that the disability access claims the attorney was pursuing against Owner ‘were factually and legally frivolous.’ [¶] But we have determined Robert’s ADA, Unruh Act, and DPA claims are supported by the facts developed at the summary judgment stage and are arguably legally meritorious (i.e., not frivolous). Thus, we find the trial court erred by imposing the attorney sanctions award. [¶] In its amicus brief, the CAOC [(Consumer Attorneys of California)] compellingly argues the attorney sanction order against Robert’s (the plaintiff’s) attorney should be reversed ‘in order to avoid deterring the zealous advocacy on which the common law’s vitality depends.’ [¶] While we need not reach that larger issue due to our decision on the merits, we note that the CAOC’s public policy argument is well taken.” (Saurman v. Peter’s Landing Property Owner, LLC (Cal. App. 4th Dist., Div. 3, July 26, 2024) 2024 WL 3548509.)

https://www.courts.ca.gov/opinions/documents/G061561.PDF

A man petitioned the superior court because he wanted to stop registering as a sex offender. He was required to register as a sex offender because he pleaded no contest to a charge of a lewd act on a child in 1991. He penetrated an unrelated five-year-old girl who called him “Daddy.” He repeated this conduct on a daily basis during the work week while the girl’s mother was away at her job. He persisted for three years until the girl eventually told her mother after she turned eight. The man was convicted, imprisoned for a six-year term, released, and required to register annually as a sex offender. In 2022, the man petitioned the trial court to terminate his registration duty, arguing his crime-free record since 1991 showed he was no longer a danger to the community. The trial court denied the petition. Affirming, the Court of Appeal stated: ‘“[C]ommunity safety would be significantly enhanced by requiring continued registration.’ (Pen. Code, § 290.5, subd. (a)(3).) The persistence and extent of Malbry’s offense conduct, his lack of insight, and his willingness to exploit a trusting child support the trial court’s ruling.” (People v. Malbry (Cal. App. 2nd Dist., Div. 8, July 26, 2024) 2024 WL 3548590.)

https://www.courts.ca.gov/opinions/documents/B328627.PDF

The California Supreme Court clarified when the time to appeal starts to run in writ-of-mandate proceedings pursuant to Code of Civil Procedure § 1094.5: “[W]e adopt a ‘bright line[]’ rule [] that the time to appeal in administrative mandate proceedings starts to run with entry of ‘judgment’ or service of notice of entry of ‘judgment,’ rather than with the filing of, or service of notice of the filing of, an ‘order,’ minute order, or other ruling.” (Meinhardt v. City of Sunnyvale (Cal., July 29, 2024) 2024 WL 3561112.)

https://www.courts.ca.gov/opinions/documents/S274147.PDF

Plaintiff contended a coworker called her the “N word,” and that when she reported it to the human-resources manager, the manager obstructed her in filing a formal complaint. She sued under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA), and the superior court granted summary judgment for defendants and the Court of Appeal affirmed. Reversing, the California Supreme Court stated: “[W]e conclude that an isolated act of harassment may be actionable if it is sufficiently severe in light of the totality of the circumstances, and that a coworker’s use of an unambiguous racial epithet, such as the N-word, may be found to suffice. Second, we assess whether a course of conduct that effectively seeks to withdraw an employee’s means of reporting and addressing racial harassment in the workplace is actionable in a claim of retaliation, that is, whether such conduct may constitute an adverse employment action. We conclude that it may.” (Bailey v. San Francisco District Attorney’s Office, (Cal., July 29, 2024) 2024 WL 3561569.)

https://www.courts.ca.gov/opinions/documents/S265223.PDF

An unarmed man in mental distress in Las Vegas called the police for help. Two police officers came to the scene. Though he complied with the officers’ orders and was not suspected of a crime, the two officers initiated physical contact, forced the man to the ground, and used bodyweight force to restrain him. Shortly after, the man lost consciousness, and he was later pronounced dead. The decedent’s daughter and others sued the officers and the Las Vegas Metropolitan Police Department for violating their constitutional rights, including the Fourth Amendment right to be free from excessive force and the Fourteenth Amendment right to familial association. The district court denied defendants’ motion for summary judgment on the basis of qualified immunity. Affirming in part and reversing in part, the Ninth Circuit stated: “We hold that, construing the facts in the light most favorable to Plaintiffs, [the two officers] violated Scott’s Fourth Amendment rights. Because the applicable law was clearly established at the time of the incident, we affirm the denial of qualified immunity for Plaintiffs’ Fourth Amendment claim. As to Rochelle Scott’s Fourteenth Amendment claim, we hold that [the two officers] violated Rochelle Scott’s Fourteenth Amendment right to familial association, but that right was not yet ‘clearly established’ at the time of the violation. We thus affirm in part and reverse and remand in part.” (Scott v. Smith (9th. Cir., July 30, 2024) 2024 WL 3574971.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/30/23-15480.pdf

Plaintiff filed a complaint against a school district, alleging she was the victim of sexual assaults by a district employee when she was fourteen years old in 1979, and that the abuse continued until 1983. The district demurred, arguing that reviving a claim that was formerly barred for failure to satisfy the claim presentation requirement would constitute an unconstitutional gift of public funds. The trial court overruled the demurrer. The district requested extraordinary relief in the Court of Appeal. The appeals court noted that in 2019, the Legislature provided a three-year window within which plaintiffs were permitted to bring childhood sexual assault claims against public entities that would otherwise be barred because of statutes of limitations or the claim presentation requirements in AB 218 (2019). Declining to issue a writ of mandate, the appellate court stated: “AB 218’s waiver is not a gift of public funds, . . . . [¶] . . . [¶] . . . [R]etroactive waiver of the [government-claim] requirement does not ‘create any liability or cause of action against the state where none existed before’. [Citation.] [¶] . . . [¶] The District lacks standing to assert a due process challenge to AB 218 under either the federal or California Constitutions.” (West Contra Costa Unified School District v. Superior Court of Contra Costa County (Cal. App. 1st Dist., Div. 5, July 31, 2024) 2024 WL 3593932.)

https://www.courts.ca.gov/opinions/documents/A169314.PDF