Litigation Update: December 2023

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

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Julia C. Shear Kushner
  • Editors, Dean Bochner, Colin P. Cronin, Jenn French, Jennifer Hansen, Ryan Wu
QWERTY Dancing

In 1976, Congress for the first time extended explicit copyright protection to “choreographic works.” (17 U.S.C. § 102(a)(4).) Here, a choreographer alleged that a videogame company infringed the copyright of a choreographic work when the company created and sold a virtual animation depicting portions of the registered choreography. The district court dismissed the copyright claim, finding the choreographer failed to plausibly allege the company’s animation was substantially similar to his registered choreography. Reversing, the Ninth Circuit  concluded that “[t]he district court erred in dismissing [the choreographer’s] claim because the choreography was ‘short’ and a ‘small component’ of [his] overall work.” (Hanagami v. Epic Games, Inc. (9th Cir., Nov. 1, 2023) 85 F.4th 931.)

Equitable Estoppel Found Not to Apply in Petition to Compel Arbitration.

A man’s former employer sued the man and his new employer for misappropriation of trade secrets under the Uniform Trade Secrets Act (Civ. Code, § 3426 et seq.). Defendants moved to compel arbitration based on the man’s contract with his first employer. The trial court granted the man’s motion to compel arbitration, but denied the second employer’s motion because the second employer was not a signatory to the contract. On appeal, the second employer argued that under the doctrine of equitable estoppel, the first employer should be required to arbitrate its claim because the first employer alleged in its complaint that the second employer knew or should have known that the stolen information was subject to ongoing confidentiality obligations. Affirming, the Court of Appeal held the policy rationale for estoppel did not apply here. (Mattson Technology, Inc. v. Applied Materials, Inc. (Cal. App. 1st Dist., Div. 5, Nov. 1, 2023) 96 Cal.App.5th 1149.)

No Economic Injury Alleged and No Private Right of Action Permitted. 

In 2017, plaintiffs applied for and obtained a loan from defendant, secured by a mortgage on their residence. In their complaint, plaintiffs alleged defendant was not licensed to engage in lending in California between 2014 and 2018. The trial court sustained defendant’s demurrer. Affirming, the Court of Appeal agreed with the trial court that “the allegations in the [complaint] were insufficient to establish an actual economic injury, necessary for standing under Business and Professions Code section 17200, and that there was no private right of action under Financial Code sections 22100 and 22751.” (Lagrisola v. North American Financial Corporation (Cal. App. 4th Dist., Div. 1, Nov. 3, 2023) 96 Cal.App.5th 1178.)

Government Claim Not Required for Declaratory Relief Actions.

Defendant city contracted with plaintiff to renovate the city’s conference center and adjacent plaza. A dispute arose about which party was financially responsible under the contract and a change order for unforeseen delays in the renovation. Without first presenting a claim to the city, plaintiff filed suit seeking a declaration of its rights and duties under the contract and the change order. The single cause of action for declaratory relief sought a determination that the “City must compensate [plaintiff] for due compensable or excusable delays in time and money for any changes made by or caused by the City to the Project that negatively impact the critical path.” The trial court sustained a demurrer with leave to amend and later granted summary judgment for the city based on plaintiff’s failure to present a claim before suing. Reversing, the Court of Appeal explained that “because the initial action sought purely declaratory relief, the trial court was incorrect to sustain the demurrer and later grant summary judgment.” (Stronghold Engineering Incorporated v. City of Monterey (Cal. App. 6th Dist., Nov. 3, 2023) 96 Cal.App.5th 1203.)

California Attorney General Did Not Meet Intermediate Scrutiny Standard to Enforce Proposition 65 Vis-à-vis Glyphosate.

Glyphosate is a widely used herbicide in multiple settings. In 2015, the International Agency for Research on Cancer (IARC) identified glyphosate as “probably carcinogenic” to humans. While IARC is of the view that glyphosate is probably carcinogenic to humans, that conclusion is not shared by a consensus of the scientific community. As a result, under the current regulatory scheme implementing Proposition 65 (Prop 65), the California Office of Environmental Health Hazard Assessment was required to place glyphosate on the state’s list of known carcinogens. Due to that listing, Prop 65 requires certain businesses whose products expose consumers to glyphosate to provide a clear and reasonable warning that glyphosate is a carcinogen. Plaintiffs are agricultural producers and business entities that sell glyphosate-based herbicides, use glyphosate to cultivate their crops, or process such crops into foods sold in California. Fearing the possible risk of private enforcement actions, plaintiffs sought to enjoin the California Attorney General from enforcing Prop 65’s warning requirement for glyphosate on the ground that the warning requirement violated their First Amendment rights to be free from compelled speech. The district court granted the permanent injunction requested by plaintiffs. Affirming, the Ninth Circuit concluded “that the Prop 65 warning as applied to glyphosate—in any form that has been presented to this Court—is not purely factual and uncontroversial, and thus is subject to intermediate scrutiny. Because the Attorney General fails to meet that standard, we affirm the district court’s grant of summary judgment and entry of a permanent injunction.” (National Association of Wheat Growers v. Bonta (9th Cir., Nov. 7, 2023) 85 F.4th 1263.)

Consent to Search Car Was Not Voluntary. 

A man was charged with being a felon in possession of a firearm. The trial court denied his motion to suppress evidence of the firearm that was found when a police officer searched the car he was driving. The question in the case was whether the man gave voluntary consent for the search after he was pulled over for a traffic violation. With the subjective belief that it was true, the officer told the defendant he had the authority to tow the car but would not do so if the man consented to the search. Granting a writ of mandate, the Court of Appeal stated: “We hold that the false promise of leniency not to tow the car was a material and inextricable part of the agreement inducing defendant’s consent to the search, and thus, under the totality of the circumstances, defendant’s consent was not voluntarily given.” (Boitez v. Superior Court of Yolo County (Cal. App. 3rd Dist., Nov. 7, 2023) 96 Cal.App.5th 1213.)

Newspersons’ Shield Law (Cal. Const., art. I, § 2, subd. (b); Evid. Code, § 1070). 

Another defendant charged with the same murder as the real party in interest gave a newspaper interview, and the real party served the newspaper with a subpoena demanding all unpublished material relating to the interview. The superior court denied the newspaper’s motion to quash and was later adjudged in contempt for disobeying an order to produce the subject material. Granting a writ of mandate in part and denying it in part, the Court of Appeal stated: “[A]s held in Delaney v. Superior Court (1990) 50 Cal.3d 785, 793 (Delaney), shield law immunity ‘must yield to a criminal defendant’s constitutional right to a fair trial.’ [¶] . . . [¶] . . . Let a writ of mandate issue directing the respondent court to vacate its order of May 24, 2023, adjudging petitioner in contempt. In all other respects, the petition is denied.” (Bakersfield Californian v. Superior Court of Kern County (Cal. App. 5th Dist., Nov. 7, 2023) 96 Cal.App.5th 1228.)

A Spouse’s Sale of Property to the Marital Community for the Nominal Amount of $1 Does Not Constitute a De Facto Gift. 

The parties were married for ten years. The husband challenged a trial court order determining he did not have a reimbursement claim under Family Code § 2640 based on an asserted contribution of separate property to a corporation that the court found was a community asset. Affirming, the Court of Appeal stated: “We publish our opinion resolving this appeal because the principal question raised here—whether a spouse’s sale of property to the marital community for the nominal amount of $1 constitutes a de facto gift, triggering a right to contribution under section 2640—is a matter of first impression. We answer that question no.” (In re Marriage of Motiska and Ford (Cal. App. 1st Dist., Div. 4, Nov. 8, 2023) 96 Cal.App.5th 1291.)

“The degree of civilization in a society can be judged by entering its prisons.” Fyodor Dostoevsky. 

The U.S. Supreme Court denied certiorari in a case that involved a seriously mentally ill convict who was held in solitary confinement in a windowless, perpetually lit cell about the size of a parking space that was poorly ventilated and had noxious odors. The space was often caked with human waste and because prison officials would not provide cleaning supplies unless the inmate purchased them from the commissary, he was often forced to clean the filth with his bare hands. His petition contended that his treatment by prison officials violated the Eighth Amendment of the United States Constitution. Justice Jackson, joined by Justices Sotomayor and Kagan, dissented, stating: “This Court has long held that the test for evaluating an Eighth Amendment challenge to a prisoner’s conditions of confinement involves determining whether prison officials acted with ‘deliberate indifference’ to a substantial risk to an inmate’s health or safety. [Citation.] With respect to the Eighth Amendment claim at issue in this case, the Court of Appeals for the Seventh Circuit affirmed the grant of summary judgment to prison officials without applying that well-established standard. Given this indisputable legal error, I would grant certiorari and summarily reverse.” (Johnson v. Prentice (U.S., Nov. 13, 2023) 2023 WL 7475168).

Attorney Neglect x 2. 

Defendant moved to vacate entry of a default and default judgment pursuant to Code of Civil Procedure § 473, subdivision (b), based on the defendant’s attorney’s declaration of fault due to inexcusable neglect.


October 23, 2019Complaint filed.
February 8, 2020Defendant served with summons and complaint.
August 20, 2020Court clerk entered defendant’s default.
March 9, 2021Default judgment entered.
September 9, 2021Defendant filed motion to vacate the default judgment.
October 13, 2021Superior Court denied motion to vacate.

Affirming denial of the motion, the Court of Appeal stated: “Under the six-calendar month rule, Chavez’s motion was timely filed on September 9, 2021, six calendar months after the default judgment was entered on March 9, 2021. (Gov. Code, § 6804; Code Civ. Proc., §§ 12, 12a, 473(b).) Nonetheless, we affirm the order denying the motion. The motion was not ‘in proper form’ (§ 473(b)) because it was unaccompanied by a proposed responsive pleading. The court was required to deny the motion on this ground.” (Jimenez v. Chavez (Cal. App. 4th Dist., Div. 2, Nov. 13, 2023) 97 Cal.App.5th 50.)

FEHA Case Against University Tossed. 

Two employees filed complaints with the university’s Equity and Diversity Department (E&D) alleging plaintiff, the employees’ supervisor, discriminated against them based on the employees’ race and sexual orientation. E&D determined that plaintiff created a hostile work environment, and the university terminated plaintiff. Plaintiff sued the university, alleging claims for gender, race, color, and sexual orientation discrimination under the Fair Employment and Housing Act (Gov’t Code, § 12940; FEHA). The trial court granted summary judgment in favor of the university. Affirming, the Court of Appeal stated: “Martin does not dispute that [the university] put forth evidence that the decision to terminate him was based on nondiscriminatory factors. [¶] . . . [¶] . . . Martin has not demonstrated any incoherencies or contradictions in this internal investigation to establish potential pretext.” The Court of Appeal held “[Martin] presents insufficient evidence to create a dispute of fact regarding his hostile work environment claim.” (Martin v. Board of Trustees of the California State University (Cal. App. 2nd Dist., Div. 8, Nov. 14, 2023) 2023 WL 7537694.)

Dangerous Condition on Private Property Was Open and Obvious, So No Duty to Warn. 

Plaintiff was walking her dog on a rainy day. She crossed a driveway to defendant’s apartment’s parking lot entrance. Rainwater formed a current that was running down the driveway. Plaintiff fell, was injured, and thereafter sued defendant for negligence and failure to warn. The trial court granted summary judgment for defendant. Affirming, the Court of Appeal stated: “We conclude that Dolphin owed no duty to warn Nicoletti of a water current that openly and obviously interfered with one of three building entrances.” (Nicoletti v. Kest (Cal. App. 2nd Dist., Div. 8, Nov. 14, 2023) 2023 WL 7521740.)

Disabled and Unmanageable. 

At some point after plaintiff joined defendants’ golf club, he was diagnosed with pulmonary arterial hypertension. Given this disability, plaintiff claimed he had to drive his golf cart to wherever his ball landed on the golf course. But for safety reasons, defendants had rules governing where golfers could drive their golf carts. Some of those restrictions applied to all members, including golfers with disabilities. Defendants suspended plaintiff’s membership after he drove his cart into a bunker. Plaintiff brought an action alleging defendants failed to accommodate his disability and denied him full and equal enjoyment of the golf course. A jury found in favor of defendants, and the trial court denied plaintiff’s motions for new trial and for judgment notwithstanding the verdict. On appeal, plaintiff argued that the lower court erred in permitting defendants’ expert to answer a question about the ultimate fact of whether the golf course complied with the Americans with Disabilities Act, as well as other questions. Affirming, the Court of Appeal stated: “Assuming, without deciding, [defendants’] policies had a discriminatory effect in practice, there was substantial evidence defendants modified their policies for plaintiff. Any error regarding the testimony of defendants’ expert witness also did not result in a miscarriage of justice.” (Lurner v. American Golf Corporation (Cal. App. 4th Dist., Div. 3, Nov. 14, 2023) 2023 WL 7541970.)

Wrong Remedy. 

Plaintiff and defendant entered an agreement under which plaintiff granted defendant the “exclusive right to use” certain areas of its commercial property. The agreement specified that it was a “license agreement,” as opposed to a lease, with plaintiff “retain[ing] legal possession and control” of the premises. The agreement was to be “governed by the contract[] laws and not by the landlord tenant laws.” When defendant defaulted, plaintiff nonetheless filed an unlawful detainer action seeking possession of the property. The trial court sustained defendant’s demurrer without leave to amend, reasoning that plaintiff had waived its right to pursue the remedy of unlawful detainer. Finding the trial court was correct, the Court of Appeal affirmed. (Castaic Studios, LLC v. Wonderland Studios LLC (Cal. App. 2nd Dist., Div. 5, Nov. 15, 2023) 2023 WL 7592532.)

Unfair Competition. 

Plaintiff construction company sued defendant concrete company, alleging defendant charged its customers an “energy” fee and an “environmental” fee “wholly untethered to any actual cost for ‘energy’ or ‘environmental’ issues.” The complaint alleged causes of action for (1) violation of California’s Unfair Competition Law under the fraudulent and unfair business practices prongs (Bus. & Prof. Code, § 17200 et seq.; UCL) (2) breach of contract; and (3) “unjust enrichment.” Defendant filed a motion for judgment on the pleadings, which the trial court granted on the UCL and unjust enrichment causes of action. Affirming dismissal of the unjust enrichment cause of action and reversing as to the UCL cause of action, the Court of Appeal stated: “Sepanossian alleged facts sufficient to show Ready Mix’s fees are misleading to a reasonable consumer because there is no connection between the imposition of Ready Mix’s ‘energy’ or ‘environmental’ fees and whether Ready Mix is in fact charging its customers for energy or environmental costs.” (Sepanossian v. National Ready Mix Company, Inc. (Cal. App. 2nd Dist., Div. 7, Nov. 15, 2023) 2023 WL 7590798.)

Malicious Prosecution Against Opposing Attorney. 

Plaintiff filed a malicious prosecution action against defendant, the attorney for the opposing parties in prior litigation. The trial court granted defendant’s anti-SLAPP motion to strike the claim, finding that plaintiff’s malicious prosecution claim was barred by the one-year statute of limitations in Code of Civil Procedure § 340.6 (a) for “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services.” Granting the motion, the trial court relied on Connelly v. Bornstein (2019) 33 Cal.App.5th 783, and Garcia v. Rosenberg (2019) 42 Cal.App.5th 1050, both of which held that § 340.6 governs malicious prosecution claims against attorneys who performed professional services in the underlying litigation. On appeal, plaintiff argued both cases were incorrectly decided, and that his malicious prosecution claim against defendant was timely under the two-year limitations period in Code of Civil Procedure § 335.1. In the alternative, he argued that the statute of limitations was tolled under § 340.6 (a)(2). Affirming, the Court of Appeal stated: “We agree with Connelly and Garcia that subdivision (a) of section 340.6 applies to malicious prosecution claims against attorneys who performed professional services in the underlying litigation. We further conclude that the tolling provision in section 340.6, subdivision (a)(2) is inapplicable here.” (Escamilla v. Vannucci (Cal. App. 1st Dist., Div. 1, Nov. 15, 2023) 2023 WL 7646820.)

Money Pimp Took from Sex Worker Clawed Back. 

A criminal defendant pleaded no contest to human trafficking and pimping. The victim requested restitution of $31,336 for stolen social security payments, damage to her credit score, as well as $340,500 for money she received and had taken from her for acts of prostitution the defendant forced her to commit, and interest accrued on both sums.  The trial court granted as to the financial losses of her social security and credit score, but denied as to the prostitution earnings on the ground that the acts were violations of the law. Citing Penal Code § 1202.4, subdivision (p), which provides that a defendant should be ordered to pay restitution to a victim in a case in which a victim has suffered economic loss as a result of the defendant’s conduct, the Court of Appeal reversed, and directed the trial court to order victim compensation. (H.B. v. Superior Court of Solano County (Cal. App. 1st Dist., Div. 4, Nov. 17, 2023) 2023 WL 7980805.)

Lawsuit Against PG&E Would Interfere with the PUC’s Authority.

Pacific Gas and Electric Company (PG&E) conducted a series of emergency power shutoffs, called Public Safety Power Shutoffs (PSPS), throughout the fall of 2019 to reduce the risk that its utility infrastructure would ignite a wildfire during extreme weather conditions. Plaintiff alleged that these power shutoffs were necessitated by PG&E’s negligence in maintaining its power grid over multiple decades and that Californians harmed by these shutoffs were entitled to $2.5 billion in damages. The Ninth Circuit asked the California Supreme Court whether Public Utilities Code § 1759 bars a lawsuit that seeks damages resulting from PSPS events where the suit alleges that a utility’s negligence in maintaining its grid necessitated the shutoffs but does not allege that the shutoffs were unnecessary or violated PUC regulations. The California Supreme Court stated: “We hold that allowing suit here would interfere with the PUC’s comprehensive regulatory and supervisory authority over PSPS. Section 1759 therefore bars Gantner’s suit.” (Gantner v. PC&E Corporation (Cal., Nov. 20, 2023) 2023 WL 8010215.)

Police Officers Entitled to Qualified Immunity in Lawsuit Alleging Excessive Force. 

Police officers responded to a domestic violence call. When they arrived at the home, two minor children, both distressed, said their parents were fighting, their father was throwing their mother around, and their mother was hurt and needed an ambulance. They knew of no weapons in the home except for a BB gun. As the officers entered the kitchen, the father shouted an obscenity to them. They ordered him to the floor and the father ignored their commands and ran toward the officers. The officers shot and killed him. The decedent’s estate sued the county and the officers for excessive force. The district court dismissed the action, finding the officers were entitled to qualified immunity. Affirming, the Ninth Circuit noted the officers had to make a snap judgment in an escalating situation. (Waid v. County of Lyon (9th Cir., Nov. 21, 2023) 2023 WL 8043822.)

Employer Did Not Disclose Its Requirement for Worker to Sign an Arbitration Agreement to the U.S. Department of Labor, So Arbitration Denied. 

The H-2A Temporary Agricultural Program allows employers to recruit foreign agricultural workers when the domestic labor market cannot meet employers’ needs. The United States Department of Labor must certify an employer’s participation in the H-2A program. This process requires the employer, among other things, to submit a “job order” describing “the material terms and conditions” of the jobs for which it seeks foreign workers. Plaintiff is a foreign worker hired by defendants to work at farms they own. Plaintiff brought employment claims against defendants. Defendants moved to compel arbitration pursuant to an arbitration agreement presented to and signed by plaintiff at his orientation. The trial court found the agreement void and denied the motion. The Court of Appeal affirmed, agreeing that arbitration was “a material term and condition” of employment, and, as such, a job requirement that defendant should have disclosed during the H-2A certification process. (California v. Alco Harvesting LLC (Cal. App. 2nd Dist., Div. 6, Nov. 22, 2023) 2023 WL 8107805.)

Untimely Appeal Dismissed.

At the conclusion of a long cause hearing, a family court judge issued an oral statement of decision. The mother filed a notice of appeal on a date that was beyond the 60-day deadline for filing such notices. (Cal. Rules of Court, rule 8.104(a)(1)(B).) The Court of Appeal found that although the time for filing a notice of appeal may be extended to 90 days after the first notice of intention to move to vacate the order is filed (Cal. Rule of Court, rule 8.108(c)(2)), this did not assist the mother because she failed to file her notice of appeal during that time frame. (Z.V. v. Cheryl W. (Cal. App. 1st Dist., Div. 3, Nov. 22, 2023) 2023 WL 8110725.)

Attorney Fee Award in Unsuccessful Anti-SLAPP Motion Reversed for Failure to Comply with 21-Day Safe Harbor Rule. 

The trial court ordered defendant to pay plaintiffs more than $13,000 in attorney fees and costs after finding his anti-SLAPP motion was frivolous. On appeal, defendant argued that plaintiff failed to provide him a 21-day safe harbor notice as required by Court of Civil Procedure § 128.5, subdivision (f). In its analysis and ultimate affirmance, the Court of Appeal discussed and distinguished Changsha Metro Group Co., Ltd. v. Xufeng (2020) 57 Cal.App.5th 1, stating: “The court found it would not have been practical for the plaintiff to comply with the safe harbor provision considering the expedited hearing and briefing schedule that generally applies to anti-SLAPP motions. [¶] This case is distinguishable from Changsha. When McDaniel filed his anti-SLAPP motion on June 18, 2019, the court scheduled a hearing on the motion for early September 2019, or nearly three months after the motion was filed.” (Zarate v. McDaniel (Cal. App. 2nd Dist., Div. 3, Nov. 27, 2023) 2023 WL 8182862.)

Plaintiff’s Bicycle Ride Home While Still on Employer’s Premises Subject to Exclusivity of Workers’ Compensation. 

An employee of a university was injured while riding her bike on university grounds on her way home from work. She sued the university for dangerous condition of public property. The trial court granted summary judgment for the university. Affirming, the Court of Appeal stated: “[W]e conclude Jones’s injuries occurred within the course of her employment as a matter of law and thus the workers’ compensation exclusivity rule barred her claim.” (Jones v. Regents of University of California (Cal. App. 4th Dist., Div. 3, Nov. 27, 2023) 2023 WL 8229170.)

No Specific Jurisdiction in E-Commerce Transaction. 

Defendants offer a web-based payment processing platform to merchants nationwide. When processing payments, defendants obtain the personal information of those merchants’ customers. In a case of first impression, the court had to decide whether defendants’ extracting and retaining of consumer data and their tracking of customers exposes them to personal jurisdiction in California, where a consumer made his online purchase. The district court dismissed plaintiff’s complaint for lack of jurisdiction. Affirming, the Ninth Circuit stated: “We hold that the defendants are not subject to specific jurisdiction in California because they did not expressly aim their suit-related conduct at the forum state. When a company operates a nationally available e-commerce payment platform and is indifferent to the location of end-users, the extraction and retention of consumer data, without more, does not subject the defendant to specific jurisdiction in the forum where the online purchase was made.” (Briskin v. Shopify, Inc. (9th Cir., Nov. 28, 2023) 2023 WL 8225346.)

Caltrans Enjoys Design Immunity in a Case Where a Man Was Killed When a Deer Crossed a Highway. 

A man died in a multi-car accident caused by a deer crossing State Route 154 (SR-154). His children sued the California Department of Transportation (Caltrans) and others for negligence. They alleged the road constituted a dangerous condition under Government Code § 835.1 The trial court found that design immunity applied to Caltrans and granted summary judgment. Affirming, the Court of Appeal stated: “We conclude substantial evidence showed that a reasonable public employee would have adopted the SR-154 design plans, even without the features and changes appellants contend Caltrans should have considered and included.” (Stufkosky v. California Department of Transportation (Cal. App. 2nd Dist., Div. 6, Nov. 28, 2023) 2023 WL 8229941).)

Civil Extortion. 

Defendant became pregnant with plaintiff’s child while plaintiff was married to another woman. The wife knew nothing about it when the baby was born, although plaintiff played a role in the child’s life. According to plaintiff, defendant “began to blackmail” him by demanding that he pay thousands of dollars, or she would disclose their relationship and the child’s existence to his wife. Plaintiff’s complaint stated a cause of action for civil extortion against defendant. The trial court agreed with defendant’s contention that an extortion cause of action could only move forward if it arose out of a threat to initiate a false criminal or civil prosecution—and thus no such cause of action could be based on the facts in this case. The court sustained defendant’s demurrer without leave to amend. Reversing, the Court of Appeal stated: “Civil Code sections 1566, 1567, and 1570 establish a right to rescission in cases in which a person’s consent to a transaction was obtained by ‘menace’: threats of confinement, of unlawful violence to the person or his or her property, or of injury to a person’s character. This is effectively the civil version of extortion.” (Tran v. Nguyen (Cal. App. 4th Dist., Div. 3, Nov. 28, 2023) 2023 WL 8231809.)

Allegations of Sexual Harassment Against University Soccer Coach. 

Plaintiff was recruited to play on the women’s soccer team at the University of California, Berkeley (UCB). She played on the team during her freshman year and, in the spring of that year, was released from the team. She sued the university, the head coach of the women’s soccer team, and the director of athletics, first in federal court and then in state court. Her allegations included the following: “During the 2018–2019 season, Thomas ‘experienced and witnessed’ abusive behavior by McGuire. McGuire lost his temper at the athletes ‘on many occasions,’ ‘[i]n fits of rage, he singled out athletes and berated them in front of the team, sometimes nonsensically, to make an example of them and strike fear in the witnessing athletes,’ he ‘called young female athletes names, cursed at them, and degraded them with personal insults both related and unrelated to athletic performance,’ and he ‘tormented them psychologically and punished them with grueling workouts.’ His ‘behavior was described to [UCB’s] athletics administration as creating a culture of fear and intimidation.’” Plaintiff appealed from the judgment in favor of the defendants entered after the trial court sustained demurrers to all plaintiff’s causes of action without leave to amend. Affirming in part and reversing in part, the Court of Appeal stated: “[W]e conclude Thomas sufficiently pleaded a cause of action for sexual harassment in violation of Civil Code section 51.9 against the head coach and UCB and should have been granted leave to amend her complaint to clarify the statutory basis of this claim. In all other respects, we will affirm the trial court’s decision.” (Thomas v. Regents of the University of California (Cal. App. 1st Dist., Div. 2, Nov. 29, 2023) 2023 WL 8248249.)

The Always-Confusing Firefighter’s Rule. 

Plaintiff firefighters initially sought to hold defendant liable for both crashing his car and failing to cooperate after the crash. The trial court granted summary judgment on the ground that the suit was precluded by the firefighter’s rule, which negates “liability to [firefighters] by one whose negligence causes or contributes to the fire which in turn causes the death or injury of the [firefighter].” The firefighters earlier appealed from that order, arguing that defendant’s alleged conduct fell within certain statutory exceptions to the firefighter’s rule, as well as the “independent cause” exception at common law. The first appellate court reversed, finding a triable issue of fact regarding the exception set forth in Civil Code § 1714.9, subdivision (a)(1), as to the allegation defendant knew or should have known about what his conduct would cause. On remand, the case went to a jury trial. The jury held defendant did not increase the risks to the firefighters. Once again, the Court of Appeal reversed, stating: “Here, [defendant’s] attorney misstated the law when he told jurors that [defendant] could not be held liable unless he had increased the risk to the firefighters ‘beyond the risk that’s inherent to their job.’” (Rattary v. Favro (Cal. App. 1st Dist., Div. 4, Nov. 29, 2023) 2023 WL 8252053.)

Failed Defense to Driving Under the Influence of Alcohol.

Plaintiff appealed from the trial court’s denial of her petition for review of an order of the Department of Motor Vehicles (DMV) suspending her driver’s license for driving with a blood-alcohol concentration (BAC) of 0.08 percent or more. Plaintiff argued the trial court erred because the DMV failed to provide sufficient foundational evidence of the reliability of the way in which her blood was collected for the BAC test. She contended she rebutted the presumption that the certified phlebotomy technician (CPT) drew her blood in a proper manner by showing that the CPT was not supervised and the procedure she followed was not properly approved as required by applicable regulations and statutes. Affirming, the Court of Appeal stated: “We agree that plaintiff rebutted the presumption of reliability but will affirm the trial court’s order because evidence introduced at the hearing nonetheless established the reliability of the manner of collection of Phillips’ blood.” (Phillips v. Gordon (Cal. App. 1st Dist., Div. 4, Nov. 29, 2023) 2023 WL 8266154.)

Ex-Girlfriend Sued for Defamation. 

Defendant sent emails to school officials at Dartmouth College, stating essentially that plaintiff had committed voter fraud to win an election for student body president at Berkeley High School. She wrote that she was sharing the information so that Dartmouth would be “truly aware of whom you have admitted.” Sometime after receiving these emails, Dartmouth revoked plaintiff’s offer of admission. In addition to her emails to Dartmouth, defendant later sent Instagram messages to two of plaintiff’s acquaintances, which, among other things, advised them to “avoid him” because “men like him grow up thinking it’s okay to disrespect women and be violent.” Plaintiff sued defendant for defamation, false light, invasion of privacy, civil harassment, civil stalking and Intentional Infliction of Emotional Distress. The trial court denied defendant’s motion to strike brought under the anti-SLAPP statute, Code of Civil Procedure § 425.16, stating that defendant did not meet the burden of showing her statements in the Dartmouth emails involved protected activity. (Doe v. Ledor (Cal. App. 1st Dist., Div. 4, Nov. 30, 2023) 2023 WL 8268447.)

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