Litigation Update: February 2020

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, Reuben Ginsburg
  • Editors, Dean Bochner, Glenn Danas, Julia Shear Kushner, Jessica Riggin, Kenneth Wang, and David Williams
No Personal Jurisdiction Over Delaware Corporation.

When a Delaware corporation spun off its healthcare division to create a new Delaware company, the two companies agreed the new Delaware company would indemnify the original Delaware corporation for any liability resulting from many litigation matters. Among the matters was a class action in the Central District of California concerning surgical gowns sold by the original Delaware corporation. Punitive damages were ultimately awarded against the original Delaware corporation in that class action, and the new Delaware company filed suit in Los Angeles Superior Court seeking a declaratory judgment that it did not have to provide indemnity for the punitive damages award. The trial court granted the original Delaware corporation’s motion to quash. Affirming, the Court of Appeal stated: “The parties’ agreement to define the universe of required indemnity so broadly does not create jurisdiction to determine the meaning and enforceability of the Distribution Agreement everywhere around the world that liability might be had and indemnity required. To the contrary, the constitutionally required minimum contacts between the forum and the litigation must be present, and—as to this specific dispute—such contacts with California are lacking.” (Halyard Health, Inc. v. Kimberly-Clark Corp. (Cal. App. 2nd Dist., Div. 5, Dec. 6, 2019) 43 Cal.App.5th 1062.)

Childhood Sexual Abuse Claim Against Corporations.

Two plaintiffs sued Michael Jackson’s corporations, not Michael Jackson himself, for a years-long pattern of child sexual abuse. Code of Civil Procedure § 340.1 formerly required claims of childhood sexual abuse against third party nonperpetrators to be filed by the victim’s 26th birthday. These plaintiffs sued after their 26th birthdays, so the trial court dismissed their claims. Effective January 1, 2020, however, Code of Civil Procedure § 340.1 was amended to provide that a victim may now bring claims of childhood sexual assault against third party nonperpetrators until the victim’s 40th birthday.  Because the plaintiffs here sued before their 40th birthdays, the Court of Appeal reversed and remanded for further proceedings, stating: “The import of section 340.1, subdivisions (q) and (r) is clear: the Legislature intended to preserve and revive all nonfinal claims. Plaintiffs filed their lawsuits before their 40th birthdays and their cases remain pending on appeal, so they have not reached finality.” (Safechuck v. MJJ Productions, Inc. (Cal. App. 2nd Dist., Div. 8, Jan. 3, 2020) 43 Cal.App.5th 1094.)

Postjudgment Discovery Order.

Plaintiff obtained a judgment against defendant. In postjudgment collection efforts, defendant failed to respond, so plaintiff filed a motion to compel. The trial court ordered plaintiff’s attorney to pay monetary sanctions to defendant after finding ineffective service because there was no postage affixed to the envelope containing the discovery demand. Code of Civil Procedure § 684.120, subdivision (a) requires “postage paid” when service of a postjudgment paper is by mail. The Court of Appeal first found that plaintiff appealed from a nonappealable order but treated plaintiff’s appeal from the denial of his motion to compel discovery as a petition for writ of mandate. The appeals court then denied the petition because defendant was not required to respond to a discovery demand that was not served. With regard to the grant of sanctions against the lawyer, the Court of Appeal found that order was appealable, but that the lawyer had not demonstrated any error on the part of the trial court in granting those sanctions. (Dalessandro v. Mitchell (Cal. App. 2nd Dist., Div. 8, Jan. 3, 2019) 43 Cal.App.5th 1088.)

Huge Class Action Damages Award Upheld.

Defendant employs hundreds of truck drivers. Drivers in California sued defendant in a class action for violation of California’s labor laws. A jury awarded tens of millions of dollars in damages. Defendant appealed, contending the district court committed error every step of the way. The Ninth Circuit Court of Appeals affirmed, stating: “It is improper for this court to play armchair district judge. In the end, while Wal-Mart makes some compelling points, Wal-Mart raises no reversible error.” (Ridgeway v. Walmart, Inc. (9th Cir., Jan. 6, 2020) 946 F.3d 1066.)

Equalization of Trust Distribution.

Probate Code § 21135 provides that transfers of property to a person during the transferor’s lifetime will be treated as an at-death transfer to the person under certain conditions. All of these conditions require a writing. Decedent established a trust in 1980 in which most of its corpus would be distributed to his two children. In 1989, he began to keep track of money distributed to the two children on papers he referred to as the “Permanent Record.” After decedent’s death, one of the children filed a petition for instructions to equalize the distribution of assets from the trust. The trial court granted the petition and found that one child received $451,027 more than the other in lifetime distributions. Affirming, the Court of Appeal stated: “No special form or even the decedent’s signature is necessary to satisfy the writing required by section 21135, subdivision (a)(2).” (Sachs v. Sachs (Cal. App. 2nd Dist., Div. 6, Jan. 7, 2020) 44 Cal.App.5th 59.)

Can’t Appeal From a Statement of Decision.

After a court trial in which the two sides sued each other, the trial court concluded neither side proved the damages elements of their claims. One side appealed. In its order dismissing the appeal, the Court of Appeal stated: “Applied filed a notice of appeal from the court’s statement of decision (SOD), which is not a judgment or appealable order.” (Warwick California Corp. v. Applied Underwriters, Inc. (Cal. App. 1st Dist, Div. Jan. 7, 2020) 44 Cal.App.5th 67.)

Previously we reported:
Outside the Scope of Actionable Unfair Competition or Consumer Protection Claims.

Plaintiff filed a class action against a music producer, alleging claims under the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) and the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.), contending an album entitled “Michael” misleadingly represented that Michael Jackson was the lead singer on each of the ten vocal tracks, when in fact he was not the lead singer on three of those tracks. The trial court denied defendant’s anti-SLAPP motion. Reversing, the Court of Appeal stated: “Before the album was released, certain Jackson family members and others publicly claimed that Jackson was not the lead singer on the Disputed Tracks. Appellants disputed this claim. . . . Thus, the identity of the artist on the three Disputed Tracks was a controversial issue of interest to Michael Jackson fans and others who care about his musical legacy. . .  Under these circumstances, Appellants’ statements about the identity of the artist were not simply commercial speech but were subject to full First Amendment protection. They are therefore outside the scope of an actionable unfair competition or consumer protection claim in this case.” (Serova v. Sony Music Entertainment (Cal. App. 2nd Dist., Div. 2, Aug. 28, 2018) 26 Cal.App.5th 759.)

The latest:

The California Supreme Court granted review and thereafter transferred this case back to the Court of Appeal for reconsideration. Upon reconsideration of its prior decision in light of the California Supreme Court’s decision in Inc. v. Double Verify Inc. (2019) 7 Cal.5th 133, the Court of Appeal stated, “[I]n light of FilmOn, we conclude that our original decision was correct.” The appellate court explained that “the identity of the artist on the three Disputed Tracks was a controversial issue of interest to Michael Jackson fans and others who care about his musical legacy. By identifying the singer on the Disputed Tracks as Michael Jackson, Appellants’ challenged statements made a direct claim about the controversy itself. The statements were made publicly to an audience—potential purchasers of the album—that was likely to have an interest in the identity of the singer. And, although Appellants’ ultimate goal was presumably to sell albums by marketing songs sung by Michael Jackson, that goal did not make the controversy over the identity of the artist any less real or important to those who cared about the issue. The challenged statements furthered Appellants’ position on the controversy by articulating a consistent and unqualified belief in the identity of the artist. Appellants’ challenged statements were  therefore sufficiently connected to an issue of public interest to warrant anti-SLAPP protection.” (Serova v. Sony Music Entertainment (Cal. App. 2nd Dist., Div. 2, Jan. 8, 2020) 44 Cal.App.5th 103.)

Motion for Relief Under Mandatory Provision of Section 473.

Defendant and two claimants to interpleaded money received notice of the trial date but failed to appear. The court conducted a trial, adjudicated the case on the merits, and entered judgment. The claimants subsequently moved for relief under Code of Civil Procedure § 473, subdivision (b), but the trial court denied the motion. Affirming, the Court of Appeal explained that the mandatory provision of section 473 “applies only to defaults, default judgments, and dismissals. The trial court denied this motion because the trial on the merits had not been a default, a default judgment, or a dismissal. Rather, it had been a trial on the merits.” (Shayan v. Spine Care and Orthopedic Physicians (Cal. App. 2nd Dist., Div. 8, Jan. 9, 2020) 44 Cal.App.5th 167.)

Going and Coming Rule.

A city employee was driving to work in his own car when he struck and killed a pedestrian. The employee was taking his usual route, was not on a job-related errand, and his job did not require him to be out in the field or to use his personal car. After the decedent’s brothers filed suit, the city moved for summary judgment based on the “going and coming rule.” The trial court granted the motion. On appeal, plaintiffs argued there was a triable factual issue as to whether the “work-spawned risk” exception to the “going and coming rule” applied:  According to plaintiffs, the city was aware that the employee was taking medications for a back condition, and despite such knowledge, the city allowed the employee to return to work without restrictions. Affirming, the Court of Appeal stated: “The ‘going and coming rule’ was created for precisely the situation presented here and its application in this case precludes plaintiffs’ claim of vicarious liability against the City.” (Bingener v. City of Los Angeles (Cal. App. 2nd Dist., Div. 3, Jan. 9, 2020) 44 Cal.App.5th 134.)

Competitor Standing Doctrine.

Under federal law, public and private entities may apply for grants to combat teen pregnancy. Planned Parenthood brought suit against the federal government, contending the funding opportunities offered by the U.S. Department of Health & Human Services violated the law insofar as those opportunities either favored or were limited to abstinence-only programs. The district court dismissed the case, concluding that Planned Parenthood lacked standing because it did not adequately plead injury-in-fact or redressability. The Ninth Circuit reversed and remanded, finding that Planned Parenthood had standing under the competitor standing doctrine, which holds that the inability to compete on an equal footing in a bidding process is sufficient to establish injury-in-fact. The court also observed that even though the exact funding requirements change frequently, this issue is capable of being repeated.  (Planned Parenthood v. U.S. Department of Health & Human Services (9th Cir., Jan. 10, 2020) 946 F.3d 1100.)

Charter Cities and Immigration Policies.

The California Values Act (Gov. Code, § 7284 et seq.; CVA) restricts the ability of local law enforcement agencies to inquire into immigration status, place individuals on an immigration hold, and use personnel or resources to participate in certain immigration enforcement activities. The issue presented in this case is whether charter cities are exempt from compliance with one part of the CVA on the ground it infringes the authority of charter cities under the California Constitution to create, regulate, and govern city police forces. The trial court granted a petition for writ of mandamus brought by a charter city and ordered the California Attorney General to refrain from enforcing the CVA against the city. Reversing with directions, the Court of Appeal concluded that the statute “is constitutional as applied to charter cities because it addresses matters of statewide concern—including public safety and health, effective policing, and protection of constitutional rights—is reasonably related to resolution of those statewide concerns, and is narrowly tailored to avoid unnecessary interference in local government.” (City of Huntington Beach v. Becerra (Cal. App. 4th Dist., Div. 3, Jan. 10, 2020) 2020 WL 113677.)

Private Attorney General Fees.

Code of Civil Procedure § 1021.5 authorizes an award of attorney fees if a party is successful in an action that resulted in the enforcement of an important right affecting the public interest. In this case, another state reported that plaintiff had been convicted of driving under the influence in 2005, and California automatically suspended his driver’s license. In 2015, after lengthy proceedings, plaintiff’s driving record was purged of the 2005 out-of-state conviction. But the following year, when plaintiff renewed his driver’s license, a computer error caused another two-year suspension of his license. Plaintiff filed a petition for writ of mandate, asking the trial court to order the Department of Motor Vehicles to repair its computer system in order to prevent another mistaken suspension of his driver’s license. The trial court granted the writ petition but denied plaintiff’s request for $241,459.72 in private attorney general attorney fees, stating: “the court cannot conclude that the number of California drivers with non-qualifying out-of-state convictions that will benefit from the court’s writ is meaningful and sufficiently large to justify fees under section 1021.5.” Affirming the denial of an attorney fee award, the Court of Appeal held that plaintiff neither misconstrued nor misapplied the requirement of conferring a significant benefit on a large class of persons. (Villarreal v. Gordon (Cal. App. 2nd Dist., Div. 1, Jan. 10, 2020) 2019 WL 7560732.)

Discovery Order in Federal Class Action Reversed.

A district court ordered a large retailer to produce a list of California customers who had purchased certain bedding products to enable opposing counsel to find a lead plaintiff to pursue a class action against the retailer. The Ninth Circuit granted the retailer’s petition for a writ of mandate, concluding that “using discovery to find a client to be the named plaintiff before a class action is certified is not within the scope of Rule 26(b)(1).” (In re Williams-Sonoma, Inc. (9th Cir., Jan. 13, 2020) 947 F.3d 535.)

Sister State Judgment.

A $3.825 million judgment was entered in Kansas. The judgment creditor obtained a judgment in California based on the sister state judgment. The judgment debtor moved to vacate entry of the judgment in California. The trial court denied the motion and ordered the judgment debtor to post a $5,737,500 undertaking to stay enforcement of the judgment pending appeal of the denial of the motion to vacate in California and an appeal from the judgment in Kansas. The judgment debtor did not post the undertaking. While the California appeal was pending, an appellate court in Kansas affirmed the judgment. In the California appeal, the judgment debtor contended the Kansas judgment should not be recognized because California employs a different standard for fraud and requires a malicious act. Affirming the denial of the motion to vacate, the Court of Appeal explained that a state may not disregard the judgment of a sister state because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits. The court also concluded that the order requiring the undertaking did not amount to an abuse of discretion. (Blizzard Energy, Inc. v. Schaefers (Cal. App. 2nd Dist., Div. 6, Jan. 13, 2020) 2020 WL 132125.)

Is the Ruling on a Motion for Relief From a Bankruptcy Stay an Appealable Order?

The U.S. Supreme Court considered the question: “Does a creditor’s motion for relief from the automatic stay initiate a distinct proceeding terminating in a final, appealable order when the bankruptcy court rules dispositively on the motion?” The court answered in the affirmative: “the adjudication of a motion for relief from the automatic stay forms a discrete procedural unit within the embracive bankruptcy case. That unit yields a final, appealable order when the bankruptcy court unreservedly grants or denies relief.” (Ritzen Group, Inc. v. Jackson Masonry, LLC (U.S., Jan. 14, 2020) 2020 WL 201023)

ERISA Fiduciary’s Duty of Prudence.

In an action under the Employee Retirement Income Security Act of 1974 for “breach of the duty of prudence,” courts are required to consider whether a plaintiff has plausibly described an alternative action that the defendant “could have taken . . . that a prudent fiduciary . . . would not have viewed as more likely to harm the fund than to help it.” Notwithstanding this rule, the parties focused their appellate briefing on other issues. Because the circuit court did not address those other issues, the U.S. Supreme Court remanded the matter for the circuit court to consider those issues in the first instance. (Retirement Plans Committee of IBM v. Jander (U.S., Jan. 14, 2020) 2020 WL 201024)

Summary Judgment Granted in Constructive Discharge Action.

Plaintiff worked as a nurse practitioner at a rural clinic. During the three years she worked there, she submitted over 50 complaints about working conditions.  She herself was also the subject of several investigations based on anonymous complaints. The investigations all concluded that the complaints against plaintiff were unsubstantiated, so no action was taken against her. However, she eventually resigned and sued for constructive termination and retaliation. The trial court granted summary judgment for both defendants: the medical center that owned the clinic and a company that provided “revenue cycle services” to the medical center. Affirming, the Court of Appeal found the plaintiff failed to show the “revenue cycle services” company was engaged in a joint venture with the medical center as her employer. As to the medical center, the plaintiff failed to show she suffered any adverse employment action. (St. Myers v. Dignity Health (Cal. App. 3d Dist., Dec. 12, 2019) 44 Cal.App.5th 301.)

Sanctions Under Family Code § 271.

The parties to a marital dissolution proceeding disputed ownership of real property in Brazil. Title was placed in wife’s name because, as a foreigner, it was difficult for husband to purchase property in Brazil. However, husband’s separate funds were used to purchase the property. In 2015, the trial court ordered wife to transfer title to husband. When the transfer still had not been completed two years later, the court issued contempt sanctions of $10,000. Husband subsequently sought to obtain title in Brazilian courts, but he learned that the wife had transferred the property to her Brazilian attorney. Husband then spent a substantial amount of money attempting to obtain the property in Brazilian courts. The trial court therefore ordered wife to pay an additional $200,000 in sanctions to husband pursuant to Family Code § 271. Wife appealed, contending the sanctions included anticipated attorney fees and the amount was not supported by substantial evidence. Affirming in part, the Court of Appeal “conclude[d] the superior court did not abuse its discretion by awarding the sanctions, including the anticipated fees and costs.” However, it “remand[ed] . . . to ensure that the bases for the $200,000 award include only expenses tethered to attorney fees and costs.” (Menezes v. McDaniel (Cal. App. 4th Dist., Div. 1, Dec. 18, 2019) 44 Cal.App.5th 340.)

Representative Democracy.

Plaintiffs claimed that the United States government had violated their constitutional right to a “climate system capable of sustaining human life.” The central issue was whether, even assuming such a broad constitutional right exists, an Article III federal court can provide plaintiffs the redress they seek: an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” The district court found that such relief might be available. Reversing, the Ninth Circuit stated: “Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to political branches of government.” (Juliana v. United States (9th Cir., Jan. 17, 2020) 2020 WL 254149.)

Press Access to Court Documents.

This case pitted the urgency of reporting on contemporaneous news about court filings against the administrative interest in fair and orderly processing of those filings. Prior to 2014, Ventura County had a supervisor review policy that often resulted in multi-day delays between the filing of a new civil complaint and the complaint’s availability to the media. The county later adopted a “scanning policy,” which reduced the delays but still required court staff to scan new civil complaints before making them available to the media. After scanning, the complaints were available solely on public computer terminals in the Ventura County clerk’s office. The district court concluded that both policies unconstitutionally infringed the right to timely access the complaints. Reversing in part, the Ninth Circuit agreed that the pre-2014 supervisor review policy violated the constitution. However, it found that the current “scanning policy” was permissible: “the press has a qualified right of timely access to newly filed civil nonconfidential complaints that attaches when the complaint is filed. However, this right does not entitle the press to immediate access . . . . Some reasonable restrictions . . . that result in incidental delays in access are constitutionally permitted.” (Courthouse News Service v. Planet (9th Cir., Jan. 17, 2020) 947 F.3d 581.)

License Not Binding on a Subsequent Purchaser Who Had No Notice of It.

In 1950, the first property owner granted eight parking places to the second property owner, who owned a neighboring lot. The Los Angeles Department of Building and Safety (LADBS) issued a certificate of occupancy to the second property owner, which required parking places. But, while the second property owner filed the parking affidavit with the LADBS, LADBS did not record the affidavit. The trial court found the parking affidavit is an irrevocable license. Reversing, the Court of Appeal held that an irrevocable license is not binding on a subsequent purchaser who takes without notice. (Gamerberg v. 3000 E. 11th St., LLC (Cal. App. 2nd Dist., Div. 7, Jan. 21, 2020) 2020 WL 289092.)

No Stipulating When Someone Else’s Statute of Limitations Begins to Run.

A homeowners’ association, filed a construction defect case against the general contractor. The contractor filed a motion for summary judgment under the ten-year statute of limitations in Civil Code § 941, which provides no action may be brought more than ten years after substantial completion of the project. The contractor argued “substantial completion” under the statute has the same meaning as “substantial completion” in its construction contract with the developer, which provided that “substantial completion” occurred on a certain date. The trial court denied the motion, finding the “substantial completion” date in the contract did not control.  Denying the contractor’s petition for writ of mandate, the Court of Appeal stated: “We conclude the trial court did not err by denying [the contractor’s] motion for summary judgment.  [The contractor] offers no authority for the novel proposition that certain parties may, by contract, conclusively establish the date when a limitations period begins to run on another party’s cause of action.” (Hensel Phelps Construction Co. v. Superior Court (Cal. App. 4th Dist., Div. 1, Jan. 22, 2020) 2020 WL 370445.)

No Dangerous Condition of Public Property.

A train struck and killed plaintiff’s 19-year-old son. Plaintiff contended a dangerous condition of public property existed because the city failed to erect barriers to prevent pedestrians from accessing railroad tracks from the city’s adjacent property. The trial court granted the city’s motion for summary judgment. Affirming, the Court of Appeal concluded that, as a matter of law, there was no dangerous condition of public property. (Hedayatzadeh v. City of Del Mar, (Cal. App. 4th Dist., Div. 1, Jan. 22, 2020) 2020 WL 370443.)

Barney Fife.

An orthopedic surgeon was held in civil contempt after he refused to produce his patient’s medical records in a collection action involving a commercial note. When the sheriff’s department booked him into custody, they incorrectly entered his civil violation in their electronic database as a felony charge, and then reported that inaccurate charge to the California Department of Justice creating a false criminal record. The surgeon sued the county for defamation, defamation per se, writ of mandate, declaratory relief, and violation of his federal civil rights pursuant to 42 U.S.C. § 1983. Among other things, he alleged he lost a lucrative hospital contract he had maintained for the previous 12 years as a result of the error. The trial court dismissed the action, citing different reasons for each cause of action. Two of the causes of action were dismissed for failure to present a timely governmental claim. The County argued the surgeon misrepresented the accrual date on his claim. Reversing on all five causes of action for various reasons, the Court of Appeal stated regarding the surgeon’s governmental claim: “[H]e accurately answered the only timing question the County’s claim form asked, which was when his ‘damage or injury’ occurred. But the date of injury is not the relevant timing question under the Government Claims Act, the date of claim accrual is.” (Roger v. County of Riverside (Cal. App. 4th Dist., Div. 2, Jan. 22, 2020) 2020 WL 360605.)

Insufficient Evidence to Defeat MSJ in Talc Case.

Plaintiffs alleged defendant’s cosmetic and baby powders contained asbestos and caused their cancers. Defendant moved for summary judgment, supporting the motion with an expert’s declaration that concluded no causation “to a reasonable degree of scientific certainty.” Plaintiffs did not present expert testimony to counter defendant’s expert’s opinion. Nor did plaintiffs offer verified admissions or interrogatory answers. Instead, plaintiffs relied on their attorney’s declaration that attached defendant’s documents and deposition testimony of one of the plaintiffs and of one of defendant’s employees who maintained the manufacturer never found asbestos in any of its talc products. The trial court granted summary judgment for defendant. Affirming, the Court of Appeal noted that defendant’s expert declaration shifted the burden of producing evidence to plaintiff, who did not demonstrate the existence of a triable issue of fact. (LAOSD Asbestos Cases (Cal. App. 2nd Dist., Div. 4, Jan. 22, 2020) 2020 WL 359158.)

Nonbeneficiary of Trust May Challenge a Trust.

Shortly before dying, a settlor disinherited a beneficiary, who was not named in the trust’s final iteration. The Court of Appeal interpreted Probate Code § 17200, subdivision (a), which provides that “a trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust or to determine the existence of the trust,” as permitting only a currently-named beneficiary to make such a petition. The California Supreme Court reversed, stating: “We disagree with the Court of Appeal, and hold today that the Probate Code grants standing in probate court to individuals who claim that trust amendments eliminating their beneficiary status arose from incompetence, undue influence, or fraud.” (Barefoot v. Jennings (Cal., Jan. 23, 2020) 2020 WL 372523.)

Attorney Did Not Inform Client He Had No Professional Liability Insurance.

The attorneys who represented plaintiffs in a class action moved the trial court for approval of a settlement. They also moved for an award of attorney fees and a division of the award among co-counsel. The division of fees between two of the attorneys was disputed, one seeking compensation in accordance with an alleged written agreement for the division of the fees and the other contending the purported agreement was unenforceable. The trial court made an award of attorney fees and divided the fees in accordance with the alleged fee division agreement. Appellant challenged the enforceability of that agreement and the division of the attorney fee award between himself and respondent. Rules of Professional Conduct, former rule 3-410 required an attorney to disclose the lack of professional liability insurance to the client at the time the client retained the attorney.  The Court of Appeal concluded the agreement was unenforceable because of failure to comply with former rule 3-410 and reversed the fee award with directions to redetermine the division of fees. (Hance v. Super Store Industries (Cal. App. 5th Dist., Jan. 23, 2020) 2020 WL 373070.)

The Right to Vote.

In 2016, the Democratic National Committee (DNC) and others sued Arizona, challenging its voting policies on constitutional grounds and alleging violations of the Voting Rights Act of 1965 (VRA). The DNC challenged Arizona’s policy of wholly discarding, rather than counting or partially counting, ballots cast out-of-precinct (OOP) and alleged that Arizona’s House Bill 2023, which criminalizes the collection and delivery of another person’s ballot, violated Section 2 of the VRA. DNC argued that the OOP policy and H.B. 2023 caused a disparate adverse impact on American Indians, Hispanics, and African Americans, that H.B. 2023 was enacted with discriminatory intent, and that the OOP policy and H.B. 2023 unduly burdened minorities’ voting rights.  The district court found in favor of Arizona after a bench trial.  The Ninth Circuit reversed, stating: “We hold that Arizona’s OOP policy violates the results test of Section 2. We hold that H.B. 2023 violates both the results test and the intent test of Section 2. We hold that H.B. 2023 also violates the Fifteenth Amendment. We do not reach Plaintiffs’ other constitutional challenges. We reverse the judgment of the district court and remand for further proceedings consistent with this opinion.” (Democratic Nat’l Comm. v. Hobbs (9th Cir., Jan. 27, 2020) 2020 WL 414448.)

No Dangerous Condition of Public Property.

A 14-year-old pedestrian was seriously injured in a crosswalk after being hit by a nonspeeding car, the driver of which said the sun was in his eyes. The child’s guardian ad litem sued the city, alleging a dangerous condition of public property. The trial court granted the city’s motion for summary judgment. Affirming, the Court of Appeal stated: “In light of the undisputed evidence, including the lack of any similar collisions over the 10 years preceding the accident during which tens of millions of vehicles passed through this intersection, we agree with the trial court that the tragic accident and injury plaintiff suffered was caused entirely by the negligence of a driver and not by any dangerous condition of public property.”(Thimon v. City of Newark (Cal. App. 1st Dist., Div. 2, Jan. 27, 2020) 2020 WL 416112.)

Previously we reported:
Hospital’s Demurrer to Elder Abuse Claim Should Not Have Been Sustained

An elderly man with dementia was confused and had taken to wandering, so his family admitted him to defendant psychiatric hospital to protect him from injury. Minutes after entering the hospital, the man was left unattended and fell. He broke his hip, which was not discovered until four days later and never recovered from the surgery, passing away a few months later. The man’s family brought an action for elder abuse, alleging reckless understaffing, concealment of the man’s fall from his family, knowing that the fall was an adverse event that would affect its Medicare funding, and that the hospital gave the family conflicting stories about how the fall occurred. The trial court sustained the hospital’s demurer. Finding the operative complaint alleged “at least one viable theory of elder abuse based on recklessness,” the Court of Appeal reversed. (Fenimore v. Regents of Univ. of California (Cal. App. 2nd Dist., Div. 8, Mar. 28, 2016) 245 Cal.App.4th 1339.)

The latest:

After remand, plaintiffs moved for leave to file a second amended complaint that would add new allegations about pressure sores. The trial court denied this motion, holding that the statute of limitations barred the amendment. Thereafter, defendants moved for summary judgment, which the trial court granted. Plaintiffs appealed both the denial of the motion for leave to amend and the grant of summary judgment. The Court of Appeal reversed again, holding that the trial court erred in denying the motion to amend the complaint because the two-year statute of limitations was tolled during the earlier appeal. (Fenimore v. Regents of the Univ. of California (Cal. App. 2nd Dist., Div. 8, Jan. 27, 2020) 2020 WL 416111.)

Grant of Summary Judgment in FEHA Sexual Orientation Discrimination Case Reversed.

Plaintiff, a gay man, began his employment at the California Highway Patrol in 1996. During his nearly 20-year career, other officers subjected him to derogatory, homophobic comments; singled him out for pranks; repeatedly defaced his mailbox; and refused to provide him with backup assistance during enforcement stops in the field. He was left to handle high-risk situations that generally should be handled by at least two officers, such as high-speed vehicle pursuits, impounding vehicles, and hit-and-run accidents, on his own. He complained about his treatment to his supervisors. He was transferred to different CHP offices. In 2013, he won the Officer of the Year Award, but in a break with tradition, the CHP did not display his photograph. In 2016, he filed an administrative complaint with the Department of Fair Employment and Housing alleging discrimination based on sexual orientation. The CHP moved for summary judgment, contending plaintiff’s claims were untimely. Plaintiff relied on the doctrine of equitable tolling, which allows the suspension or extension of a limitations period under certain circumstances. The trial court granted the CHP’s motion and dismissed the Plaintiff’s claims. The Court of Appeal reversed, stating: “We hold that the record does not preclude, as a matter of law, a conclusion that his claims were timely and that he was constructively discharged.” (Brome v. California Highway Patrol (Cal. App. 1st Dist., Div. 5, Jan. 28, 2020) 2020 WL 429035.)

Sexual Assaults on Campus.

Three plaintiffs were sexually assaulted while undergraduates at the University of California, Berkeley. They sued UC under Title IX of the Education Amendments of 1972, asserting two theories of liability. First, they alleged that UC violated Title IX by failing to adequately respond to their individual assaults. Second, they alleged that UC violated Title IX by deliberate indifference to reports of sexual misconduct, which heightened the risk that plaintiffs would ultimately be assaulted. This latter theory is known as the “pre-assault claim” because it relies on events that occurred before plaintiffs’ assaults. The district court dismissed all of plaintiffs’ claims. The Ninth Circuit affirmed the dismissal of the individual claims. However, the appeals court vacated the dismissal of the pre-assault claim and remanded for further proceedings, stating that, although the court had “never directly addressed pre-assault Title IX claims,” “such a claim is a cognizable theory of Title IX liability.” (Karasek v. Regents of the Univ. of California (9th Cir., Jan. 30, 2020) 2020 WL 486786.)

Appealing From a Sanctions Order Against the Attorney.

The Court of Appeal dismissed an appeal from an order awarding sanctions against an attorney, concluding that the attorney’s client lacked standing to challenge the sanctions order and that the notice of appeal could not be liberally construed to include the omitted attorney. The California Supreme Court framed the issue: “Does a Court of Appeal have jurisdiction to review an order directing an attorney to pay sanctions when the notice of appeal identifies the attorney’s client as the appealing party, but other indicia make clear that the attorney was the party seeking review?” The Supreme Court reversed the Court of Appeal, stating: “We . . . hold that, when it is clear from the record that the omitted attorney intended to participate in the appeal and the respondent was not misled or prejudiced by the omission, the rule of liberal construction compels that the notice be construed to include the omitted attorney.” (K.J. v. Los Angeles Unified School District (Cal., Jan. 30, 2020) 2020 WL 524917.)

Insurer’s Right to Appeal Default Judgment Against Insured.

Plaintiff sued defendant in small claims court after an auto accident. Defendant failed to appear, and the court entered a default judgment against him for $10,000 plus costs. Defendant’s insurance company filed a timely notice of appeal. The trial court struck the notice of appeal. The insurance company filed a petition for writ of mandate in the Court of Appeal. Granting the petition, the appeals court stated: “We conclude the insured’s failure to appear in small claims court does not annul the appeal right conferred upon the insurer by Code of Civil Procedure section 116.710, subdivision (c).” The Court of Appeal directed the trial court to vacate its order striking the notice of appeal and reinstate its appeal from the small claims judgment. (Pacific Pioneer Insurance Company v. Superior Court (Cal., Jan. 30, 2020) 2020 WL 486504.)

Public Records of Use of Force by Police.

The Legislature recently amended Penal Code § 832.7 to recognize the right of the public to know about incidents involving shootings by police officers or the use of force by an officer that results in death or great bodily injuries, as well as sustained findings of sexual assault or dishonesty by an officer. The California Attorney General and the California Department of Justice filed a petition for writ of mandate challenging the trial court’s order to disclose under the statute. Denying relief, the Court of Appeal stated: “We conclude, as a matter of statutory interpretation, that section 832.7 generally requires disclosure of all responsive records in the possession of the Department, regardless whether the records pertain to officers employed by the Department or by another public agency and regardless whether the Department or another public agency created the records.” (Becerra v. Superior Court (Cal. App. 1st Dist., Div. 3, Jan. 30, 2020) 2020 WL 486863.)

Jailed Ward to Proceed Against Corrections Officer and Supervisor for Violation of Her Civil Rights.

Plaintiff was arrested on an outstanding warrant and taken to juvenile hall. She alleged that while she was in custody at the hall, a juvenile corrections officer made sexual comments to her, groomed her for sexual abuse, and looked at her inappropriately while she was showering. Plaintiff filed this action against the officer, his supervisor, and the county. She brought claims under 42 U.S.C. § 1983, alleging that her constitutional rights were violated. The district court granted motions for summary judgment in favor of the individuals. Reversing the summary judgment in favor of the officer, the Ninth Circuit stated: “We hold that, viewing the facts in the light most favorable to [plaintiff] and drawing all reasonable inferences in her favor, she has presented sufficient facts to establish a violation of her right to bodily privacy, right to bodily integrity, and right to be free from punishment as guaranteed by the Fourteenth Amendment.” Reversing the summary judgment in favor of the supervisor, the appeals court stated: “From this evidence a jury could find that [the supervisor] knew or reasonably should have known of [the individual correction officer’s] violations and failed to act to prevent them.” (Vazquez v. County of Kern (9th Cir., Jan. 31, 2020) 2020 WL 501710.)

Intended Beneficiary of Insurance Policy Containing Arbitration Clause Is Compelled to Arbitrate.

A private group held an event at a convention center. During the event, an attendee was injured in the parking lot. The injured man sued the manager of the convention center and parking lot, the defendant in this action. The plaintiff is the insurance company that issued a policy to the private group that held the event. That insurance policy contained an arbitration clause. The manager tendered its defense to plaintiff. Plaintiff petitioned the trial court to compel arbitration of its dispute with defendant. The trial court denied the petition, concluding the insurance company failed to show a valid binding arbitration agreement between the insurance company and defendant. Reversing, the Court of Appeal noted the private group’s license required that it obtain insurance and that the policy name the property manager as an additional insured, and concluded the manager of the property was an intended beneficiary of the policy. (Philadelphia Indemnity Insurance Company v. Smg Holdings, Inc. (Cal. App. 3rd Dist., Jan. 31, 2020) 2019 WL 7790891.)

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