A monthly publication of the Litigation Section of the California Lawyers Association.
- Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
- Managing Editor, Julia C. Shear Kushner
- Editors, Dean Bochner, Jonathan Grossman, Jennifer Hansen, Gary A. Watt, David Williams, Ryan Wu
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.)
Same Plaintiff. Same Arbitration Agreement. Two Different Judges. Two Different Rulings.
In Mills I, the trial court granted an employer’s motion to compel arbitration in a disability discrimination action brought by plaintiff Mills, after concluding the substantively unconscionable terms in the arbitration agreement could be severed from the agreement. In Mills II, the case at issue here, the same plaintiff brought different claims against the same employer, but received a different judge. Plaintiff alleged various Labor Code violations, including a claim under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). The employer moved to compel arbitration under the same arbitration agreement. This time, the new judge denied the motion, finding unconscionability permeated the arbitration agreement because it had a low to moderate level of procedural unconscionability and at least six substantively unconscionable terms, making severance infeasible. On appeal, the employer contended claim and issue preclusion required the trial court in the new action to enforce the arbitration agreement. Affirming the denial of the motion to compel arbitration, the Court of Appeal held that the first judge’s ruling in Mills I was not final “so claim and issue preclusion d[id] not apply.” The employer also argued that the agreement was not unconscionable and that, even if it is, the trial court abused its discretion in not severing the unconscionable portions of it. In rejecting both of these arguments, the appeals court stated: “We agree with the trial court the arbitration agreement is permeated with unconscionability, and the court cannot simply sever the offending provisions. Rather, the court would need to rewrite the agreement, creating a new agreement to which the parties never agreed.” (Mills v. Facility Solutions Group, Inc. (Cal. App. 2nd Dist., Div. 7, Nov. 1, 2022) 84 Cal.App.5th 1035.)
Good Cause to Vacate Revocation of Club’s Liquor License After Failure to Respond to Accusation of Violations.
Following a visit from undercover agents, the Department of Alcoholic Beverage Control issued a 40-count accusation against a nightclub, including violations for consuming alcohol in unlicensed areas; employees exposing their genitalia and performing simulated sex acts; furnishing cocaine and drug paraphernalia to club patrons; soliciting the purchase of alcohol for their own consumption; and smoking or ingesting cannabis on the premises. The club’s owner failed to respond to the accusation (which was served by certified mail) and the Department revoked petitioner’s liquor license following default. The club moved to vacate the default shortly thereafter—arguing that it had not received the accusation in the first instance. The motion was denied, and an appeal to the Alcoholic Beverage Control Appeals Board which affirmed the trial court’s denial. The club then petitioned for a writ of mandate directing the Appeals Board and Department to reverse their decisions. Granting the writ, the Court of Appeal acknowledged the accusation was properly served, but stated: “[G]ood cause exists if the licensee merely failed to receive the accusation; there is no requirement that the respondent show the accusation was not properly served. (Gov. Code, § 11520, subd. (c).)” (GC Brothers Entertainment LLC v. Alcoholic Beverage Control Appeals Bd. (Cal. App. 2nd Dist., Div. 1, Nov. 1, 2022) 84 Cal.App.5th 1019.)
Miss United States of America Pageant Cannot Be Compelled to Include Transgender Woman.
Plaintiff, “who self-identifies as an openly transgender female,” sued the Miss United States of America pageant, alleging that the pageant’s “‘natural born female’” eligibility requirement violates the Oregon Public Accommodations Act. The district court granted the pageant’s motion for summary judgment, holding that the First Amendment protects the pageant’s expressive association rights to exclude a person who would impact the group’s ability to express its views. Plaintiff appealed. On appeal, the pageant argued that the “point of the pageant’s message is to celebrate what the pageant sees as the ideal womanhood or femininity.” The Ninth Circuit agreed with the district court’s ruling, but for different reasons. The appeals court based its ruling, not on the First Amendment’s protection of freedom of association, but rather under the First Amendment’s protection against compelled speech, explaining: “Green seeks to use the power of the state to force Miss United States of America to express a message contrary to what it desires to express.” (Green v. Miss USA, LLC (9th Cir., Nov. 2, 2022) 52 F.4th 773.)
State Hospital Immune from Plaintiff’s Claims of Sexual Abuse.
Jane Doe alleged that an employee of the State Department of State Hospitals sexually abused her when Doe was a minor and ward of the state. Doe sued the Department, asserting various causes of action, including negligence, sexual battery, assault, and statutory civil rights violations. The trial court overruled the state’s demurrer, and the state petitioned the Court of Appeal for a writ of mandate. Issuing the writ, the appeals court stated: “Doe’s complaint is barred by the Department’s immunity under Government Code section 854.8, subdivision (a)(2).” The broad language of that section “means that a public entity generally cannot be directly sued for negligence or other torts committed by its employees that injure an inpatient at a mental institution.” The only exceptions to this immunity were not implicated by Doe’s complaint. (State Dept. of State Hospitals v. Superior Court (Cal. App. 1st Dist., Div. 5, Nov. 2, 2022) 84 Cal.App.5th 1069.)
Injunction Upheld in Cases Involving Special Immigrant Juveniles.
Plaintiffs challenged delays by the United States government in adjudicating petitions for Special Immigrant Juveniles (SIJ) status. The SIJ program provides certain immigrant juveniles a pathway to lawful permanent residence status. Under 8 U.S.C. § 1232(d)(2), applications for SIJ status “shall be adjudicated” not later than 180 days after they are filed. As of September 24, 2018, there was a backlog of 32,518 SIJ petitions, 23,589 of which had been pending for more than 180 days. The district court held that the delays were unlawful, and the government did not challenge that holding on appeal. The only dispute was whether the lower court erred, after granting summary judgment to the plaintiffs, by issuing a permanent injunction and in crafting its terms and scope. The injunction held the government strictly to the 180-day deadline but permitted SIJ petitioners in certain circumstances to “toll” the deadline to respond to a request for evidence or a notice of intention to deny sent by the government. Affirming in part, and reversing and remanding in part, the Ninth Circuit stated: “We affirm the district court’s issuance of the permanent injunction and, in part, affirm the injunction’s scope and terms. But because the injunction’s tolling provision is not narrowly tailored to remedying irreparable harm, does not contemplate [the government’s] relevant regulations, and reflects a failure to measure the parties’ proposed tolling provisions each by the same standard, we vacate the tolling provision and remand to the district court for further proceedings consistent with this opinion.” (Galvez v. Jaddou (9th Cir., Nov. 3, 2022) 52 F.4th 821.)
Plaintiffs’ Claims Against Pharmaceutical Companies and Distributors Preempted.
Plaintiffs alleged they suffered serious side effects from taking the prescription drug amiodarone, which their physicians prescribed “off-label”—that is, for uses not approved by the U.S. Food and Drug Administration. Plaintiffs sued the companies that promoted, distributed, and sold amiodarone, alleging the companies failed to warn them about the dangers of the drug and promoted the drug aggressively and unlawfully for unapproved uses. The trial court sustained defendants’ demurrers without leave to amend. Plaintiffs appealed, making two arguments: (1) as to all defendants, it was error to dismiss as preempted their claims that defendants failed to warn them about the dangers of amiodarone because defendants did not ensure that they received the content of the FDA-required Medication Guide for the drug; and (2) as to one defendant, Wyeth Pharmaceuticals, Inc., it was error to dismiss common law fraud claims and statutory claims arising from Wyeth’s allegedly unlawful promotion of the drug. Affirming the dismissal, the Court of Appeal stated: “We conclude that because plaintiffs seek to enforce FDA regulations, the claims are preempted as attempts to privately enforce the Federal Food, Drug, and Cosmetic Act (FDCA, 21 U.S.C. § 301 et seq.). And in doing so, we reject plaintiffs’ arguments that their claims have an independent basis in state law, concluding that plaintiffs fail to state such a claim.” (Amiodarone Cases (Cal. App. 1st Dist., Div. 2, Nov. 3, 2022) 84 Cal.App.5th 1091.)
No Violation Under Police Officer’s Bill of Rights.
A police officer was terminated from employment for various actions. On appeal, the sole legal issue presented was whether petitioner’s rights pursuant to the Public Safety Officer’s Bill of Rights (Gov. Code, § 3300 et seq.; POBRA) were violated where the investigation into his alleged improper conduct was not completed within one year of discovery. The terminated officer argued the police chief had heard rumors for a long time prior to any disciplinary proceedings, and so the year ran out. Rejecting the argument and affirming, the Court of Appeal stated the chief might have heard some rumors; “However, before this limitations period is triggered, the public agency must first have determined that ‘discipline may be taken.’” (Shouse v. County of Riverside (Cal. App. 4th Dist., Div. 2, Nov. 3, 2022) 84 Cal.App.5th 1080.)
Insufficient Allegations School Knew Its Custodian Was Sexually Abusing Students.
Plaintiffs were six-year-old first grade students who attended an elementary school. The school janitor, Martinez, engaged in a variety of activities with the students that plaintiffs characterized as “‘grooming’ activities” that were “designed to lure minor students, including [p]laintiffs, into a false sense of security around him.” Martinez befriended young boys; gave plaintiffs sweet treats; showed plaintiffs video games on YouTube; showed plaintiffs videos of Mickey Mouse; and referred to his penis to plaintiffs as “‘Mickey Mouse” and/or “a taser.” Plaintiffs sued the school district, but the trial court dismissed the action after sustaining defendant’s demurrer without leave to amend. Affirming, the Court of Appeal stated: “Plaintiffs do not allege that any school district employee, let alone one with the requisite level of authority, actually knew that Martinez was sexually abusing plaintiffs or any other students. Contrary to plaintiffs’ argument, none of the alleged reports or complaints plaintiffs’ parents or guardians made to school employees is sufficient to satisfy the actual knowledge requirement. Plaintiffs’ parents or guardians reported that plaintiffs were engaging in sexually inappropriate conduct with their classmates and at home, making sexually provocative comments, asking sexually provocative questions, urinating at inappropriate times and in inappropriate locations, and were unusually interested in tasers and Mickey Mouse. None of those complaints involved Martinez.” (Roe v. Hesperia Unified School District (Cal. App. 4th Dist., Div. 2, Nov. 4, 2022) 85 Cal.App.5th 13.)
Arbitrator’s Attempt to Correct Previous Award Ineffective.
An arbitrator resolved a wrongful termination dispute for the employer, denying respective requests for attorney fees and costs. Almost three months later, the arbitrator added an award of approximately $73,000 in attorney fees and costs for the employer. The trial court struck the attorney fees and costs award. Affirming, the Court of Appeal stated, “an arbitrator’s ‘power . . . to correct an award after it has been issued to the parties is limited to evident miscalculations of figures or descriptions of persons, things or property ([Code Civ. Proc.,] § 1286.6, subd. (a)) and nonsubstantive matters of form that do not affect the merits of the controversy. (§ 1286.6, subd. (c).)’” (Taska v. The RealReal, Inc. (Cal. App. 1st Dist., Div. 5, Nov. 4, 2022) 85 Cal.App.5th 1.)
Previously we reported: Batson/Wheeler.
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.)
What happened next:
Peremptory Challenge of Trial Judge After Appeal
A jury found in favor of a doctor in a medical malpractice action. The Court of Appeal concluded the trial court erred by failing to inquire more fully concerning defense counsel’s use of peremptory challenges against Hispanic prospective jurors, and conditionally reversed the judgment to allow the trial court to conduct further inquiry. Once back in the trial court, plaintiff filed a peremptory challenge of the trial judge pursuant to Code of Civil Procedure § 170.6, and the trial judge stepped aside. The doctor filed a petition for writ of mandate in the appellate court. Granting the petition, the appeals court stated: “[T]he trial court should have waited to rule on the peremptory challenge until it conducted the Batson/Wheeler inquiry, then granted the disqualification motion only if it ordered a new trial.” (Akopyan v. Superior Court (Cal. App. 2nd Dist., Div. 7, Aug. 24, 2020) 53 Cal.App.5th 1094.)
Jury Verdict Reversed Because Defense Counsel Excused Jurors Who Had Family Members Who Were Disabled.
On remand once again, the trial court elicited justifications for the six prospective jurors at issue, which the doctor’s attorney provided. As to two of the jurors, the doctor’s attorney asserted they were excused because they had a family member who was disabled, and the attorney feared the family member’s disability would cause the juror to be biased in favor of plaintiff, who alleged she became disabled as a result of the doctor’s professional negligence. The court found the justifications were “race-neutral,” and, after analyzing all the challenges, it denied the Batson/Wheeler motion and reinstated the judgment. Plaintiff argued in this appeal the doctor’s striking of the two prospective jurors based on the disabilities of their family members was itself based on protected characteristics. Reversing again, the Court of Appeal stated: “In this appeal, we consider whether under California law an attorney may properly strike a prospective juror based on the disability of the juror’s family member. . . . Dr. Akopyan’s justification for excusal of the two jurors was race-neutral, but it was still impermissible under California law.” (Unzueta v. Akopyan (Cal. App. 2nd Dist., Div. 7, Nov. 7, 2022) 85 Cal.App.5th 67.)
Terms of a Divorce Decree and a Life Insurance Policy.
Plaintiff and her former husband purchased a life insurance policy while they were married. Pursuant to their divorce agreement, plaintiff continued to contribute to the premiums for her former husband’s life insurance policy. Plaintiff’s former husband died, and plaintiff continued to make the premium payments, unaware that the decedent had attempted to modify the beneficiaries under the policy. The insurance company found others were beneficiaries and denied plaintiff’s claim. Plaintiff sued the insurance company for breach of contract and breach of the covenant of good faith and fair dealing. The trial court granted summary judgment for the insurance company. Reversing, the Court of Appeal stated: “Because the trial court failed to consider the terms of a divorce decree affecting ownership of the policy, and because defendant’s agent repeatedly assured plaintiff, up to and after the ex-husband’s death, that plaintiff remained the sole beneficiary, we conclude disputed issues of material fact prevent summary judgment.” (Randle v. Farmers New World Life Insurance Company (Cal. App. 2nd Dist., Div. 8, Nov. 7, 2022) 85 Cal.App.5th 53.)
The Same Actor Inference Rejected.
Defendant acquired plaintiff’s company, and kept her on in an executive position, only to fire her shortly thereafter. Plaintiff sued defendant. The trial court granted summary judgment for defendant but later granted plaintiff a new trial. On appeal, defendant argued the court should apply the “same actor inference.” Under this principle, if the same person hires and then fires an employee within a short period of time, there is an inference of no discriminatory motive. The rationale is it hardly makes sense to hire workers from a group one dislikes only to fire them once on the job. The Court of Appeal rejected the argument, noting a jury might easily conclude the employer hired the principal of the company as a prerequisite for acquiring the company. The court also noted the record was replete with evidence of plaintiff’s good performance at work. The appeals court affirmed, stating: “We conclude the evidence, in the aggregate, is sufficient to support a reasoned inference that plaintiff’s demotion or firing was the result of discriminatory or retaliatory animus. . . . she was replaced by a younger man, had been performing well at the company, was told defendant was a ‘guy’s club,’ was called a ‘bitch’ by a member of defendant’s leadership team, was demoted and then fired within a relatively short span of time after complaining about defendant’s allegedly discriminatory culture is enough that a jury could reasonably conclude defendant was motivated not by its stated reasons, but by discriminatory or retaliatory animus.” (Doe v. Software One, Inc. (Cal. App. 4th Dist., Div. 3, Nov. 8, 2022) 85 Cal.App.5th 98.)
Paying California Taxes on Goods Sold Online.
Plaintiff is a trade association for e-commerce merchants. Hundreds of plaintiff’s members sell products as third-party merchants through the e-commerce company Amazon’s “Fulfilled by Amazon” (FBA) program. When a customer purchases a product on Amazon provided by an FBA merchant, Amazon collects payment and credits the payment to the merchant’s account after charging a commission for the sale. The goods are therefore ostensibly sold by the third-party merchant, but “fulfilled by” Amazon. Anyone selling goods in California must pay sales tax. (Rev. & Tax Code, §§ 6014, 6051, 6066.) The payer of the sales tax is the seller, who may pass the tax along to the consumer if it wishes. (Rev. & Tax Code, §§ 6051, 6901.5.) The first step in remitting collected sales tax to the state is to apply for a “seller’s permit.” After a permit issues, the seller is assigned an account number, which is used to process the quarterly returns remitting the sales tax that the seller must file. In this action, plaintiff sued in federal court to enjoin California’s requirement that its members obtain seller’s permits from the state to facilitate sales tax collection. The district court dismissed the action. Affirming, the Ninth Circuit concluded that “the Tax Injunction Act . . . , 28 U.S.C. § 1341, precludes the exercise of federal jurisdiction.” (Online Merchants Guild v. Maduros (9th Cir., Nov. 9, 2022) 52 F.4th 1048.)
Previously we reported: Copyright Registration.
Plaintiff sued defendant for copyright infringement. A jury found the design used on defendant’s garments was at least substantially similar to plaintiff’s designs and awarded plaintiff $817,920 in profit disgorgement damages and $28,800 in lost profits. Plaintiff accepted a remittitur to $266,209. The district court awarded plaintiff $514,566 in attorney fees and costs. The Ninth Circuit noted evidence that when plaintiff registered its copyright, it saved money by registering a collection of fabrics, rather than a single fabric. The appeals court reversed and remanded with instructions for the district court to submit an inquiry to the Register of Copyrights asking whether the registration was valid. (Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. (9th Cir., May 29, 2020) 959 F.3d 1194.)
What happened next:
What “with knowledge that It Was Inaccurate” Means in the Copyright Registration Context. Under 17 U.S.C. §411(b)(1), a certificate of copyright registration is valid “‘regardless of whether the certificate contains any inaccurate information, unless—[¶] ‘(A) the inaccurate information was on the application for copyright registration with knowledge that it was inaccurate; . . . [¶].’” The question before the U.S. Supreme Court concerned the scope of the phrase “with knowledge that it was inaccurate.” The Ninth Circuit believed that a copyright holder cannot benefit from the safe harbor and save its copyright registration from invalidation if its lack of knowledge stems from a failure to understand the law rather than a failure to understand the facts. Vacating the holding of the Ninth Circuit, the nation’s highest court stated: “In our view, however, §411(b) does not distinguish between a mistake of law and a mistake of fact. Lack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration.” (Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. (U.S., Feb. 24, 2022) 142 S.Ct. 941.)
The Ninth Circuit rejected defendant’s arguments concerning trial errors, except those pertaining to the remittitur. The court vacated the judgment and remanded the case with instructions to the district court to grant a new trial unless plaintiff accepted the lower remittitur amount of $116,975.23. (Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. (9th Cir., Nov. 10, 2022) 52 F.4th 1054.)
Privette Doctrine Found Inapplicable
Plaintiff, a self-employed contractor, was hired by a shopping center’s tenant to remove an exterior sign after the tenant vacated its space. While searching for the sign’s electrical box, plaintiff entered a cupola on the shopping center’s roof and fell through an opening built into the cupola’s floor, sustaining serious injuries. Plaintiff sued the owners and operators of the shopping center. The trial court granted summary judgment for defendants under Privette v. Superior Court (1993) 5 Cal.4th 689. Reversing, the Court of Appeal found that the owner did not hire plaintiff or plaintiff’s company, and thus, did not delegate a responsibility for ensuring the worksite’s safety. (Ramirez v. PK I Plaza 580 SC LP (Cal. App. 1st Dist., Div. 1, Nov. 10, 2022) 85 Cal.App.5th 252.)
Question of Fact Whether Sidewalk Defect Was Trivial
Plaintiff filed a negligence action against defendant homeowner after plaintiff tripped and fell on an asphalt patch between two adjacent sidewalk slabs in front of defendant’s property. The trial court granted summary judgment for defendant, ruling the condition of the sidewalk was a trivial defect. Finding that defendant did not meet her burden of showing the defect was trivial as a matter of law, and because plaintiff submitted admissible evidence creating a triable issue of material fact, the Court of Appeal reversed, stating: “Because reasonable minds could differ about whether the condition of the asphalt patch, combined with the one and one-half inch height differential, ‘presented a substantial risk of injury’ [ ], the trial court erred in granting [defendant’s] motion for summary judgment.” (Fajardo v. Dailey (Cal. App. 2nd Dist., Div. 7, Nov. 10, 2022) 85 Cal.App.5th 221.)
Serving Foreign Defendant for Trademark Infringement
Plaintiff, a winery, has registered trademarks RIBOLI and RIBOLI FAMILY to market its wines and other products. After learning that defendant, a Chinese company, was using the RIBOLI name to sell products in the United States, including through Amazon.com, plaintiff filed suit against the company in the Central District of California. The Lanham Act allows trademark applicants domiciled in foreign countries to designate “a person resident in the United States on whom may be served notices or process in proceedings affecting the mark.” (15 U.S.C. § 1051(e).) If the foreign-domiciled applicant declines to designate someone, or the designated person cannot be found, the statute provides that the applicant may be served through the Director of the U.S. Patent and Trademark Office (PTO). This case presented a question of first impression in the federal courts of appeals: Do the procedures of section 1051(e) provide a means of serving defendants in court proceedings affecting a trademark, or do they apply only in administrative proceedings before the PTO? The Ninth Circuit concluded that “Section 1051(e) applies in both court and administrative proceedings.” It “therefore vacate[d] the district court’s decision to the contrary and remand[ed] for further proceedings.” (San Antonio Winery, Inc. v. Jiaxing Micarose Trade Co., Ltd. (9th Cir., Nov. 14, 2022) 53 F.4th 1136.)
No Trademark Infringement.
Plaintiff, Punchbowl, Inc., is an online party and event planning service. Defendant, AJ Press, owns and operates “Punchbowl News,” a subscription-based online news publication that provides articles, podcasts, and videos about American politics, from a Washington, D.C. insider’s perspective. (Punchbowl is the nickname the Secret Service uses to refer to the U.S. Capitol.) Punchbowl, Inc. claimed that Punchbowl News was misusing its “Punchbowl” trademark. The district court granted summary judgment for defendant. Affirming, the Ninth Circuit held that “Punchbowl News’s use of the term ‘Punchbowl’ [wa]s expressive in nature and not explicitly misleading as to its source.” (Punchbowl, Inc. v. AJ Press, LLC (9th Cir., Nov. 14, 2022) 52 F.4th 1091.)
Bivens Case Tossed.
A park ranger pulled over plaintiff’s vehicle. Plaintiff suddenly drove away, and a chase ensued. The ranger asked for help from the Bureau of Land Management (BLM). A BLM officer and the park ranger positioned their vehicles to block plaintiff’s vehicle, turned on their lights, and yelled, “police, put your hands up.” Plaintiff drove toward the officers’ vehicles and passed within arm’s length of the BLM officer. The BLM officer fired multiple shots: A bullet grazed plaintiff’s head and she was shot in the right hand. She sued the government for excessive force under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), in which the U.S. Supreme Court authorized a damages action against federal officials for alleged violations of the Fourth Amendment. Although the Supreme Court allowed two other plaintiffs to successfully proceed under Bivens (see Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980)), over the past 42 years, the Supreme Court has declined 11 times to imply a similar cause of action for other alleged constitutional violations. In Egbert v. Boule, 596 U.S. __, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022), the nation’s highest court recently reversed a judgment for a plaintiff who also proceeded under Bivens, observing that “our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts.” In the instant case, the Ninth Circuit reversed the district court’s denial of defendants’ motion for summary judgment. (Mejia v. Miller (9th Cir., Nov. 14, 2022) 53 F.4th 501.)
Wrongful Death Action Against Police Tossed.
The parents of the decedent in a police shooting incident brought a wrongful death action. The trial court granted summary judgment for defendants. When officers arrived at the scene, the decedent was holding a knife, which the officers ordered him to drop. After 42 minutes, during which time the decedent was holding the knife to his own throat, a sergeant ordered officers to deploy less-than-lethal beanbag rounds and 40mm rubber projectiles against decedent. After the projectiles struck decedent, the decedent intentionally stabbed himself and slashed his own throat with his knife. He then fell down, got up, and charged full speed toward the officers. The officers fired several rounds of live ammunition, and decedent collapsed. Affirming, the Court of Appeal stated: “We affirm because no reasonable trier of fact could find that respondents were negligent or that their conduct was not reasonable.” (Villalobos v. City of Santa Maria (Cal. App. 2nd Dist., Div. 6) Nov. 16, 2022) 85 Cal.App.5th 383.)
Right of Seclusion Violations Covered Under Insurance Policy.
This insurance coverage case arises from an underlying lawsuit against Yahoo for violation of the Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227; TCPA). The insurance policy at issue provided liability coverage for injuries “arising out of . . . [o]ral or written publication, in any manner, of material that violates a person’s right of privacy.” The question before the California Supreme Court was whether this language provided liability coverage for right-of-seclusion violations litigated under the TCPA. California’s high court held: “We conclude that it does, assuming such coverage is consistent with the insured’s reasonable expectations.” (Yahoo Inc. v. National Union Fire Insurance Company of Pittsburgh, PA. (Cal., Nov. 17, 2022) 14 Cal.5th 58.)
Notice by Workers Compensation Fund of Premium Increases Was Not Required.
Following an increase in its workers compensation insurance premiums, a business owner sued its insurer pursuant to Insurance Code § 11664(e)(6)(A), which requires notice of premium rate increases. The trial court granted summary judgment to the insurer. Affirming, the Court of Appeal stated: “The increase at issue was not due to any change in the premium rate of [the business]’s governing classification. Rather, a third party changed the applicable governing classification criteria, which caused [the business] to be assigned a new governing classification with a higher premium rate. The statute does not require notice in such circumstances.” (Cover Right Roofing, Inc. v. State Compensation Insurance Fund (Cal. App. 4th Dist., Div. 3, Nov. 17, 2022) 85 Cal.App.5th 415.)
Defendants Enjoined from Selling Sick Puppies.
Searching for labradoodle puppy, plaintiffs, a married couple, texted the phone number listed in a Craigslist online ad picturing puppies of that breed for $1,250 each. The seller texted that “my son” could be at “a safe public place, and provided an address in West Covina. Plaintiffs lived in Huntington Beach but were willing to drive to West Covina to buy the dog. Plaintiffs arrived and texted the seller that they were “here in the parking lot.” They waited for the seller for over an hour before texting, “We will wait another 15 [minutes] and then we are taking off.” The seller texted back, “Hi i am so sorry I don’t know what happened he was suppose[d] to be there an hour ago!!! I will try to get ahold of him but I’m still at work.” On account of the delay, the seller reduced the price to $1,200. The seller’s daughter ended up meeting plaintiffs instead. Plaintiffs paid the daughter $1,200 and took the dog home. Once home, the dog immediately fell mortally ill. They took out a line of credit and paid about $9,000 in vet bills to try to save it. The puppy died. In the interim, plaintiffs washed the dog and discovered it had been dyed brown. Plaintiffs alleged in their lawsuit that defendants sold puppies by representing them as healthy when in fact the puppies were sickly and soon died. Civil Code § 1750 et seq. allows damaged consumers to sue for an injunction if a seller represents that goods have qualities they do not have. (Civ. Code, §§ 1770, subd. (a)(5), 1780, subd. (a)(2).) Defendants contended that plaintiff could not prove they were the sellers. The trial court granted a preliminary injunction barring defendants from advertising or selling dogs. Affirming, the Court of Appeal stated: “[Defendants’] main complaint is no proof showed they were the ones selling these dogs. The trial court was right, however, to reject this identity defense and to find [defendants] were the dog sellers. The court was also right to find likely harm to the public justified the preliminary injunction.” (Loy v. Kenney (Cal. App. 2nd Dist., Div. 8, Nov. 17, 2022) 85 Cal.App.5th 403.)
The Good Samaritan Law.
Plaintiff and another man engaged in a fistfight at a gas station owned by defendant Costco Wholesale Corporation. A Costco gas station attendant stopped the fight by physically separating the two men. Plaintiff later sued for negligence and related causes of action, alleging he was injured when the attendant pulled him away from the other man. Costco and the attendant each moved for summary judgment. The trial court granted defendants’ motions. Plaintiff appealed. He primarily contented that the trial court erroneously concluded the Good Samaritan Law of Health and Safety Code § 1799.102 (b) shielded the attendant from liability. Affirming, the Court of Appeal stated: “[The attendant] presented evidence he intervened in the fistfight to stop the combatants, restore peace, and prevent further harm. Indeed, as the trial court found, [the attendant’s] decision to move the combatants apart was not only objectively reasonable but subjectively done in good faith under [section 1799.102, subdivision (b).” (Valdez v. Costco Wholesale Corporation (Cal. App. 2nd Dist., Div. 2, Nov. 18, 2022) 85 Cal.App.5th 466.)
Qui Tam Action Involving Banks Retention of Unclaimed Property.
California’s Unclaimed Property Law (Code Civ. Proc., § 1500 et seq.; UPL) regulates the escheatment of abandoned property to the State of California. In separate qui tam actions, Plaintiffs alleged that two banks violated the California False Claims Act (Gov. Code, §12650, et seq.; CFCA) by failing to report and deliver millions of dollars owing on unclaimed cashier’s checks to the State of California as escheated property. The two banks sought writ relief from the trial court’s order overruling their demurrers to the plaintiff’s complaints. The trial court overruled the banks’ demurrers. On appeal, the banks argued plaintiffs’ complaints did not allege that the California State Controller provided them notice under Code of Civil Procedure § 1576 advising they were in violation of the UPL, which the banks contended was a prerequisite for liability under both the UPL and the CFCA. Denying the banks’ petitions for extraordinary relief, the Court of Appeal stated: “We reject the banks’ argument that a qui tam plaintiff may not pursue a CFCA action predicated on a failure to report and deliver escheated property unless the California State Controller (Controller) first provides appropriate notice to the banks under Code of Civil Procedure section 1576. We also conclude the plaintiff has adequately alleged that the banks were obligated to report and deliver to California the money owed on unredeemed cashier’s checks, and reject the banks’ argument that allowing this action to proceed violates their due process rights.” (JPMorgan Chase Bank, N.A. v. Superior Court (Cal. App. 1st Dist., Div. 4, Nov. 18, 2022) 85 Cal.App.5th 477.)
Petition to Compel Arbitration Denied.
In a wage and hour class action that also alleged a cause of action under the Private Attorneys General Act (Lab. Code, § 2698 et seq.), plaintiffs claimed they did not recognize the purported arbitration agreement or the signatures on them. Moreover, they contended the agreement presented by defendant contained unconscionable provisions. Finding that defendant did not prove two of the three plaintiffs entered into arbitration agreements and that the agreement entered into by the third plaintiff was procedurally and substantively unconscionable, the trial court denied defendant’s petition to compel arbitration. Affirming on rehearing, the Court of Appeal stated: “We conclude, among other things, that 1) [defendant’s] arbitration agreement with [plaintiffs] Lopez and Ramos is not valid; and 2) the arbitration agreement with [plaintiff] Navas is procedurally and substantively unconscionable.” (Navas v. Fresh Venture Foods, LLC (Cal. App. 2nd Dist., Div. 6, Nov. 21, 2022) 2022 WL 17087898.)
No Personal Jurisdiction Necessary Over Judgement Debtor.
The Court of Appeal described the question and its answer in this matter succinctly: “Must a California court have personal jurisdiction over a judgment debtor before a court clerk may register a sister-state judgment in California? We conclude that the answer is no.” (WV 23 Jumpstart, LLC, v. Mynarcik (Cal.App.3rd, Nov. 21, 2022) 2022 WL 17087762.)
Federal Trial Court’s Task Was to Determine Whether ERISA Plan Administrator’s Decision Was Supported by the Record.
Plaintiff’s claim for long term disability was denied by the plan administrator of a plan arising under the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.. Plaintiff also lost an internal appeal, and then sought de novo review in federal court. The district court affirmed the denial of the claim, adopting new rationales that the plan administrator did not rely on during the administrative process. Reversing, the Ninth Circuit stated: “The district court’s task is to determine whether the plan administrator’s decision is supported by the record, not to engage in a new determination of whether the claimant is disabled. Accordingly, the district court must examine only the rationales the plan administrator relied on in denying benefits and cannot adopt new rationales that the claimant had no opportunity to respond to during the administrative process.” (Collier v. Lincoln Life Assurance Company of Boston (9th Cir., Nov. 21, 2022) 2022 WL 17087828.)
Misgendering a Party Not Per Se Prejudicial Prosecutorial Misconduct.
At trial for recklessly evading a peace officer and other offenses, the prosecutor repeatedly misgendered defendant—who identifies as male—in the presence of the jury. Defense counsel moved for a mistrial and for a curative admonition on the grounds of prosecutorial misconduct, but the trial court denied the motion and declined to admonish the jury. On appeal after conviction, defendant argued the failure to use masculine pronouns constituted prosecutorial misconduct which, in the absence of a curative admonition, was prejudicial. Affirming the judgment of conviction, the Court of Appeal stated: “We acknowledge a curative admonition may be most effective at the moment the objectionable conduct occurs, but when the court denies a request for an admonition without prejudice, counsel must renew the request and press for a final ruling. . . . [¶] . . . [¶] In closing, we emphasize that we do not condone the prosecutor’s repeated misgendering of Zarazua. Moreover, we note trial courts have an obligation to ensure litigants and attorneys are treated with respect, courtesy, and dignity — including the use of preferred pronouns. When court proceedings fall short of that, judges should take affirmative steps to address the issue. Nevertheless, on this record, we conclude the prosecutor’s failure to use masculine pronouns was not prejudicial.” (People v. Zarazua (Cal. App.1st.Dist., Div. 3, Nov. 21, 2022) 2022 WL 17090435.)
Despite Privette, Case Against General Contractor to Proceed in Trial Court.
Plaintiff was severely injured when he fell from a significant height while working as a carpenter at a construction site. Plaintiff alleged that he fell from defective scaffolding, and he sued the general contractor and the scaffolding subcontractor for negligence. The trial court granted summary judgment for the general contractor, concluding that plaintiff’s claims against it were barred by exceptions to the peculiar risk doctrine articulated by the California Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689. Reversing, the Court of Appeal stated: “While Privette and subsequent cases held that a general contractor cannot be vicariously liable for the negligence of its subcontractors, plaintiff’s claim against the general contractor alleged direct, not vicarious, liability. Further, there were triable issues of material fact as to whether the general contractor fully delegated to the scaffolding subcontractor the duty to maintain the scaffolding in a safe condition. The motion for summary judgment therefore was improperly granted.” (Brown v. Beach House Design & Development (Cal. App. 2nd Dist., Div. 3, (Nov. 22, 2022) 2022 WL 17090921.)
Family Code § 1620
In this marital dissolution action, a husband contended his wife revealed a secret he told her during the marriage to a private investigator she hired in the proceeding. The husband sued the wife for breach of contract for revealing his secret. The family court granted the wife’s anti-SLAPP motion made pursuant to Code of Civil Procedure § 425.16. Family Code § 1620 states: “Except as otherwise provided by law, spouses cannot, by a contract with each other, alter their legal relations, except as to property.” The Court of Appeal affirmed, stating: “We conclude that Timothy’s claims directly arose from the dissolution case and that all of the claims are barred by the litigation privilege. . . . [¶] . . . [¶] . . . A contract purporting to hold one spouse liable for revealing the secret of another would, indeed, ‘alter their legal relations.’ It would create a separate agreement that, according to Timothy, would last beyond the marriage itself. Because it does not deal with ‘property,’ as defined by Family Code section 1620, the alleged oral agreement is void as a matter of law.” (Timothy W. v. Julie W. (Cal. App. 4th Dist., Div. 3, Nov. 22, 2022) 2022 WL 17099232.)
May a School District Require Students to Be Vaccinated for COVID-19?
In September 2021, the San Diego Unified School District adopted a “Vaccination Roadmap” requiring students ages 16 or older to be vaccinated for COVID-19 in order to attend in-person classes and participate in sports and other extracurricular activities. Unvaccinated students in this group were involuntarily placed on independent study. The roadmap recognized an exemption for medical reasons, but not for religious or personal beliefs. Plaintiffs challenged the school district’s roadmap. The trial court ruled for plaintiffs, finding the district’s COVID-19 requirement was preempted by state law in this area historically subject to state regulation. Affirming, the Court of Appeal noted that in 1890, during a smallpox epidemic, the California Supreme Court held the legislature may require school children to be vaccinated against that disease, and that, since then, the Llgislature has required students to be vaccinated for ten diseases . . . but COVID-19 was not one of them. The appeals court agreed with the trial court; the school district’s vaccination mandate was a choice for the legislature, not a school district. (Let Them Choose v. San Diego Unified School District (Cal. App. 4th. Dist., Div. 1, Nov. 22, 2022) 2022 WL 17101508.)
Plaintiff Sued Wrong Defendants in Debt Collection Action.
Plaintiff sued a doctor and his corporation for illegal debt collection practices under the Rosenthal Fair Debt Practices Act (Civ. Code, § 1788 et seq.). The doctor hired an unaffiliated, third-party billing service to collect payments from patients and their insurers. Plaintiff, however, did not sue the third-party billing service. The trial court granted defendants’ motion for summary judgment. The legal question before the Court of Appeal was whether a medical service provider that exclusively uses an unaffiliated, third-party billing service to collect payment for services rendered to patients is a “debt collector” within the meaning of the Rosenthal Act. Affirming, the Court of Appeal answered that question as follows: “We conclude that the answer is no. Although the Rosenthal Act applies to those who collect debts on behalf of themselves, it requires that the defendant must regularly and in the ordinary course of business ‘engage in’ debt collection. (§ 1788.2, subd. (c).)” (Olson v. La Joly Neurological Associates et al. (Cal. App. 4th Dist., Div. 1, Nov. 23, 2022) 2022 WL 17172485.)
No Due Process Violation Resulting from Court Relying on Issue First Addressed in Plaintiff’s MSJ Opposition.
Plaintiff was a jiu-jitsu student. He was injured during a sparring match and sued the studio where he was taking lessons, as well as the national jiu-jitsu association under whose auspices the studio’s students competed. The trial court granted summary judgment for the national association on the ground that the association was not liable for the student’s injury because: (1) it had no actual control over the studio’s sparring practices; and (2) the association’s conduct did not give rise to a reasonable belief in the student that it had such control. On appeal, the student contended the trial court violated his right to due process by granting summary judgment on the issue of lack of control, when it was the student who first explicitly raised and briefed that issue in his opposition to summary judgment. Finding the trial court had the discretion to consider the ostensible agency issue regardless of whether it was first raised in plaintiff’s opposition, the Court of Appeal ruled against the plaintiff on that procedural issue. Plaintiff also contended his belief that the national association had control over the studio’s sparring practices was reasonable by virtue of the franchise-type relationship between the association and studio. The appeals court also rejected that contention, stating: “[A] franchisor is liable for the conduct of the franchisee only if the franchisor actually exercises control—or is reasonably believed to exercise control—over the ‘means and manner’ of the franchisee’s operation that caused the plaintiff’s alleged injury. . . . [¶] . . . [¶] The information plaintiff knew at the time of his injury does not, as a matter of law, give rise to a reasonable belief that defendants had control over the League’s supervision of sparring during its classes.” (Pereda v. Atos Jiu Jitsu LLC (Cal. App. 2nd Dist., Div. 2, Nov. 23, 2022) 2022 WL 17174558.)
Pay Your $2 on Time or Forget About Arbitration.
Following commencement of arbitration proceedings, defendant failed to pay its share of arbitration fees within 30 days after such fees were due. Based on that late payment, the trial court concluded that defendant was in material breach of the parties’ arbitration agreement and allowed plaintiff to proceed with his claims against defendant in state court. On appeal, defendant argued that the trial court should have considered factors in addition to its late payment—for example, whether the late payment delayed arbitration proceedings or prejudiced plaintiff—to determine the existence of a material breach of the arbitration agreement. The Court of Appeal discussed Code of Civil Procedure §§ 1281.97, subdivision (a)(1) and 1281.98, subdivision (a)(1), concluding that in light of a material breach of contract, the trial court correctly declined to consider these additional factors. (De Leon v. Juanita’s Foods (Cal. App. 2nd Dist., Div. 3, Nov. 23, 2022) 2022 WL 17174498.)
No Constitutional Violation Regarding Recall Ballot.
Plaintiff filed suit in federal court in August 2021 to halt the September 2021 recall election of California Governor Gavin Newsom, and later amended his complaint to also assert nominal damages. He based his claim on violation of 42 U.S.C. § 1983. The first question on the recall ballot asked whether Governor Newsom should be recalled. Plaintiff intended to vote “no” on that first question, and wanted to vote for Governor Newsom as a successor candidate on the second question. He argued that he was denied his vote because he could not vote for Newsom on the second question. A district denied plaintiff’s motion for a preliminary injunction on the ground (among others) that he had not demonstrated a likelihood of success on his claims. The recall election proceeded as scheduled on September 14, 2021, and a majority of the voters answered “no” on question one, thereby defeating the effort to remove Governor Newsom from office. Following the election, the lower court dismissed the action. Affirming, the Ninth Circuit stated: “Clark has adequately alleged a completed injury—namely, his inability to vote for Governor Newsom on question two during the recall election—that is fairly traceable to the California election procedures he challenges. Because an award of nominal damages would redress that injury, this case is not moot.” However, the appeals court went on to find plaintiff’s constitutional challenges were without merit. (Clark v. California Secretary of State (9th Cir., Nov. 29, 2022) 2022 WL 17258337.)
Vexatious Litigant’s Cross-Complaint Counts.
The first paragraph of the Court of Appeal’s opinion stated: “We hold that, for purposes of the vexatious litigant statute, a defendant who files a cross-complaint has commenced a separate, distinct, and independent cause of action. Thus, respondent’s cross-complaint in a Kansas action counts as one of the ‘five litigations’ required for a vexatious litigant finding under Code of Civil Procedure section 391, subdivision (b)(1). The statute targets a person. It does not matter where the litigation was filed.” (Blizzard Energy, Inc. v. Schaefers (Cal. App. 2nd Dist., Div. 6, Nov. 18, 2022) 71 Cal. App. 5th 832.)
Class Action Settlement Is Not a Coupon Settlement.
Parties to a class action alleging Uber Technologies, Inc. misrepresented its “Safe Rides Fee,” reached a settlement. The settlement provided both monetary and injunctive relief. Uber agreed to pay $32.5 million into a “non-reversionary settlement fund.” Class members agreed to receive $0.25 from the fund for the first Safe Rides Fee they were charged and $0.05 for each subsequent fee. The average class member was expected to receive $1.07. Settlement funds were to be paid out to class members in several ways and stages. If a class member no longer had an Uber account, that share was to be distributed cy pres to the National Consumer Law Center. Upon reconsideration, a district court determined the settlement was not a coupon settlement subject to the restrictions of the Class Action Fairness Act (28 U.S.C. § 1712). Analyzing the three factors for a settlement to be considered a coupon settlement under Online DVD-Rental Antitrust Litigation (9th Cir.) 779 F.3d 934, the Ninth Circuit agreed the instant settlement was not a coupon settlement and affirmed. (McKnight v. Hinojosa (9th Cir., Nov. 30, 2022) 2022 WL 17333820.)
Flatley Exception to Anti-SLAPP Protection Found Inapplicable.
Defendant is a lawyer who was representing a defendant in an underlying case. In response to a settlement letter from plaintiff’s counsel in the underlying case, defendant wrote: “[Y]ou mention that Mr. Pendergrast was involved in construction activities at [plaintiff’s] home. However, Mr. Pendergrast was not operating as a general contractor and [plaintiff] made his own decision to not pull permits. . . . The relationship ended when Mr. Pendergrast determined it was likely that [plaintiff] was laundering ill-gotten money obtained while in the employ of Apple. [¶] I am not sure how you came up with the figure of $125,000. This outrageous demand appears like a threat to further torment Mr. Pendergrast by all means possible, and [plaintiff] has already made retaliatory claims to the Labor Commissioner and [Contractors State License Board] and now he makes another one through you. If [plaintiff] initiates litigation, Mr. Pendergrast’s position will not change and he will aggressively defend himself. I suggest you discuss with [plaintiff] how such litigation may result in Apple opening an investigation into [plaintiff’s] relationships with vendors.” Based on that letter in the underlying case, plaintiff sued defendant in the instant action. Defendant moved to strike the complaint pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16). But the trial court concluded defendant’s prelitigation letter, responsive to a demand from plaintiff’s counsel, amounted to extortion as a matter of law so as to deprive it of § 425.16 protection under Flatley v. Mauro (2006) 39 Cal.4th 299, 320. Reversing, the Court of Appeal stated: “[E]xtortion as a matter of law [occurs] only where the attorney’s conduct falls entirely outside the bounds of ordinary professional conduct. We find that defendant’s letter falls within the boundaries of professional conduct and therefore the Flatley exception to anti-SLAPP protection does not apply.” (Flickinger v. Finwall (Cal. App. 2nd Dist., Div. 8, Nov. 30, 2022) 2022 WL 17333402.)