Litigation Update: December 2019

Please share:
Action Alleging Bias by a School District Permitted to Continue in Trial Court.

Plaintiffs are parents, students, taxpayers, and community organizations who sued public entities and individuals contending a public school district disciplined minority students in a racially biased manner, denying equal protection to the minority students. The issue arose after the 2009 publication of a report by the U.S. Department of Education stating the school district had reported 2,205 expulsions, a rate of 54.47 per 1,000 students. The expulsion rate for White students was 18.70 per 1,000 students, the rate for Latino students was 65.85 per 1,000 students, and the rate for African-American students was 110.21 per 1,000 students. After publicity, the number dropped; by 2013, the total number of reported expulsions was 256. Plaintiffs contended the data still revealed racial bias:  African-American students were expelled at a rate of 24 per 1,000 students, compared to 7 per 1,000 students for Latinos, and 5 per 1,000 students for Whites. Moreover, 67% of expelled African-American students were expelled for offenses that did not include physical injury or possession of drugs or weapons, while only 42% of expelled Whites were expelled for those less serious offenses. The trial court sustained defendants’ demurrer and dismissed the action. The Court of Appeal affirmed in part and reversed in part, concluding that plaintiffs “have stated a claim under California’s equal protection clause utilizing a disparate impact theory and properly sought a writ of mandate based on the state-level defendants’ alleged failure to meet their federally mandated monitoring requirements.” (Collins v. Thurmond (Cal. App. 5th Dist., Nov. 4, 2019) 41 Cal.App.5th 879.)

The Wording in a Contract Means Something.

Plaintiff was the general contractor for constructing an apartment complex. Defendant was the subcontractor for the concrete work that quit halfway through the project. Plaintiff got another concrete subcontractor to finish the job. Before defendant quit, plaintiff had paid it 90 percent of its billings, withholding 10 percent, known as the retention sum. Defendant demanded it, but plaintiff kept it. Plaintiff and defendant sued each other over that 10 percent. The trial court granted summary judgment in favor of plaintiff, in effect permitting plaintiff to keep the retention. The relevant wording in the contract, the retention clause, stated: “Ten percent (10%) of Subcontractor’s contract amount shall be withheld and will be released 35 days after completion of subcontractors [sic] work.” The contract defined “SUBCONTRACTOR” as “Legendary Structures, Inc.,” defendant here. The Court of Appeal noted that defendant’s work was the entire concrete job, providing all the labor, materials, and equipment and ensuring the result was up to code and free of liens, which defendant never completed. The appeals court found the trial court’s granting the general contractor’s motion for summary judgment was correct and that the subcontractor was entitled to no further sums. (Regency Midland Construction, Inc. v. Legendary Structures Inc. (Cal. App. 2nd Dist., Div. 8, Nov. 7, 2019) 41 Cal.App.5th 994.)

Death Knell Doctrine.

Plaintiff filed a class action against her former employer, alleging various Labor Code violations. The trial court granted defendant’s motion to strike the class allegations, ruling that plaintiff was not an adequate class representative. The court granted plaintiff leave to amend to name a different class representative.  Instead of doing so, plaintiff filed an amended complaint reiterating the stricken class allegations. The court again struck those allegations. Plaintiff appealed from the second order. The Court of Appeal dismissed the appeal, stating: “[T]he order is not appealable under the death knell doctrine. This doctrine authorizes an interlocutory appeal of the first, but only the first, order in a case that extinguishes all of a plaintiff’s class claims. As a result, we do not address the merits of Williams’s contentions and instead dismiss the appeal.” (Williams v. Impax Laboratories, Inc. (Cal. App. 1st Dist., Div. 1, Nov. 8, 2019) 41 Cal.App.5th 1060.)

Tragedy Destroys Marriage.

A family suffered a horrible car accident when another driver ran a red light. The oldest child was killed. Another child, Si., suffered massive head injuries with major brain damage requiring constant medical attention and therapy. The family has two other children, Sa. and W. A legal action resulted in a large settlement to pay for needed medical care, but left a destroyed marriage. Si.’s parents were unable to agree on even the smallest of matters relating to her care. The family court awarded sole legal and physical custody of Sa. and W. to father. Explaining its reasons, the family court noted a time mother left Sa. in a dance workshop in Las Vegas when Si. had suffered a seizure while under the father’s care. The court stated: “At the first sign that [Si.] may have a problem [mother] abandons [Sa.].” The family court also found that Si.’s extraordinary emotional, medical, and educational needs created compelling circumstances requiring the court to separate the siblings for custody and visitation, even though neither parent requested separation of the children. On appeal, mother contended the court abused its discretion in finding that mother’s sole legal and physical custody of Si. rendered her incapable of maintaining joint legal and physical custody of her other two children. Reversing, the Court of Appeal agreed the family court abused its discretion, stating: “Tanya did not simply leave Sa. behind, or even make her miss her workshop. Instead, Tanya arranged for Sa. to be cared for and brought home by her trusted dance instructor. This isolated incident lends no support for the court’s conclusion Tanya is unable to maintain custody of Sa. and W. while she is the sole custodian of Si.” (In re Marriage of McKean (Cal. App. 4th Dist., Div. 3, Nov. 8, 2019) 41 Cal.App.5th 1083.)

Cert. Denied in Sandy Hook Case.

The petitioner seeking a writ of certiorari is a gun manufacturer. The respondents opposing the writ are family members of children and teachers slain at Sandy Hook Elementary School in 2014. The Protection of Lawful Commerce in Arms Act (15 U.S.C. §§ 7901-7903; PLCAA) preempts claims against manufacturers and sellers of firearms resulting from the criminal use of guns except for “action[s] in which a manufacturer or seller of a [firearm or ammunition] knowingly violated a State or Federal statute applicable to the sale or marketing of the product.” The Connecticut Supreme Court held that the PLCAA’s predicate exception encompasses all general statutes merely capable of being applied to firearms sales or marketing, an interpretation in contrast to that of two federal circuit courts. Petitioner contends the Connecticut Supreme Court’s decision is so broad it swallows the statute’s immunity to gun manufacturers. Respondent family members allege the gun manufacturer violated Connecticut’s Unfair Trade Practices Act when it marketed and promoted the Bushmaster XM15-E2S rifle for use in assaults against human beings. The U.S. Supreme Court denied the gun manufacturer’s petition for writ of certiorari. (Remington Arms Co., LLC v. Soto (U.S., Nov. 12, 2019) 2019 WL 5875142.)

What Is a Vehicle?

Defendant was convicted of unlawful taking or driving of a vehicle after the police were called to a business and found him driving a motorized device within the storage yard. The device is known as a “yard goat,” used to transport shipping containers. The business did not have a license for the device to be used on public streets. On appeal, defendant argued his conviction should be reversed because the motorized equipment does not qualify as a vehicle for purposes of Vehicle Code § 10851. Affirming the conviction, the Court of Appeal noted that “nothing in the record suggests that this device was incapable of being driven on a highway—whether lawfully or unlawfully—if a person chose to do so.” The appeals court also noted that Vehicle Code § 670 defines a vehicle as “a device by which a person or property may be propelled, moved, or drawn upon a highway.” (People v. Chubbuck (Cal. App. 4th Dist., Div. 2, Nov. 12, 2019) 41 Cal.App.5th 1106.)

Court of Appeal Modified the Definition of the Class and Ordered the Trial Court to Certify it.

Plaintiff, uninsured, received emergency care at defendant’s medical center. He signed an agreement to pay the hospital’s published rates, “unless other discounts apply.” After receiving an invoice for $23,487.90, which reflected the published rate of $31,359, less a $7,871.10 “uninsured discount,” plaintiff filed a class action lawsuit.  He alleged that the contract contained an “open price” term (Code Civ. Proc., § 1611), such that self-pay patients should be liable only for the reasonable value of the services provided, and alleged claims for unfair and/or deceptive business practices (Bus. & Prof. Code, § 17200) and violation of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.). Plaintiff moved for class certification of his cause of action for declaratory relief, which sought declarations that defendant’s practices were unfair, unconscionable, and/or unreasonable. Reversing the trial court’s denial of class certification, the Court of Appeal stated: “We exercise our inherent authority to modify the class definition . . . and limit[] it to uninsured individuals who, during the relevant time period, received emergency care at [defendant’s medical center] and who signed . . . the admissions contract and were thereafter directly billed for that treatment at [published] rates or [published] rates less the uninsured discount. As to that redefined class, we reverse in part the trial court’s order denying class certification and direct it to certify as a class issue whether [defendant’s] admissions contract contains an open price term, so that patients within the class are obligated to pay no more than the reasonable value of the services provided.” (Sarun v. Dignity Health (Cal. App. 2nd Dist., Div. 7, Nov. 12, 2019) 41 Cal.App.5th 1119.)

Disability Discrimination under FEHA.

Plaintiff’s job with defendant pharmaceutical company required him to drive to doctors’ offices to sell defendant’s products. When plaintiff developed an eye problem, his doctor ordered him not to work because he could not safely drive. Defendant’s reasonable accommodation policy listed “reassignment to a vacant position” as a potential accommodation. Thus, while on medical leave, plaintiff asked for help getting a new job within the company that did not require driving, and applied for several open positions.  Defendant never reassigned him.  Instead, a corporate benefits staffer fired him, mistakenly thinking that he had transitioned from short-term disability to long-term disability and was unable to work with or without an accommodation. Plaintiff sued defendant under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA). The trial court granted defendant’s motion for summary adjudication of four causes of causes of action: disability discrimination, retaliation, failure to prevent discrimination, and wrongful termination in violation of public policy. The Court of Appeal granted plaintiff’s petition for writ of mandate, stating: “[Defendant] has not articulated a legitimate nondiscriminatory reason for [plaintiff’s] termination.” Additionally, “even a legitimate company policy, if mistakenly applied, may engender FEHA disability discrimination liability.”  (Glynn v. Superior Court (Cal. App. 2nd Dist., Div. 4, Nov. 13, 2019) 42 Cal.App.5th 47.)

California Supreme Court Answers Ninth Circuit’s Question About Compound Interest.

Between 1967 and 1976, plaintiff applied for four permanent life insurance policies from defendant life insurance company. The applications stated that policyholders could take out loans secured by the cash value of the policies, but did not disclose that defendant would charge compound interest on those loans. After plaintiff submitted each signed application, defendant sent him the requested policy. Each stated that “[t]his policy and the application, a copy of which is attached when issued, constitute the entire contract.” The policies explained that loan interest would be compounded annually, but plaintiff was not required to sign and return any copy of the policies. Plaintiff subsequently took out four loans secured by his policies. Defendant assessed compound interest on the loan balances. Plaintiff filed a putative class action suit in state court alleging defendant’s assessment of compound interest was barred because he never signed an agreement to that effect. Defendant removed the action to federal district court and moved to dismiss. It argued that, as a lender exempt from the usury mandate set forth in the state Constitution (Cal. Const., art. XV, § 1), it was not required to obtain a borrower’s signed consent to charge compound interest. The federal district court denied the dismissal motion, holding that defendant was required to get signed consent and failed to do so. The Ninth Circuit Court of Appeals asked the following question of the California Supreme Court pursuant to California Rules of Court, rule 8.548(a): “Are exempt lenders like [defendant] required to obtain a borrower’s signed agreement in order to charge compound interest on a loan?” The California Supreme Court’s answer was: “We conclude the lenders are not so obligated.” (Wishnev v. The Northwestern Mutual Life Ins. Co. (Cal., Nov. 14, 2019) 8 Cal.5th 199.)

Relation Back in Federal Court.

Plaintiff timely filed her complaint alleging discrimination, but mistakenly named the wrong federal agency and the wrong supervisor. After the limitations period expired, the agency she mistakenly named moved to dismiss. The federal district court dismissed the case. Reversing, the Ninth Circuit found plaintiff was entitled to relation back pursuant to Federal Rule of Civil Procedure 15(c)(2). (Silbaugh v. Chao (9th Cir., Nov. 14, 2019) 942 F.3d 911.)

Failure to Pay Transfer Fees After Granting of Motion to Transfer.

A law school sued a woman for nonpayment of student loans. Defendant successfully moved to transfer venue from Los Angeles County to Ventura County. Although served with a minute order indicating the motion was granted, plaintiff did not pay the costs and fees within 30 days, and the case remained in Los Angeles County. The trial court denied defendant’s motion to dismiss, the matter proceeded to trial, and the court entered judgment against defendant. Reversing, the Court of Appeal stated: “When a case is transferred because venue is proper in a different court, the plaintiff is responsible for paying the transfer costs and fees, and the case is subject to dismissal if there is no payment within 30 days of ‘service of notice of the transfer order.’ (Code Civ. Proc., § 399, subd. (a).) We hold the mailing of a minute order to the parties stating a transfer motion was granted is sufficient to provide service of notice, subjecting the action to dismissal due to nonpayment of the costs and fees.” (Southwestern Law School v. Benson (L.A. Super. Ct., App. Div., Oct. 25, 2019) 42 Cal.App.5th Supp. 1.)

Reasonable Licensee Defense

Plaintiff owned a residence licensed as a “long-term health care facility” under the Long-Term Care, Health, Safety, and Security Act of 1973 (Health & Saf. Code, § 1417 et seq.). Defendant Department of Public Health issued a citation and imposed a civil penalty in connection with the death of a patient at the facility. The trial court found that plaintiff had established a reasonable licensee defense, i.e. that it “did what might reasonably be expected of a long-term health care facility licensee, acting under similar circumstances, to comply with the regulation[s].” (Health & Saf. Code, § 1424, subd. (c).) On appeal, defendant argued that the defense was available only in the event of an “emergency” or “special circumstances.” Affirming, the Court of Appeal rejected the “emergency” or “special circumstance” argument.  It agreed with the trial court finding the facility “ ‘did what might reasonably be expected of a long-term health care facility licensee, acting under similar circumstances, to comply’ with the regulations that the Department cited [plaintiff] with violating.” (RSCR Inland, Inc. v. State Dept. of Public Health (Cal. App. 4th Dist., Div. 2, Nov. 15, 2019) 42 Cal.App.5th 122.)

Vicarious Liability.

Petitioner’s employee, a maintenance worker at a rural camp, removed a burning log from a fireplace after a chimney malfunctioned. He carried the log outside, and its embers fell onto dry vegetation, igniting a major fire. Respondent spent more than $12 million to fight the fire and investigate its cause. Respondent sued petitioner. Relying on Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, the owner of the campsite demurred. The Howell majority concluded that corporations cannot be held liable for the costs of suppressing and investigating fires their agents or employees negligently set, allow to be set, or allow to escape, explaining that Health and Safety Code §§ 13009 and 13009.1 do not provide for vicarious liability. Denying the petition for writ of mandate, the Court of Appeal split with Howell and “conclude[d] that sections 13009 and 13009.1 include principles of vicarious corporate liability.” (Presbyterian Camp & Conference Centers, Inc. v. Superior Court (Cal. App. 2nd Dist., Div. 6, Nov. 18, 2019) 42 Cal.App.5th 148.)

Interlocutory Order Not Appealable.

In a class action by tenants against a landlord, the trial court found releases of claims signed by several tenants to be invalid. On appeal, the landlord argued that the trial court’s order was appealable as an injunctive order within the meaning of Code of Civil Procedure § 904.1, subdivision (a)(6) because the order mandates certain actions on its part with respect to the class members. Dismissing the appeal, the Court of Appeal concluded it was a standard interlocutory order for which there is no appeal. (Brown v. Upside Gading, LP (Cal. App. 1st Dist., Div. 3, Nov. 18, 2019) 42 Cal.App.5th 140.)


In a medical malpractice action, the jury found defendant breached the duty of care but the breach did not cause plaintiff’s injury. On appeal, plaintiff contended the trial court erred in denying its own sua sponte Batson/Wheeler [Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258] motion made after defense counsel exercised peremptory challenges to six prospective Hispanic jurors out of his seven total challenges. Plaintiff argued the trial court erred in not requiring defense counsel to offer nondiscriminatory reasons for his first four challenges, which formed the basis of the court’s prima facie finding of racial bias. The Court of Appeal conditionally reversed the judgment and remanded the matter to the trial court with instructions “to conduct a complete second and third stage Batson/Wheeler analysis. On remand, the trial court is to elicit defense counsel’s justifications for the peremptory challenges to [the four] prospective jurors . . . , then make a sincere and reasoned evaluation of those explanations. If the court finds, because of the passage of time or other reason, it is unable to conduct the evaluation, or if any of the challenges to the six Hispanic prospective jurors were based on racial bias, the court should set the case for a new trial. If the court finds defense counsel’s race-neutral explanations are credible and he exercised the six peremptory challenges in a permissible fashion, the court should reinstate the judgment.” (Unzueta v. Akopyan (Cal. App. 2nd Dist., Div. 7, Nov. 18, 2019) 42 Cal.App.5th 199.)

Surface Rights and Mineral Rights.

A county approved a new zoning ordinance requiring permits for new oil and gas exploration, drilling, and production. The ordinance also provided two procedural pathways for obtaining permits when the proposed activity would be conducted on split-estate land (i.e., where the surface rights and mineral rights are held by different owners). An expedited pathway is available to applicants who obtain the surface owner’s written consent; a longer and more expensive pathway must be used when the applicant has not obtained the surface owner’s consent. Plaintiff, an oil company, contended the ordinance violates its due process and equal protection rights. The trial court rejected the constitutional challenge.  On appeal, plaintiff argued that the ordinance violates procedural due process by improperly delegating local government authority over land use permits to surface owners of split-estate lands. Affirming, the Court of Appeal concluded the resolution of plaintiff’s due process claim turns on the amount and type of control given to surface owners under the ordinance and whether their failure to give consent is final, and that the county’s delegation of some control to the surface owners does not give them final authority to determine how the oil and gas operator will use its mineral rights. (Vaquero Energy, Inc. v. County of Kern (Cal. App. 5th Dist., Nov. 19, 2019) 2019 WL 6124767.)

Attorney Fees Granted Under Two Separate Statutes.

A newspaper sought records from a water district under the California Public Records Act (Gov. Code, § 6250 et seq.; CPRA). The trial court ordered production of the records and then awarded the newspaper $25,319 in attorney fees against the water district under CPRA. The trial court also awarded the newspaper $136,645.82 in attorney fees against the intervenors under Code of Civil Procedure § 1021.5. Affirming, the Court of Appeal concluded that the newspaper “was eligible for attorney fees under CPRA for work on the CPRA cross-petition and for attorney fees under Code of Civil Procedure section 1021.5 for its work opposing the petition for writ of mandate.” (City of Los Angeles v. Metropolitan Water District of Southern California (Cal. App. 2nd Dist., Div. 8, Nov. 19, 2019) 2019 WL 6123675.)

Appeal from Denial of Reconsideration Treated as a Writ Petition.

The trial court denied defendants’ motion for reconsideration of a motion to dissolve an injunction. Defendants appealed from the denial of reconsideration, even though such orders are not appealable. Rather than dismiss the appeal, the Court of Appeal treated it as a petition for writ of mandate, explaining: “This case . . . presents a relatively unusual procedural situation because it is unclear when or if appellants will be able to challenge the trial court’s ruling from a later appealable order or judgment.” (Global Protein Products, Inc. v. Le (Cal. App. 6th Dist., Nov. 20, 2019) 2019 WL 6167395.)

Denial of Petition for Administrative Mandate Affirmed.

A private hospital revoked a doctor’s staff privileges. The trial court denied the doctor’s petition for writ of administrative mandate to overturn the hospital’s decision. On appeal, the doctor argued that he was denied procedural due process and that the hearing officer was biased. Affirming, the Court of Appeal stated: “[W]here the peer review process of a private institution is involved, we are concerned only with the principles under common law of fair procedure and not the constitutional prescriptions of due process (which apply only to public entities).” The court also concluded that the doctor had not established a direct financial interest on the part of the hearing officer that would justify setting aside the hospital’s decision. (Natarajan v. Dignity Health (Cal. App. 3rd Dist., Nov. 20, 2019) 2019 WL 6167885.)

Oil and Gas Royalties.

In 1939, a property owner leased oil and gas rights to an oil company. At some point, the surface owner of a portion of the property did not pay the tax bill and the county took the property and sold it to its present owner. The present owner claimed a right to the oil and gas royalties. The trial court concluded that the owner of the surface lot does not own an interest in the oil and gas under it. Affirming, the Court of Appeal stated: “A tax sale of real property described in the deed as pertaining to surface rights does not include oil and gas rights which are ‘restrictions of record’ in a previously recorded oil and gas lease.” But the appellate court also ordered that the judgment be modified to state that the surface owner has an interest in the oil and gas when the lease expires. (Leiper v. Gallegos (Cal. App. 2nd Dist., Div. 6, Nov. 20, 2019) 2019 WL 6166276.)

Plaintiffs Got What They Paid for.

Manny Pacquiao and Floyd Mayweather squared off at the MGM Grand Garden Arena in Las Vegas on May 2, 2015. After twelve rounds, Mayweather was declared the winner against “underdog” Pacquiao in a unanimous decision. During the post-fight press conference, Pacquiao revealed that he had injured his right shoulder in training camp nearly a month before. Plaintiffs in numerous jurisdictions seized on the injury disclosure and filed putative class-action complaints. They alleged that Pacquiao was “damaged goods,” the fight was a “magnificent con,” and they would not have purchased tickets had they known of the injury. The district court dismissed the complaints, holding that plaintiffs had not suffered a cognizable legal injury. Affirming, the Ninth Circuit stated: “[A]lthough the match may have lacked the drama worthy of the pre-fight hype, Pacquiao’s shoulder condition did not prevent him from going the full twelve rounds, the maximum number permitted for professional boxing contests. . . . Plaintiffs therefore essentially got what they paid for—a full-length regulation fight between these two boxing legends.” (In re Pacquiao-Mayweather Boxing Litigation (9th Cir., Nov. 21, 2019) 2019 WL 620694.)

Presidential Candidates Need Not File Tax Returns with California Secretary of State to Appear on State Ballot.

The California Republican Party and its chair petitioned for a writ of mandate against California’s Secretary of State. At issue was whether provisions of the Presidential Tax Transparency and Accountability Act (Elec. Code, § 6880 et seq.) conflict with article II, section 5(c) of the California Constitution. The act’s provisions prohibit the Secretary of State from printing on a primary election ballot the name of a candidate for President of the United States who has not filed with the Secretary of State the candidate’s federal income tax returns for the five most recent tax years. The California Supreme Court granted the petition, stating: “We direct the Secretary of State to refrain from enforcing Elections Code sections 6883 and 6884, the relevant provisions of the Act, insofar as enforcement of these sections would keep the name of a ‘recognized candidate[] throughout the nation or throughout California for the office of President of the United States’ from being printed on the ballot of a political party that has qualified to participate in the primary election.” The Court noted: “The Legislature may well be correct that a presidential candidate’s income tax returns could provide California voters with important information. But article II, section 5(c) embeds in the state Constitution the principle that, ultimately, it is the voters who must decide whether the refusal of a ‘recognized candidate[] throughout the nation or throughout California for the office of President of the United States’ to make such information available to the public will have consequences at the ballot box.” (Patterson v. Padilla (Cal., Nov. 21, 2019) 2019 WL 6207611.)

Union May Seek to Represent Employees of Private Employer Under Contract With Public Entity.

A union sought to represent employees of private medical clinics under contract with a county medical center. The county refused to process the union’s petition to represent the employees because private corporations and not the county were the sole employers. The union filed an unfair practice claim pursuant to Government Code § 3500 et seq. An administrative law judge found for the county. The Public Employment Relations Board reversed, finding that the county was a single employer, or, in the alternative, a joint employer of the employees. The county sought extraordinary relief. The Court of Appeal found that substantial evidence supported the finding that the county retained the right to control the manner and method of work and was a joint employer. (County of Ventura v. Public Employment Relations Board (Cal. App. 2nd Dist., Div. 6, Nov. 21, 2019) 2019 WL 6206916.)

Religious Freedom Restoration Act of 1993.

Muslim men brought an action alleging that senior law enforcement officials retaliated against them for refusing to serve as informants by placing their names on the No Fly List in violation of the Religious Freedom Restoration Act (42 U.S.C. § 2000bb et seq.; RFRA) and the First Amendment. A federal district court dismissed the claim. The Second Circuit reversed, stating: “Because we disagree with the district court, and hold that RFRA permits a plaintiff to recover money damages against federal officers sued in their individual capacities for violations of RFRA’s substantive protections, we reverse the district court’s judgment and remand for further proceedings.” The U.S. Supreme Court granted a petition for writ of certiorari filed by the U.S. Solicitor General, which described the issue as follows: “Whether the Religious Freedom Restoration Act of 1993 . . . permits suits seeking money damages against individual federal employees.” (Tanzin v. Tanvir (U.S., Nov. 22, 2019) 2019 WL 6222538.)

Anti-Slapp Plus a Lesson in Civility.

Defendant posted a comment on Facebook stating, among other things, that plaintiff was indicted, was a convicted criminal, and had stolen thousands of identities. Plaintiff sued defendant for defamation and intentional interference with prospective economic advantage. Defendant filed a special motion to strike the complaint under Code of Civil Procedure § 425.16. The trial court struck the intentional interference with prospective economic advantage claim, but not the defamation claim. Affirming, the Court of Appeal stated, “We conclude alleged widespread, criminal identity theft is a matter of public interest,” and “[plaintiff] has demonstrated her defamation claim has ‘at least “minimal merit” ’ and therefore, should not be stricken.” The opinion continued under the subheading, “A Note on Civility, Sexism, and Persuasive Brief Writing.” The court quoted language from defendant’s appellate brief describing the trial judge as “ ‘an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench.’ ” The brief stated, “ ‘With due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!’ ” The Court of Appeal stated that the language was “highly inappropriate,” “reflects gender bias and disrespect for the judicial system,” and was “sexist.” (Briganti v. Chow (Cal. App. 2nd Dist., Div. 4, Nov. 22, 2019.) 2019 WL 6242111)

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

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


The California Supreme Court stated the question is limited to whether the trial court should have reconsidered its initial ruling after a defendant settled out of the case. Reversing the judgment of the Court of Appeal, California’s high court concluded the trial court did not err by declining to reconsider its ruling after the settlement. (Chen v. Los Angeles Truck Centers, LLC (Cal., Jul. 22, 2019) 7 Cal.5th 862.)

The latest:

On remand from the California Supreme Court, the Court of Appeal changed its previous opinion, stating: “We have reconsidered our earlier analysis of California’s interest in applying its products liability law in a case where there are no California plaintiffs and no one sustained injuries in California. We now find that under those circumstances, California’s interest in applying its law is hypothetical, since no actual harm occurred in California giving rise to an interest to deter conduct or compensate victims. Plaintiffs’ assertion that Indiana had ‘no interest’ in having its products liability law applied is mistaken, as is demonstrated by Indiana’s high court precedents. Because Indiana had a real interest in applying its law, and California’s interest was only hypothetical, there was no true conflict. Even if there were a true conflict, we would be required to conclude, under the governmental interest test, that Indiana law applies because its interest would be more impaired if its policy were subordinated to the policy of California. Therefore, the trial court correctly applied Indiana products liability law. Accordingly, we affirm the judgment.” (Chen v. Los Angeles Truck Centers, LLC (Cal. App. 2nd Dist., Div. 8, Nov. 22, 2019) 2019 WL 6242110.)

Congress and the President.

The U.S. House of Representatives Committee on Oversight and Reform issued a subpoena to President Donald Trump’s long-time accountant, Mazars USA, LLP. A federal district court granted enforcement of the subpoena. The Trump applicants appealed to the D.C. Circuit, and the committee agreed to a stay pending appeal, in exchange for expedited briefing and argument. The D.C. Circuit panel upheld the validity of the committee’s subpoena, and the court voted 8-3 to deny rehearing en banc. On November 25, 2019, the U.S. Supreme Court issued the following order: “The issuance of the mandate of the United States Court of Appeals for the District of Columbia Circuit, case No. 19-5142, is stayed pending the filing and disposition of a petition for a writ of certiorari, if such petition is filed on or before December 5, 2019, by noon. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the judgment of this Court. If no petition for a writ of certiorari is filed on or before December 5, 2019, by noon, the stay shall terminate.” (Trump v. Mazars USA, LLP (U.S., Nov. 25, 2019) 2019 WL 6328115.)

Supreme Court Remands Case to Ninth Circuit to Reconsider Decision Upholding Law Limiting Political Contributions.

Alaska law limits individual contributions to a candidate for political office or to an election-oriented group other than a political party. Petitioners each contributed the $500 limit, but wanted to contribute more. They sued state officials, contending the limits violate the First Amendment. A federal district court upheld the contribution limits, and the Ninth Circuit affirmed. The U.S. Supreme Court noted that the Ninth Circuit declined to apply Randall v. Sorrell (2006) 548 U.S. 230, which invalidated a Vermont law that limited political contributions. The Supreme Court vacated the Ninth Circuit’s opinion and remanded the matter to the appeals court “to revisit whether Alaska’s contribution limits are consistent with our First Amendment precedents.” (Thompson v. Hebdon (U.S., Nov. 25, 2019) 140 S.Ct. 348.)

Serial Podcast Subject’s Certiorari Petition Denied.

A convicted murderer contended his trial counsel was ineffective because she did not properly investigate and present a potential alibi witness. Post-conviction courts in Maryland and the Maryland Court of Special Appeals granted a new trial. The Maryland Court of Appeals reversed the new trial order, finding trial counsel was ineffective, but four of the seven judges found that counsel’s deficient performance did not create a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” The U.S. Supreme Court denied certiorari. (Syed v. Maryland (S. Ct., Nov. 25, 2019) 2019 WL 6257419.)

City Scheme.

After the abolishment of redevelopment agencies (RDA) in the City of Anaheim, various issues arose, including the pension and retiree medical costs for eight city employees who performed work for the RDA. The city and the RDA agreed that the RDA would bear the compensation costs of city employees performing RDA work based on the percentage of time performing those duties. The city then sought those pension and medical costs from the California Department of Finance. The trial court denied the city’s request, noting the city’s only authority was a footnote citing cases involving the liability of joint employers. The Court of Appeal agreed and affirmed, stating: “The City fails to provide any authority remotely suggesting that there is some extracontractual duty on the part of the Anaheim RDA to the City of Anaheim’s employees for the payment of retirement costs.” (City of Anaheim v. Bosler (Cal. App. 3rd Dist., Nov. 25, 2019) 2019 WL 6270841.)

Contracts Can Allocate Risk.

Defendant, a storage company, delivered a storage vault to plaintiffs for their move. Plaintiffs filled the vault with items, including a washing machine, without assistance from defendant. The contract between the two stated in part: “TENANTS STORE PROPERTY AT THEIR RISK,” and, “WATER DAMAGE. THESE SELF STORAGE UNITS ARE NOT WATERPROOF WHEN AT YOUR RESIDENCE! IT IS POSSIBLE FOR THE CONTENTS TO BE WATER DAMAGED IF THERE IS ANY RAIN. YOU MUST COVER THE UNITS WITH PLASTIC TARPS TO PROTECT YOUR GOODS. AT YOUR DOOR SELF STOR IS NOT RESPONSIBLE FOR ANY WATER DAMAGE.” Defendant offered insurance, but plaintiffs declined. Plaintiffs sued after their property suffered, including a washing machine, water damage. When asked if they dried out the washing machine before storing it, one plaintiff testified that the washer was “ ‘just transported from the garage.’ ” The trial court granted defendant’s motion for summary judgment. Affirming, the Court of Appeal stated: “[Defendants] did not breach the contract . . . because the contract specified [defendant] was not liable for water damage.” (Kanovsky v. At Your Door Self Storage (Cal. App. 2nd Dist., Div. 8, Nov. 25, 2019) 2019 WL 6270806.)

Denying Request Without Taking Evidence.

In a postjudgment proceeding, a former husband requested termination of spousal support. The trial court refused to hear any evidence and denied his request. Reversing, the Court of Appeal stated: “The issue here is not whether the trial court had discretion to refuse to hear oral evidence; the issue is that the trial court denied Richard’s request without taking any evidence. This was an abuse of the court’s discretion.” (In re Marriage of Pasco (Cal. App. 3rd Dist., Nov. 25, 2019) 2019 WL 6270831.)

Trying to Prove Product Used Decades Ago Caused Plaintiff’s Cancer.

Plaintiff and his wife sued defendant after he developed mesothelioma, contending defendant’s shave talc caused his cancer. Plaintiff alleged he used four to six containers of the talc when he was a teenager in the late 1950s and early 1960s. Defendant moved for summary judgment. In opposition to the motion, plaintiff submitted a geologist’s declaration that stated in part, “the primary supplier of talc to Mennen was Whittaker Clark & Daniels, a company that sourced talc from both Italy and North Carolina.” He explained that talc mines in these locations “have been historically contemporaneously found to have been contaminated with asbestos” and continue to contain asbestos. He asserted that Food and Drug Administration tests from 1972 showed defendant’s talc contained four percent chrysotile asbestos, and its 1976 testing showed defendant’s talc contained two percent tremolite asbestos. The trial court granted defendant’s summary judgment motion.  Affirming, the Court of Appeal stated plaintiff’s expert testimony “falls short of establishing that any containers of Mennen Shave Talc sold between 1959 and 1961 or 1962 contained asbestos, much less that it is more likely than not that the containers [plaintiff] used contained asbestos.” (Berg v. Colgate-Palmolive Company (Cal. App. 1st Dist., Div. 1, Oct. 28, 2019) 2019 WL 6318600.)

“Death is Not the End. There Remains the Litigation over the Estate,” Ambrose Bierce.

Prior to his death, a man left conflicting instructions. In a joint bank account, he expressly gave the right of survivorship to the account to one of his daughters. But in his will, he clearly stated he wanted the proceeds of the account to go to the trust for the benefit of all three of his daughters. The trial court ordered the one daughter to account to the trust the funds from the bank account. The daughter appealed. Two statutes bear on the question. Probate Code § 5302 provides that a joint account entails a right of survivorship “unless there is clear and convincing evidence of a different intent.” Probate Code § 5303 provides a specific method to change the terms of an already-established bank account, a method not followed by decedent when he wrote his will after establishing the bank account. The Court of Appeal harmonized the statutes, stating that the purpose of the specific method to change the terms of a bank account is to immunize the financial institution. Thus, the appeals court affirmed, concluding, “the financial institution was correct to pay the funds to [the one daughter] pursuant to the express terms of the account, but the beneficial owner of those funds is [decedent’s] estate.” (Placencia v. Strazicich (Cal. App. 4th Dist., Div. 3, Nov. 26, 2019.) 2019 WL 63220219.)

Legal Referral Service.

Cross-complainant is a lawyer. Cross-defendant is an online service company that connects individuals seeking legal assistance to lawyers who have a subscription with cross-defendant. Cross-defendant sued cross-complainant for alleged failure to pay the subscription charge. Cross-complainant contends cross-defendant is operating an uncertified lawyer referral service in violation of Business and Professions Code § 6155, rendering the subscription contract illegal and unenforceable. That statute sets requirements for a lawyer referral service. The trial court held in favor of cross-defendant. Reversing, the Court of Appeal stated: “The trial court determined LegalMatch does not operate for the direct or indirect purpose of referring potential clients to attorneys. It reached this conclusion without explanation (but presumably in reliance on its view that engaging in ‘referral activity’ requires an entity to exercise legal judgment before directing a client to an attorney) . . .  we conclude as a matter of law that LegalMatch operates for the ‘direct or indirect purpose, in whole or in part, of referring clients to attorneys.’ ” Because the trial court did not decide cross-defendant’s contention that cross-complainant had unclean hands, the matter was remanded. (Jackson v. (Cal. App. 1st Dist., Div. 4, Nov. 27, 2019) 2019 WL 6334544.)

Psychotherapist-patient Privilege.

A man was charged with gross vehicular manslaughter while intoxicated. The man told police he was under the care of a psychotherapist who prescribed him certain antidepressant and antipsychotic medications. The prosecution subpoenaed the psychotherapist’s records. The man moved to quash the subpoenas based on the psychotherapist-patient privilege found in Evidence Code § 1014. The prosecution argued that the privilege was waived by the man’s disclosures to law enforcement. The trial court found a waiver, denied the man’s motion, and said the court would review the records in camera to determine whether the therapist discussed the effect of the medications on the patient’s driving. The man sought extraordinary relief. Granting the requested relief, the Court of Appeal noted the psychotherapist-patient privilege is broader than other privileges, but said that once the person claiming the privilege establishes the preliminary facts of a psychotherapist-patient relationship, the burden shifts to the opponent of the privilege to either (1) rebut the statutory presumption of confidentiality; (2) show that the privilege has been waived under § 912 [the holder of the privilege waives it in disclosing a significant part of the communication or consented to disclosure]; or (3) show that the material sought falls within the exceptions codified in §§ 1016 through 1027 [an issue involving the mental/emotional condition has been tendered by the patient; the psychotherapist concludes the patient is a danger to self or others]. Here, the appellate court determined the man did not disclose a significant part of his communications with the psychotherapist when he told the police about his medications and, thus, did not waive the privilege. The appeals court concluded the prosecution did not establish any exception to the privilege and the patient did not waive it. (Fish v. Superior Courtof San Diego County (Cal. App. 4th Dist., Div. 1, Nov. 27, 2019) 2019 WL 6337434.)

Right to a Jury Trial.

A tenant was sued by her landlord. A self-represented litigant, she requested a jury trial, but appeared on the day of trial without complying with a standing order of the court requiring preparation of jury instructions and other documents. The trial court found the tenant waived her right to a jury trial by not complying with the order. Following a court trial, judgment was entered for the landlord. The appellate division of the superior court reversed, stating: “Code of Civil Procedure section 631, subdivision (f) sets forth the exclusive grounds for a jury waiver, and failure to prepare for trial is not listed. Showing up unprepared may subject a party to monetary sanctions, but it does not constitute a waiver of the right to jury, and a court has no power under these circumstances to refuse to conduct a jury trial.” (Chen v. Lin (L.A. Sup. Ct. App. Div., Nov. 27, 2019) 2019 WL 6341283.)

“Everybody, soon or late, sits down to a banquet of consequences,” Robert Louis Stevenson.

A prior owner of property may be required to participate in the cleanup of wastes discharged from its property that resulted in ground water contamination under Water Code § 13304 if the owner “caused or permitted” the discharge. A Regional Water Quality Control Board named plaintiff in a cleanup order that addressed waste discharges from dry cleaning operations at a shopping center owned by plaintiff in the 1960’s and 1970’s. The trial court concluded that the Water Board erred by including plaintiff in its order. Reversing, the Court of Appeal said with regard to the knowledge component of “caused or permitted,” and with regard to plaintiff’s contention that even if it is subject to the order, its liability was discharged when it went through bankruptcy in 2000: “As to the knowledge component of ‘permitted,’ we adopt a standard that focuses  on the landlord’s awareness of a risk of discharge: a prior owner may be named in a section 13304 cleanup order upon a showing the owner knew or should have known that a lessee’s activity created a reasonable possibility of a discharge of wastes into waters of the state that could create or threaten to create a condition of pollution or nuisance . . .  We further conclude that, even assuming the Regional Board’s entitlement to a cleanup order was a claim within the meaning of bankruptcy law, it was not discharged in UATC’s bankruptcy proceeding because it did not arise before confirmation of reorganization.” (United Artists Theatre Circuit, Inc. v. Regional Water Quality Control Board (Cal. App. 1st Dist., Div. 5), Nov. 27, 2019) 2019 WL 6337763.)

Forgot Password

Enter the email associated with you account. You will then receive a link in your inbox to reset your password.

Personal Information

Select Section(s)

CLA Membership is $99 and includes one section. Additional sections are $99 each.