Litigation
Litigation Update: December 2024
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, Austin Evans, Jenn French, Jennifer Hansen, Ryan Wu
Personal Information of School Children.
Defendant is an education consulting business that obtained personal and medical information about plaintiff, an 11-year-old student, from plaintiff’s school to assist the school and evaluate plaintiff’s educational progress at the school. Defendant promised to maintain the information confidentially, but it negligently maintained its database. A cyber hacker gained access to plaintiff’s personal information. Through his guardian ad litem, plaintiff filed a class action against defendant for violation of the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.; CMIA) and the Customer Records Act (Civ. Code, § 1798.80 et seq.; CRA). The trial court sustained defendant’s demurrer without leave to amend. Reversing, the Court of Appeal stated: “We conclude, among other things, that: 1) Illuminate falls within the scope of the CMIA and CRA; 2) J.M. stated sufficient facts to state causes of action under the CMIA and CRA; and 3) the trial court abused its discretion by sustaining the demurrer without leave to amend.” The California Supreme Court granted review, permitting citation of the case while review is pending. (M. v. Illuminate Education (Cal., Oct. 30, 2024) 557 P.3d 735.)
Plaintiff’s MSJ Opposition Was Based on Speculation.
The outside temperature ranged between 12- and 30-degrees Fahrenheit when plaintiff walked to her car, slipped on a patch of ice, and was seriously injured. She sued the city for dangerous condition of public property, contending the city should have towed away an illegally parked Mitsubishi car that prevented snow and ice removal. The trial court granted summary judgment for the city. Affirming, the Court of Appeal rejected plaintiff’s primary argument about constructive notice to the city, stating: “. . . the ice patch could have been present in the parking lot for 11 days or 11 hours. Likewise, though the Mitsubishi may have been present long enough to interfere with snow removal efforts, the car was only dangerous to the extent there was snow or ice nearby. And here again, the evidence supports only a speculative inference that this was the case.” (Maksimow v. City of South Lake Tahoe (Cal. App. 3rd Dist., Nov. 4, 2024) 106 Cal.App.5th 514.)
The Issue Is Whether a Man Sentenced to Death Is Intellectually Disabled.
A trial judge in Alabama vacated a criminal defendant’s death sentence after concluding the man was intellectually disabled. His IQ scores ranged from 69 to 78. The Eleventh Circuit affirmed. Granting certiorari and remanding the case for further consideration, the United States Supreme Court stated in a per curiam opinion that the lower court’s “analysis would suggest a per se rule that the lower end of the standard-error range for an offender’s lowest score is dispositive. On the other hand, the Eleventh Circuit also approvingly cited the District Court’s determination that Smith’s lowest score is not an outlier when considered together with his higher scores. That analysis would suggest a more holistic approach to multiple IQ scores that considers the relevant evidence, including as appropriate any relevant expert testimony.” (Hamm v. Smith (U.S., Nov. 4, 2024) 604 U.S. 1.)
https://www.supremecourt.gov/opinions/24pdf/604us1r01_2dq3.pdf
Federal Government Settles Class Action Despite Opposition from For-Profit Schools.
Three intervenor for-profit universities appealed from a federal court’s approval of a class action settlement between the United States Department of Education and plaintiffs who represent a class of over 500,000 federal loan borrowers. The district court denied the school’s motion to intervene as a matter of right. The Student Loan Reform Act of 1993 authorized the Secretary of Education to develop a program for discharging federal educational loan debts based on the wrongful acts or omissions of the schools attended by borrowers. (20 U.S.C. §§ 1070, 1087e(h).) Affirming, the Ninth Circuit stated: “[W]e conclude that the Schools have alleged the minimum constitutional requirements for Article III standing. But because the Schools are not parties to the settlement and have not shown that the settlement will cause them formal legal prejudice, they lack standing to challenge the district court’s final approval of the settlement on appeal. We also conclude that the dispute between Plaintiffs and the Department was not moot at the time the district court approved the settlement, and we affirm the district court’s denial of the Schools’ motion to intervene as of right.” (Sweet v. Cardona (9th Cir., Nov. 5, 2024) 121 F.4th 32.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/11/05/23-15049.pdf
States Challenge Federal $15 Minimum Wage.
In 2021, President Biden issued Executive Order 14026 which directed federal agencies to include a clause in federal contracts requiring contractors to pay employees a $15 minimum wage. Following notice and comment, the Department of Labor issued a rule implementing the executive order. Five states (Nebraska, Idaho, Indiana, South Carolina, and Arizona) challenged enforcement of the minimum wage mandate. Four of those states argued on appeal that the executive order and implementing rule violate other laws. The district court dismissed the action. Reversing, the Ninth Circuit stated: “We conclude that the Plaintiff States have stated legally sufficient claims and therefore reverse the district court’s order dismissing the complaint. We also vacate the district court’s order denying the Plaintiff States a preliminary injunction and remand for further proceedings consistent with this opinion.” (State of Nebraska v. Su (9th Cir., Nov. 5, 2024) 121 F.4th 1.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/11/05/23-15179.pdf
Party to Marital Dissolution Did Not Demonstrate Duress or Mental Incapacity in the Proceeding.
In a marital dissolution proceeding, the family court denied the wife’s request to set aside the judgment. She contended that pursuant to Family Code § 2122, subdivision (c) and (d), she was under duress and mental incapacity during the dissolution proceeding. The Family Code does not define mental incapacity or duress. The Court of Appeal found guidance in Probate Code § 810, which governs an individual’s ability to make decisions regarding the person’s assets, medical options, and whether to marry, and in Code of Civil Procedure § 372, subdivision (a)(4), which concerns an individual’s ability to make decisions regarding an ongoing action or proceeding. Affirming, the appeals court stated: “We conclude a person lacks mental capacity within the meaning of [Family Code] section 2122 when the person suffers from a mental deficit that significantly impairs his or her ability to understand and appreciate the nature or consequences of his or her actions or the family law proceeding. Susan presented evidence she had a mental deficit, but she did not meet her burden to show she was incapable of understanding and appreciating the nature and consequences of not appearing in the dissolution proceeding over a two-year period, including the trial. Nor did she show she was incapable during that period of appearing in court (remotely), responding to discovery, responding to her attorney, or requesting an accommodation from the court. While these tasks may have been difficult for Susan due to her ongoing mental health issues, such difficulty does not rise to the level of mental incapacity. Nor did Susan make a showing of duress, that is, that her husband Troy intentionally used threats or pressure to induce her not to appear or participate in the dissolution proceeding.” (In re Marriage of Diamond (Cal. App. 2nd Dist., Div. 7, Nov. 5, 2024) 106 Cal.App.5th 550.)
Plaintiffs Ordered to Pay HOA’s Attorney Fees After Opting Not to Amend Complaint Against HOA.
Plaintiff condominium owners sued their homeowners association (HOA). The trial court sustained the HOA’s demurrer without leave to amend for part and with leave to amend to two causes of action. Plaintiffs opted not to amend and filed a motion to dismiss without prejudice. The HOA filed a motion to dismiss with prejudice. The trial court granted the HOA’s request for dismissal and awarded the HOA attorney fees. Affirming, the Court of Appeal stated: “The Haidets did not timely amend their claims against the HOA, and the HOA filed a request for dismissal with prejudice. Thus, under a plain application of [CCP] section 581, subdivision (f)(2), the court was authorized to dismiss the HOA with prejudice. [¶] . . . [¶] . . . The HOA obtained all of its litigation objectives through dismissal of all claims against it. The trial court did not abuse its discretion by awarding fees attributable to the HOA’s defense of the action as a whole.” (Haidet v. Del Mar Woods Homeowners Association (Cal. App. 4th Dist., Div. 1, Nov. 5, 2024) 106 Cal.App.5th 530.)
Court Erred in Ordering Criminal Defendant Not to Disclose Police Officer’s Dishonesty.
After petitioner was charged with murder, the prosecution notified defense counsel that one of the investigating officers received a sustained finding of dishonesty and that the officer’s police department intended to publish records related to that finding under Penal Code § 832.7, subdivision (b)(1)(C), which makes such records nonconfidential and subject to public inspection. Defense counsel filed a request with the officer’s department under the California Public Records Act (Gov. Code, § 7920.000 et seq.), seeking records related to the officer’s sustained finding of dishonesty. The trial court ordered the officer’s department to disclose those records, and it issued a protective order under Evidence Code § 1045, subdivision (e), precluding defense counsel from sharing the records with anyone outside the lawyers, investigators, experts, and other professionals working on petitioner’s defense. Petitioner filed a petition for an extraordinary writ of mandate, seeking to vacate the trial court’s protective order. Issuing a writ of mandate, the Court of Appeal stated: “[A]s the Department acknowledged below, those records are nonconfidential and subject to public inspection under [Penal Code] section 832.7, subdivision (b)(1)(C). A protective order issued under Evidence Code section 1045, subdivision (e), is intended to protect ‘confidential’ law enforcement personnel records.” (Banuelos v. Superior Court of Los Angeles County (Cal. App. 2nd Dist., Div. 8, Nov. 5, 2024) 106 Cal.App.5th 542.)
Despite Language in Settlement Agreement that Agreed Attorney Fees Were in Full Amount, Plaintiff Was Entitled to Additional Fees to Enforce Agreement.
In an action under the federal and state Voting Rights Acts (52 U.S.C. § 10301(c); Elec. Code, § 14027), the parties entered into a stipulated settlement agreement, which also provided for attorney fees of $300,000, incurred to date. The stipulated settlement agreement reads in relevant parts: “$300,000 in full satisfaction of attorneys’ fees and litigation expenses in this Action consistent with Elections Code section 14030 . . . . The City accepts plaintiffs’ attorneys’ statement for this claim and representation that it is based on actual time and expenses incurred. . . . except as otherwise expressly provided in this Stipulation, each party shall bear its own costs, expenses, and attorneys fees arising out of or relating to the Action. [¶] . . . [¶] . . . the settlement reflected in this Stipulation contemplates the extinguishment of all such Claims, except for rights to enforce this Stipulation.” Later, a motion to enforce was filed by plaintiff, and plaintiff requested more fees, which the trial court denied. The Court of Appeal reversed, stating: “We conclude plaintiffs, under the plain language of the stipulated judgment, were entitled to seek attorney fees incurred in the effort to enforce the stipulated judgment’s terms.” (Robles v. City of Ontario (Cal. App. 4th Dist., Div. 3, Nov. 6, 2024) 106 Cal.App.5th 574.)
Department of Education Applied Wrong Standard in Plaintiff’s Request to Be Recognized as a Nonprofit.
Plaintiff is a private university in Arizona that applied to the United States Department of Education to be recognized as a nonprofit institution under the Higher Education Act of 1965 (20 U.S.C. § 28; HEA). The department denied the application. Plaintiff sued, alleging that the department’s decisions were arbitrary and capricious under the Administrative Procedure Act (5 U.S.C. § 551 et seq.). The district court granted summary judgment for the department. The Ninth Circuit noted the correct HEA standards required the department to determine whether plaintiff was owned and operated by a nonprofit corporation and whether plaintiff satisfied the no-inurement requirement. Reversing, the appeals court stated: “We conclude that the Department applied the wrong legal standards in evaluating [plaintiff]’s application.” (Grand Canyon University v. Cardona (9th Cir., Nov. 8, 2024) 121 F.4th 717.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/11/08/23-15124.pdf
Trial Court Erred in Confirming Interim Arbitration Award.
Plaintiff appealed an order confirming an interim arbitration award in favor of defendants as well as an order vacating a subsequent final award for plaintiff. On appeal, plaintiff contended governing law authorized the arbitrator to decide whether its interim award resolved all issues necessary to an ultimate determination of the controversy, and the arbitrator expressly reserved a final determination of that issue for further briefing when she entered the interim award. Reversing, the Court of Appeal stated: “Because the interim award was not a final award, [plaintiff] argues the trial court had no jurisdiction to confirm it or to use it as a basis for vacating the subsequent final award. We agree with [plaintiff]. We therefore reverse and vacate the order with directions to enter a new order confirming the final arbitration award served on September 30, 2022.” (Ortiz v. Elmcrest Care Center, LLC (Cal. App. 2nd Dist., Div. 3, Nov. 7, 2024) 106 Cal.App.5th 594.)
Public Defender Removed for Acts “Potentially in Violation of the Racial Justice Act.”
The prosecutor in a criminal case filed a “Motion to Disclose Exculpatory Evidence to Defendant & Evaluate [deputy public defender’s] Conflict of Interest.” The motion was accompanied by a declaration from a prosecutor, stating that she engaged in a plea negotiation with the deputy public defender, and, in the course of that negotiation, the deputy public defender became frustrated and stated: “‘I really don’t care.’ [sic] . . . [R]ead between the lines . . . . I am a white man. What do I care? It’s not my people we are incarcerating.’” When the prosecutor asked for clarification about the remarks, the deputy public defender stated that he expected the prosecutor to show more leniency because the prosecutor and defendant appeared to be the same race, stating: “‘[Y]ou are part of the problem. Look around you, all the people being incarcerated are your people. I will just look like a mean defense attorney. You should be part of the solution.’ Based upon this exchange, the prosecutor requested that the deputy public defender’s remarks be disclosed to petitioner and that the trial court evaluate whether a conflict existed requiring removal of the deputy public defender from petitioner’s representation in this matter.” The trial court held a hearing and thereafter issued the order after receiving evidence that the deputy public defender currently assigned to represent him made remarks invoking defendant’s race as a factor to consider during plea negotiations, potentially in violation of the Racial Justice Act (Pen. Code, § 745). Declining to issue extraordinary relief, the Court of Appeal stated: “We conclude that petitioner has failed to establish an abuse of discretion warranting reversal of the trial court’s order under the circumstances presented in this case.” (Sanchez v. Superior Court of San Bernadino County (Cal. App. 4th Dist., Div. 2, Nov. 8, 2024) 106 Cal.App.5th 617.)
Plaintiff Lost on Wage and Hour Claims Before Arbitrator; Court Dismissed PAGA Claim Under Issue Preclusion.
Plaintiff sued defendant for wage and hour violations; he also sought civil penalties and wages pursuant to the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). The trial court ordered arbitration of plaintiff’s wage and hour claims, and stayed the single PAGA cause of action. The arbitrator then found for defendant and against plaintiff on the alleged wage and hour Labor Code violations. After the trial court entered judgment on the arbitration award, defendant brought a motion for judgment on the pleadings asserting that the remaining PAGA cause of action was barred by issue preclusion since plaintiff’s standing as an aggrieved employee was predicated on the disproven wage and hour violations. The trial court granted the motion and dismissed plaintiff’s case. On appeal, plaintiff contended the elements of issue preclusion had not been satisfied. Affirming, the Court of Appeal stated: “Rodriguez’s PAGA standing as an aggrieved employee was predicated on the Labor Code violations he failed to prove in arbitration. The trial court thus properly found that the arbitration award and resulting judgment preclude Rodriguez from relitigating the Labor Code violations to prove standing to maintain the PAGA cause of action.” (Rodriguez v. Lawrence Equipment, Inc. (Cal. App. 2nd Dist., Div. 3, Nov. 8, 2024) 106 Cal.App.5th 645.)
Gender Discrimination Case Sent Back to Trial Court.
Plaintiff, a female flight attendant, was terminated by her employer for having a social media account featuring pictures of herself wearing her airline uniform and showing her in a bikini. She sued under many causes of action. In opposition to the airline’s motion for summary judgment, plaintiff included evidence of three male employees who were in uniform in suggestive poses. The trial court granted summary judgment. The Court of Appeal reversed under the cause of action for violation of the Fair Employment and Housing Act (Gov. Code, § 12900), stating: “While United identifies some differences between Wawrzenski’s conduct and experience and those of the male employees, there were also many similarities.” (Wawrzenski v. United Airlines, Inc. (Cal. App. 2nd Dist., Div. 7, Nov. 12, 2024) 106 Cal.App.5th 663.)
Orders suspending Trustees and Appointing Interim Trustees in Probate Court Are NOT Directly Appealable.
The first paragraph of the Court of Appeal opinion states: “This case presents a novel or nearly novel recurring question of appealability: Are orders suspending trustees and appointing interim trustees in probate court directly appealable? We publish this opinion to provide a clear answer: they are not.” (Young v. Hartford (Cal. App. 4th Dist., Div. 3, Nov. 12, 2024) 106 Cal.App.5th 730.)
No Showing Debt Collector Made a Bona Fide Mistake When Actual Debtor Had Different DOB and SSN from Person Debt Collector Pursued.
Plaintiff/cross-defendant (LVNV) sued defendant/cross-complainant (Rodriguez) in a debt collection action. Rodriguez cross-complained, (1) claiming she had been the victim of identity theft, and (2) that LVNV’s debt collection action violated the federal Fair Debt Collection Practices Act (15 U.S.C. § 1692, subd. (e) FDCPA) and its California counterpart, the Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1798.92). After initial discovery, Rodriguez determined LVNV had sued the wrong Yolanda Rodriguez, because the debt LVNV was attempting to collect was incurred by a Yolanda Rodriguez with a different date of birth and Social Security number than hers. Once this was demonstrated to LVNV, it dismissed the suit. However, Rodriguez declined to dismiss her crossclaim. LVNV filed an anti-SLAPP motion (Code Civ. Proc., § 425.16 et seq.), which the trial court granted. Reversing, the Court of Appeal stated: “The FDCPA creates a strict liability cause of action for attempts to collect a debt that misrepresent or falsely present the ‘character’ or ‘amount’ of a debt owed. . . . The FDCPA was enacted in order to curb improper and abusive debt collection practices, and it does so by placing the onus on debt collectors to ensure they attempt to collect only legitimate debts from the people who owe them. The legislative history of the FDCPA shows Congress was not merely concerned with misrepresentations during the attempted collection of valid debts, but also the attempted collection of debts from people who in fact owed no money at all. While there is a narrow affirmative defense for ‘bona fide’ mistakes that a debt collector may avail themselves of to prevent liability under the FDCPA, there is no suggestion LVNV sought to or could demonstrate such a defense here.” (LVNV Funding, LLC v. Rodriguez (Cal. App. 5th Dist., Nov. 12, 2024) 106 Cal.App.5th 717.)
FBI Improperly Viewed Image Without Warrant.
This case concerns a child-pornography investigation of two CyberTipline Reports that the National Center for Missing and Exploited Children (NCMEC) forwarded to the Federal Bureau of Investigation (FBI). An agent investigating one of the tips viewed two images that NCMEC received from Facebook without a warrant. One of the images that the agent viewed matched the digital identification, known as a hash value, of an image that was previously reported to NCMEC as depicting child exploitation. The images showed a clothed prepubescent girl on her knees with a white liquid substance on and around her mouth. The rest of the girl’s face was obscured by a cartoon overlayed on the image. Adult feet were depicted in one of the images. An FBI agent investigated and found defendant living in Laveen, Arizona. He had custody of a young girl who the agent thought resembled the child in the images. Viewing the images led the agent to, among other things, obtain a search warrant for defendant’s residence. Defendant was present during the search, and he made incriminating statements to law enforcement, and numerous illicit images were found on his cellphone. Defendant later moved to suppress this evidence, arguing that it was obtained because the agent unlawfully viewed the Facebook images. The Government did not dispute that the agent unlawfully viewed these images, but it argued that suppression is unwarranted because two exceptions to the Fourth Amendment’s warrant requirement apply: officer good faith and inevitable discovery. Reversing, the Ninth Circuit stated: “[W]e conclude that the good-faith and inevitable-discovery exceptions to the warrant requirement do not apply. The district court’s denial of Holmes’s motion to suppress is reversed and the case is remanded for further proceedings.” (United States v. Holmes (9th Cir., Nov. 13, 2024) 121 F.4th 727.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/11/13/22-10266.pdf
Unreasonable Restraint on Alienation of Property.
Decedent named her three children as the beneficiaries of her living trust, the assets of which included her long-time home. Upon her death, each sibling was to receive a one-third fee simple interest in the home. In her last amendment to the trust instrument, however, decedent decreed the siblings could only sell their respective shares for an amount well below the market value and only to each other, citing her desire to keep the home in the family. After decedent passed, two of the children petitioned the probate court for an order determining the trust instrument unreasonably restrained their ability to alienate their interests in the real property. The trial court granted the requested relief and declared the amendment void. Affirming, the Court of Appeal stated: “Because [decedent’s] amendment imposed an unreasonable restraint on alienation in violation of Civil Code section 711, we affirm the probate court’s order.” (Godoy v. Linzner (Cal. App. 2nd Dist., Div. 7, Nov. 13, 2024) 106 Cal.App.5th 765.)
Forum Selection Clause Not Upheld Because It Diminished Plaintiff’s Right to a Jury Trial if Required to Litigate in Another State.
Plaintiff is a stand-up comedy venue in Los Angeles. COVID-19 social distancing restrictions forced it to close for more than a year beginning in March 2020. In July 2021, the plaintiff engaged defendant accounting firm that held itself out as having expertise in the Coronavirus Aid, Relief, and Economic Security Act (15 U.S.C., §§ 9001, et seq.) to assist it in applying for a Shuttered Venue Operator Grant from the United States Small Business Administration. The complaint alleged plaintiff worked with defendant to assemble documentation needed for a grant application. However, before it was able to apply, plaintiff found the program had recently ended. Plaintiff alleged that defendant did not warn it of the program’s pending expiration, and had it done so, plaintiff would have timely submitted its application. Plaintiff further alleged that defendant’s acts and omissions prevented it from obtaining an $8.5 million grant. The trial court dismissed the action based on improper venue because the parties’ agreement provided for exclusive jurisdiction and venue in Washington state. Defendant contended the parties’ agreement contained a predispute jury waiver, which was unenforceable in California but could be enforced in Washington. Reversing, the Court of Appeal agreed with plaintiff that defendant did not show plaintiff’s right to a jury trial would not be diminished if the case were litigated in Washington. (Comedy Store v. Moss Adams LLP (Cal. App. 2nd Dist., Div. 4, Nov. 14, 2024) 106 Cal.App.5th 784.)
Propensity Evidence Found Not to Violate Due Process Clause in Sexual Assault Case.
Defendant was accused of various sexual assault crimes. A male coworker testified defendant forced himself on the coworker, pinned him down, and tried to penetrate him. The district court admitted the testimony of defendant’s previous girlfriend about defendant’s frequent engagement in forcible nonconsensual sex over her objections. Under Federal Rule of Evidence 413, “[i]n a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault.” Under rule 403, federal courts retain discretion to exclude prejudicial evidence. Defendant was convicted. On appeal, he contended rule 413 violates the Fifth Amendment’s due process clause. Affirming, the Ninth Circuit stated: “Consistent with our precedent and that of other circuits, we hold that Rule 413 is constitutional.” But the appeals court cautioned lower courts to be careful, stating: “District courts should carefully apply Rule 403 in these circumstances, mindful of the five non-exclusive factors we have identified: (1) ‘the similarity of the prior acts to the acts charged,’ (2) the ‘closeness in time of the prior acts to the acts charged,’ (3) ‘the frequency of the prior acts,’ (4) the ‘presence or lack of intervening circumstances,’ and (5) ‘the necessity of the evidence beyond the testimonies already offered at trial.’” (United States v. Porter (9th Cir., Nov. 15, 2024.) 121 F.4th 747.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/11/15/22-10286.pdf
Creative Argument Concerning Lack of a Record of Trial Proceedings Rejected.
After defendant lost in an unlawful detainer action, defendant contended an inadequate record precluded relief as there was no reporter’s transcript of witness testimony. According to a court clerk’s declaration, “no audible [electronic] recording” for the trial “could be located” except for the judicial officer’s oral ruling for plaintiff. After trial, defendant cited Code of Civil Procedure § 914, which gives trial and reviewing courts the power to vacate and set aside a judgment and order a new trial when “the right to a phonographic report has not been waived and when it shall be impossible to have a phonographic report of the trial transcribed by a stenographic reporter” because of specified reasons such as the death or disability of a court reporter. Rejecting defendant’s argument, an appellate section of the Santa Clara Superior Court stated: “Section 914, then, by a plain reading does not apply to trial proceedings, as here, that were officially electronically recorded and where no live ‘stenographic’ court reporter was present.” (Domus IV Investors, LLC v. Wang (Santa Clara Sup. Ct., App. Div., Nov. 15, 2024) 106 Cal.App.5th Supp. 1.)
Setting Aside a Judgment or Order for Improper Service.
Code of Civil Procedure § 473, subdivision (d) provides in relevant part that a court “may . . . on motion of either party after notice to the other party, set aside any void judgment or order.” Under this provision, a party may move to vacate a judgment on the ground of improper service of process. A line of decisions has held that such motions must be made within a “reasonable time” if the challenged judgment is not void on its face and its invalidity must be established by extrinsic evidence. To set the outer limit for what constitutes a reasonable time, courts have borrowed the two-year time limit of Code of Civil Procedure § 473.5, which applies where proper constructive service was given but the defendant did not receive actual notice. The California Supreme Court held these decisions are not correct, concluding this judicially created rule finds no footing in the statute’s text, has not been adopted by the Legislature, and lacks any sound justification. The Supreme Court held a defendant challenging a default judgment for improper service more than two years after entry is limited to filing an independent equitable action, stating: “[A]lthough [defendant] cites a number of cases for the general proposition that a void judgment may be attacked at any time [citation], that proposition is not in dispute. Rather, the question here is a narrower one: whether those in [defendant’s] position may bring a motion in the original action more than two years—in his case almost nine years—after the default judgment’s entry, or whether they must file an independent equitable action.” (California Capital Insurance Company v. Hoehn (Cal., Nov. 18, 2024) 558 P.3d 590.)
Securities Fraud Case Dismissed Because Pleading Lacked Particularity of the Alleged Facts.
Plaintiff in a securities fraud class action alleged defendant and its officers and directors made dozens of materially false statements about the technical capabilities of its products. Finding that plaintiff had not adequately pleaded that the statements were false, the district court dismissed the action. Affirming dismissal, the Ninth Circuit stated: “Because the relevant cloud-related terms in the challenged statements lack a plain or ordinary meaning, Klin had to ‘plead facts’ supporting his definitions of those terms. [Citation.] Because he did not do so, the district court correctly dismissed the claims based on those statements.” (In re Cloudera, Inc. (9th Cir., Nov. 19, 2024) 121 F.4th 1180.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/11/19/22-16807.pdf
A Minute Order Does Not a Judgment Make.
A losing party purported to appeal a judgment of dismissal, but there was no judgment in the appellate record. Rather, there was a minute order that stated a nonsuit was entered. The Court of Appeal invited appellant to obtain a judgment of dismissal. Three months later, appellant filed the same minute order, but this time the trial court added its signature and the phrase “it is so ordered.” The appeals court dismissed the appeal, stating: “We urge trial courts that have made dispositive rulings in civil cases (including this particular trial court on remand) to take the time to enter a separate, signed document, clearly labeled as a ‘judgment’ or ‘order of dismissal.’ We likewise urge parties in this situation to submit appropriate proposed judgments and to advocate for entry of a separate appealable judgment rather than allowing uncertainty to fester. . . . [¶] The appeal is dismissed, without prejudice to appellant filing a notice of appeal from the judgment once it is entered by the trial court.” (Blauser v. Dubin (Cal. App. 4th Dist., Div. 3, Nov. 19, 2024) 327 Cal. Rptr. 3d 391.)
Lawyer on the Hook for $50,000.
Defendant Kovtun is a lawyer and her client was Mark, the husband of Jennifer, the plaintiff in this action. Kovtun held a meeting in her office with Mark and Jennifer, after Mark was convicted of domestic violence and while a criminal protective order was in place prohibiting Mark from having any contact with Jennifer. The current opinion of the Court of Appeal states: “During the meeting, Mark and Kovtun verbally and emotionally abused Jennifer, and Kovtun threatened to remove their daughter from Jennifer’s custody if she did not sign a custody agreement she had prepared. Before leaving the meeting, Jennifer signed the agreement and then contacted the police.” Thereafter, Mark was criminally charged and convicted of violating the criminal protective order. Kovtun then sued Jennifer in small claims court for recording the meeting without her consent, which prompted Jennifer to sue Kovtun. On Jennifer’s causes of action for negligence, intentional infliction of emotional distress, intentional misrepresentation, and negligent misrepresentation, the superior court entered judgment against Kovtun for $50,000 in damages. On appeal, Kovtun contended Jennifer’s claims were barred by the statute of limitations in Code of Civil Procedure § 340.6, and that the litigation privilege in Civil Code § 47, subdivision (b) shielded her from liability. Affirming, the Court of Appeal stated: “We conclude Kovtun waived the section 340.6 statute of limitations defense by her failure to timely and properly plead it, and the litigation privilege does not apply to Kovtun’s communications.” (Shenefield v. Kovtun (Cal. App. 4th Dist., Div. 1, Nov. 20, 2024) 2024 WL 4831345.)
Injunction Contrary to Statute.
Plaintiff brought a taxpayer action under Code of Civil Procedure § 526a against the California Highway Patrol (CHP) regarding its vehicle impound procedures. The trial court enjoined the CHP from continuing with its procedures. On appeal, the CHP contended its procedures are consistent with the law. Reversing, the Court of Appeal stated: “Absent a finding that Vehicle Code section 14602.6 has been declared unconstitutional, the trial court was obligated to apply the statute as written. Its failure to do so constitutes reversible error.” (Mann v. State of California (Cal. App. 2nd Dist., Div. 2, Nov. 20, 2024) 2024 WL 4834847.)
Police Gangs.
Citing Penal Code §§ 13670 and 13510.8, the Office of the Inspector General (OIG) for the County of Los Angeles sent a letter to 35 individual Los Angeles Sheriff’s Department deputies selected based on information gleaned from personnel records. The letter directed the deputies to appear and answer questions about their knowledge of and involvement in law enforcement gangs, to display certain tattoos located on lower legs or arms, and to provide photographs of such gang-associated tattoos on their bodies. The sheriff ordered the deputies to participate in the interviews, warning that refusal would be grounds for discipline, including termination. The deputies’ union, the Association for Los Angeles Deputy Sheriffs (ALADS) filed an unfair labor practice claim, contending violation of the deputies’ Fourth and Fifth Amendment rights. ALADS also contended that a meet and confer obligation under the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.; MMBA) was triggered. The trial court rejected ALADS’ constitutional claims but, concluding the interview directive triggered the meet-and-confer obligations under the MMBA, enjoined the OIG’s interviews pending adjudication of the unfair labor practice claim or the completion of the MMBA’s meet-and-confer process, whichever came first. The county appealed. Affirming, the Court of Appeal stated: “We conclude the trial court committed no error in determining ALADS showed a probability of prevailing on its claim that the interview directive triggered the duty to meet and confer (or bargain) with ALADS under the MMBA and we find the trial court acted within its discretion in balancing of the interim harm.” (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (Cal. App. 2nd Dist., Div. 5, Nov. 20, 2024) 2024 WL 4834247.)
After Habeas Corpus Petition Granted, Civil Suit Tossed.
Previously, the Court of Appeal granted plaintiff’s petition for writ of habeas corpus based on a finding that a Riverside County public defender provided him ineffective assistance of counsel in a probation revocation hearing. In the instant action, plaintiff sought damages from the county. The county denied plaintiff’s claim, finding it was not presented within six months of accrual pursuant to Government Code § 911.2. Plaintiff’s application for leave to file a late claim was also denied. He filed a petition for relief in the superior court pursuant to Government Code § 810 et seq., which the court denied. Affirming, the Court of Appeal stated: “We conclude his claim arises in tort and therefore falls under the six-month claims period in section 911.2 and the trial court did not abuse its discretion in finding that he did not show mistake, inadvertence, surprise, or excusable neglect.” (McCurdy v. County of Riverside (Cal. App. 4th Dist., Div. 1, Nov. 21, 2024) 2024 WL 4847685.)
https://www.courts.ca.gov/opinions/documents/D083420.PDF
Party in Postjudgment Enforcement Proceedings.
Plaintiff, a judgment creditor, obtained a judgment in Israel against defendant. A New York court issued a judgment against defendant in a New York state court case to enforce the Israeli judgment. In postjudgment enforcement proceedings, defendant admitted that his friend, the objector and appellant here, was paying all of defendant’s expenses to support defendant’s lavish lifestyle, often with the objector’s American Express credit cards. When plaintiff subpoenaed the objector’s American Express statements, the objector filed a motion to quash the subpoena in California. The court granted the motion after it found the subpoena was procedurally defective. The judgment creditors served a second document subpoena on the objector. When the objector did not respond, the judgment creditors petitioned the California court for an order directing compliance. The California trial court granted that motion. When the objector’s responses consisted chiefly of American Express statements redacted so heavily that they revealed no information, the judgment creditor filed a motion to compel appropriate discovery responses. The trial court granted the motion and ordered the objector to submit to a “examination of his redactions to ensure that only [the objector’s] own charges have been redacted” and to otherwise respond to outstanding discovery without objection. The question presented on appeal was: “Does a trial court have the authority to impose attorney’s fees against a person who violated a court order compelling discovery issued during the post-judgment enforcement proceedings—even though that person was not a party to the lawsuit giving rise to the judgment being enforced?” The Court of Appeal answered the question: “We conclude the answer is ‘yes’ because that person is a party to the post-judgment enforcement proceedings.” (Ofek Rachel, Ltd. v. Zion (Cal. App. 2nd Dist., Div. 2, Nov. 21, 2024) 2024 WL 4849692.)
Heightened Duty of Common Carrier Held Not to Apply When Waiting in Line for Roller Coaster Ride.
Plaintiff was at Magic Mountain with a disability pass issued by the amusement park. While in the holding area for the ride, plaintiff leaned forward on one of the railings, draped her arms over its top, and dangled her hand between the posts. The ride operator announced for everyone to “stand clear,” but plaintiff did not pull back. Her right hand was “smashed.” A jury found for Magic Mountain. On appeal, plaintiff contended error because the trial court did not instruct the jury on the duty of a common carrier. Affirming, the Court of Appeal stated: “Does this heightened duty apply—and hence warrant jury instructions on that duty—when the undisputed facts show that the plaintiff injured her hand while in line to board a rollercoaster, but before she was subject to final inspection by amusement park employees and while she was still able to exit from the platform and bypass the ride itself? We hold that the heightened duty does not apply, and that the trial court properly declined the plaintiff’s proffered instructions.” (Smith v. Magic Mountain LLC (Cal. App. 2nd Dist., Div. 2, Nov. 21, 2024) 2024 WL 4850396.)
No Constructive Notice of Dangerous Condition in Shopping Center.
Plaintiff slipped and fell on what appeared to be oranges in a shopping center. She sued the shopping center and the janitorial company for premises liability. The trial court granted summary judgment for defendants. Affirming, the Court of Appeal stated: “[D]efendants had adopted employee training and maintenance programs reasonably calculated to ensure regular and active inspections of the floors in the common areas of the shopping center. . . . We therefore agree with the trial court that, under those circumstances, defendants lacked constructive knowledge of the spilled oranges in time to prevent plaintiff’s fall, and they cannot be held liable in negligence for her injuries.” (Gonzalez v. Interstate Cleaning Corporation (Cal. App. 4th Dist., Div. 2, Nov. 21, 2024) 2024 WL 4850384.)
No Statutory Basis for Ordering Vocational Evaluation of Mother Who Is Not Working.
The father of two children requested a vocational evaluation (pursuant to Family Code § 3558) of the children’s mother, stating the mother is a licensed dentist who had no intention of seeking employment. The mother opposed, arguing that under Family Code §§ 4058 and 4331 such an evaluation was improper because this was not a dissolution case, but a case involving the Department of Child Support Services seeking child support from the father. The family court ordered the mother to undergo a vocational evaluation. The mother sought extraordinary relief. The Court of Appeal granted a peremptory writ of mandate, stating: “[T]he court erred by granting Wolf’s request that Mercado undergo a vocational evaluation because there was no statutory basis for the orders.” (Mercado v. Superior Court of Orange County (Cal. App. 4th Dist., Div. 3, Nov. 21, 2024) 2024 WL 4850336.)
Physician’s Termination Supported by Substantial Evidence.
Plaintiff began working as a general surgeon at a hospital even though he was not board certified as a surgeon. At a certain point, the hospital notified plaintiff that the hospital’s rules required that he become board certified within five years or have had privileges at an accredited hospital for at least ten years. The notification was sent three days prior to the expiration of the five years. A few months later, the hospital suspended plaintiff’s privileges. Plaintiff sued the hospital for unlawful retaliation, contending he was terminated after reporting improprieties. After a bench trial, judgment was entered for the hospital. Affirming, the Court of Appeal stated: “[S]ubstantial evidence supports the trial court’s finding that Center did not discriminate or retaliate against Slone because of his complaints about health care safety.” (Slone v. El Centro Regional Medical Center (Cal. App. 4th Dist., Div. 1, Nov. 26, 2024) 2024 WL 4880902.)
Off-duty police officer’s conduct “may fairly be regarded as an outgrowth of his employment,” Court of Appeal.
A police officer was an employee of a school district. In an incident related to something that had earlier occurred on school property, the police officer assaulted plaintiff. Later, the police officer pled guilty to assault and battery on plaintiff. Thereafter, plaintiff sued the school district, and the trial court sustained the district’s demurrer. Reversing, the Court of Appeal stated: “Officer Brown’s off-duty misconduct while investigating a suspected theft of his cell phone and wielding his authority as a peace officer for the District may fairly be regarded as an outgrowth of his employment.” (Juarez v. San Bernardino City Unified School District (Cal. App. 4th Dist., Div. 1, Nov. 25, 2024) 2024 WL 4877481.)
No Duty Owed by Paramedics Who Left Accident Scene When Plaintiff Refused Treatment.
Defendant paramedics responded to the scene of an auto accident involving plaintiff. Plaintiff told the paramedics she was not injured and did not want medical assistance. They warned her she may have suffered a serious injury even though not yet symptomatic and urged her to accept transportation to the hospital for examination by a physician. She refused and the paramedics left the scene. Hours later, plaintiff suffered a serious debilitating stroke attributable to a hypertensive crisis triggered by the collision. She sued the paramedics and the city that employed them, alleging they owed her a duty of care and breached that duty through gross negligence. The trial court granted defendants’ motion for summary judgment. Affirming, the Court of Appeal stated: “[A]fter [plaintiff] stated, repeatedly, that she did not want or need medical assistance, [the paramedic] did not undertake a medical examination and therefore did not, under the negligent undertaking doctrine, assume a duty to conduct such an examination meeting the applicable standard of care.” (Murphy v. City of Petaluma (Cal. App. 1st Dist., Div. 1, Nov. 25, 2024) 2024 WL 4880016.)
The Continuing Saga of Proving Up the Cost of Medical Expenses.
A truck rear ended plaintiff’s stopped vehicle and plaintiff sued the driver and truck owner for his serious medical injuries. A jury awarded $3,299,455. The trial court awarded costs and interest totaling $1,645,685.88. Before trial, in ruling on a motion in limine, the trial court permitted plaintiff to present evidence of the reasonable value of the medical services he received that were subject to a lien. The trial court denied defendant’s motion to preclude plaintiff from presenting evidence that plaintiff incurred anything for past medical services above what he actually paid for those services to the extent it sought to prevent the plaintiff from presenting evidence of the reasonable value of services received that were subject to the lien. The Court of Appeal vacated the award for past medical services, stating: “Evidence that the ‘reasonable value’ of services plaintiff received—other than when he was in the emergency room—was more than he and his insurer paid for them pursuant to negotiated rates should not have been admitted in the trial of this matter.” Vacating the award for future medical services for lack of substantial evidence, the appeals court stated the testimony supporting the need for future services “established no meaningful degree of certainty that a permanent stimulator eventually would be used or useful. The evidence established only that a trial to determine whether plaintiff was a likely candidate for the treatment was in the future anticipated.” The appeals court remanded the matter for a new trial for past and future medical expenses; otherwise, the court affirmed the judgment. (Yaffee v. Skeen (Cal. App. 3rd Dist., Nov. 25, 2024) 2024 WL 4887969.)
Sperm Donor Wants to Be Declared a Parent.
A lesbian couple sought to conceive a child via in vitro fertilization (IVF) and chose plaintiff as their sperm donor, which sperm was submitted to a licensed physician. A contract was executed stating plaintiff was the donor with the “clear understanding . . . he would not demand, request, or compel any guardianship or custody with any child born from the artificial insemination procedure. . . . that he fully understands that he would have no paternal rights whatsoever with said child.” The agreement provided for plaintiff and any children born of his sperm to have weekly visitation of up to 24 hours. A reproductive health center created an embryo using one of the women’s ovum and plaintiff’s sperm, and a physician implanted the embryo in the woman whose ovum was used. Within a month of the baby’s (named N.) birth, the other woman petitioned the court for stepparent adoption and the adoption order was entered three months later. Plaintiff signed a consent to the adoption. For 11 years, plaintiff visited with N. But nearing 12 years old, N. wanted no more visits with plaintiff. Plaintiff petitioned the court to establish a parental relationship with N., requesting joint custody and visitation. The trial court granted the women’s motion to quash plaintiff’s petition. Affirming, the Court of Appeal stated: “We are not unsympathetic to appellant’s position. Our laws have continued to evolve to allow for many types of legally recognized parents and families. Unfortunately for appellant, those laws do not allow him or us to ignore the consequences of a final adoption order, which gave N.’s legal parents, not the courts, the right to decide whether and with whom she spends her time.” (C.C. v. L.B. (Cal. App. 2nd Dist., Div. 6, Nov. 26, 2024) 2024 WL 4888002.)
DEA’s Use of ALJs Is Constitutional.
The Drug Enforcement Agency (DEA) revoked plaintiff’s (a licensed physician) certificate of registration to dispense controlled substances after he was found prescribing high-risk controlled substances outside the usual course of professional practice and not for a legitimate medical purpose. A DEA administrative law judge (ALJ) rejected plaintiff’s contention that his medical records were lacking because he depended on his photographic memory. Plaintiff then argued the DEA’s ALJs are unconstitutionally insulated from removal by two layers of “for-cause” protections. The Ninth Circuit rejected that argument as well, stating: “In sum, we conclude that the removal protections under 5 U.S.C. § 7521 are constitutional as applied to DEA ALJs.” (Rabadi v. U.S. Drug Enforcement Administration (9th Cir., Nov. 27, 2024) 2024 WL 4899531.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/11/27/22-70114.pdf