Litigation Update: February 2022

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

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Julia C. Shear Kushner
  • Editors, Dean Bochner, Jonathan Grossman, Jennifer Hansen, Judith Sklar, David Williams, Greg Wolff, Ryan Wu
Fraud in the Execution Is Different from Promissory Fraud. 

Defendants sold a hotel and restaurant to plaintiffs, who agreed to lease the property back to defendants. However, plaintiffs subsequently sued for fraud, claiming that defendants had surreptitiously substituted an unapproved version of the sale-and-leaseback agreement for their signature, with terms that were materially different from the terms actually agreed upon. The trial court sustained defendants’ demurrer because plaintiffs’ pleading alleged insufficient facts showing defendants made promises upon which they relied. Reversing, the Court of Appeal reasoned that fraud in the execution is distinct from promissory fraud: “As we explain, these allegations state, quite literally, a textbook cause of action for fraud in the execution, as this illustration from the Restatement Second of Contracts demonstrates:  

‘A and B reach an understanding that they will execute a written contract containing terms on which they have agreed. It is properly prepared and is read by B, but A substitutes a writing containing essential terms that are different from those agreed upon and thereby induces B to sign it in the belief that it is the one he has read. B’s apparent manifestation of assent is not effective. (Rest.2d, Contracts (1981) § 163, illus. 2.).’ ” (Munoz v. PL Hotel Group, LLC (Cal. App. 4th Dist., Div. 1, Jan. 3, 2022) 73 Cal.App.5th 543.)

The Trial Court Properly Fashioned an Equitable Remedy Short of an Injunction for Permanent Trespass to Plaintiffs’ Land.

Defendant bought 677 acres of land in 2012, for the purpose of developing a walnut orchard. Plaintiffs own a 210-acre property adjacent to defendant’s property. Plaintiffs sued in 2014, alleging that defendant, who had proceeded to develop and irrigate a walnut orchard, was trespassing on 3.44 acres of plaintiffs’ property. Plaintiffs further alleged that defendant had excavated a hillside, leveled land, planted walnut trees, and laid irrigation and sprinkler systems on the disputed strip. Plaintiffs sought injunctive relief to end the encroachment and restore the hillside strip to its original condition, among other remedies. After a bench trial, the trial court found defendant was trespassing by encroachment on plaintiffs’ property. However, applying the defense of laches and the “relative hardship” doctrine, the court denied the injunctive relief sought by plaintiffs. The court fashioned an alternative equitable remedy: Defendant had to pay damages to plaintiffs and undertake corrective action to limit erosion of the now-excavated hillside, while plaintiffs were required to deed the strip of land at issue to defendant. In a parallel analysis, the trial court found the trespass by defendant was permanent such that the appropriate measure of damages was “diminution in value” damages, rather than other alternative measures. Affirming, the Court of Appeal held that the trial court did not abuse its discretion in denying the claim for injunctive relief regarding the trespass and that the trial court properly fashioned an equitable remedy. (Johnson v. Little Rock Ranch, LLC (Cal. App. 5th Dist., Jan. 3, 2022) 73 Cal.App.5th 576.)

Previously we reported:
Suing for Damages Resulting from Terrorism.

Three appeals arose from three separate acts of terrorism—one in Paris, one in Istanbul, and one in San Bernardino. Plaintiffs sought damages pursuant to the Anti-Terrorism Act (18 U.S.C., § 2333; ATA). The ATA allows U.S. nationals to recover damages for injuries suffered by reason of an act of international terrorism. Plaintiffs sought damages from social media platforms, alleging that Google, Twitter and Facebook were liable by permitting terrorists to post videos and other content and to communicate with each other and radicalize recruits. Plaintiffs also claimed that Google placed paid advertisements in proximity to ISIS-created content and shared the resulting ad revenue with ISIS. The district court dismissed all three actions. With regard to the Paris and San Bernardino attacks, the Ninth Circuit Court of Appeals affirmed the dismissal of the cases, agreeing with the lower court that plaintiffs failed to state a claim, mainly because the Communications Decency Act (47 U.S.C. § 230) immunizes those who publish content created by third parties. As to the Istanbul attack, the Ninth Circuit reversed, finding the lower court erred by ruling that plaintiffs failed to state a claim for aiding-and-abetting liability under the ATA. (Gonzalez v. Google LLC (9th Cir., June 22, 2021) 2 F.4th 871.)

The latest:

A vote for rehearing en banc was taken of the Ninth Circuit judges and failed to receive a majority of the nonrecused active judges in favor of en banc consideration. (Gonzalez v. Google LLC (9th Cir., Jan. 3, 2022) 21 F.4th 665.)

Two Police Officers Failed Assisting Another Officer Responding to a Robbery, and Lied to a Supervisor About Their Actions. 

After two Los Angeles Police Department officers were fired, they filed a petition for writ of administrative mandate with the trial court following their loss in the administrative challenge to their termination. They contended a board of rights erred when it relied in part on a digital in-car video system (DICVS) recording that captured them abdicating their duty to assist a commanding officer’s response to a robbery in progress and instead playing Pokémon Go while on duty. The trial court denied their petition. On appeal, the officers argued that the Department had told them the DICVS system was being “deployed in order to provide Department employees with a tool for crime documentation and prosecution, and not to monitor private conversations between Department employees.” Affirming the denial of mandamus, the Court of Appeal noted additional language accompanying the DICVS deployment providing: “if ‘a sensitive personal communication between employees is recorded, the personal communication will not be used to initiate a personnel complaint investigation or used against an employee in the adjudication of a personnel complaint, or during any subsequent hearings, unless there is evidence of criminal or egregious misconduct.’ ” (Italics added.) (Lozano v. City of Los Angeles (Cal. App. 2nd Dist., Div. 3, Jan. 7, 2022) 73 Cal.App.5th 711.)

51st Way to Leave Your Lover. 

In 2017, a man came to the United States on a fiancé visa. His fiancée then found a message on his phone that said in part, “[l]et me just get ahold of the marriage certificate, as soon as I become legal, I can divorce her and she can go F herself.” Needless to say, there was no marriage. She contacted immigration authorities and asked them to deport him. He physically attacked her several times. He later pled no contest to making criminal threats and was sentenced to five years of probation with 364 days in local custody. Before he was sentenced, he signed a form that stated in part: “Immigration Consequences—I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty.” After he signed that form, the court personally asked him if he understood the immigration consequences, and he said he did. The court also asked his lawyer if the lawyer had explained the immigration consequences to him. The lawyer had. The court accepted the plea. Thereafter, deportation proceedings were initiated by the federal government, so the man came back to state court and asked to withdraw his no contest plea because he didn’t really believe he would be deported. The trial court denied his motion. Affirming, the Court of Appeal stated: “At its core, this case comes down to answering the question: Can a defendant be told repeatedly that his plea will result in deportation, confirm he understood, present no contrary evidence from the attorney who advised him, and then withdraw the plea with the claim that he did not understand he would be deported? Our answer under the facts of this case is ‘no.’ The trial court properly denied appellant’s motion to vacate his conviction.” (People v. Abdelsalam (Cal. App. 2nd Dist., Div. 8, Jan. 6, 2022) 73 Cal.App.5th 654.)

Trial Court Dismissed Case Under Doctrine of Primary Assumption of Risk. Court of Appeal Reversed, Finding There Are Triable Issues of Fact. 

During a baseball game at a private college, a foul ball struck plaintiff struck in the face. Plaintiff was seated seated in a grassy area along the third-base line, behind the dugout, which extended eight feet above the ground, and there was no protective netting above the dugout. The ball fractured her skull and she suffered a brain injury. She sued the college. The trial court granted summary judgment for the college under the doctrine of primary assumption of risk and the baseball rule, as set forth by the California Supreme Court in Quinn v. Recreation Park Association. (1935) 3 Cal.2d 725. The appeals court engaged in lengthy analysis, noting that the primary assumption of risk doctrine is a rule of limited duty that holds owners and operators of sports venues responsible for (1) not increasing the risks of injury inherent in the activity; and (2) taking reasonable steps to increase safety and minimize the inherent risks of injury, if such steps can be taken without altering the nature of the activity. Quinn and the baseball rule holds that spectators assume the risk of injury from foul balls if they choose to sit in unscreened seats, even if no screened seats are available. However, the Court of Appeal found that Quinn and the baseball rule are out of step with California’s modern primary assumption of risk doctrine. That is, the baseball rule does not account for the duties of owners and operators of sports venues to take reasonable steps to minimize the inherent risks of injury to their customers or spectators, if such steps can be taken without changing the nature of the sport or the activity. Reversing, the Court of Appeal concluded: “. . . La Sierra did not meet its initial burden of showing it was entitled to summary judgment based on its affirmative defense of primary assumption of risk . . . All of the evidence adduced on the motion showed there are triable issues of fact concerning whether La Sierra had a duty of care, or breached its duty of care, in failing to (1) install protective netting over and beyond its dugouts; (2) warn spectators that there was no protective netting over its dugouts; (3) provide a greater number of screened seats at its April 22, 2018 game, or at its playoff games, and (4) exercise crowd control, in order to remove distractions and reduce the risk that spectators who sat in the unscreened areas along the first- and third-base lines would be hit by balls leaving the field of play. Reasonable jurors could reach differing conclusions on these duty and breach-of-duty questions.” (Mayes v. La Sierra University (Cal. App. 4th Dist., Div. 2, Jan. 7, 2022) 73 Cal.App.5th 686.)

Reimbursement to Medi-Cal Required to Be Paid by Trust After Trustor Dies and Before Distribution to Beneficiary. 

The Medi-Cal program (Welf. & Inst. Code, § 14000 et seq.) is California’s enactment of the federal Medicaid program (42 U.S.C. § 1396 et seq.). The Medicaid program was designed to provide health care services to qualified indigent persons, and the California Department of Health Care Services administers the Medi-Cal program. For a person older than 55 years of age, financial eligibility for Medi-Cal benefits is calculated without including the value of his or her principal residence. However, after the person’s death, federal law requires the department to seek reimbursement for any Medi-Cal benefits provided during the decedent’s lifetime from his or her estate or from recipients of the decedent’s property by distribution or survival. (Welf. & Inst. Code, § 14009.5, subd. (a).)” Here, the department sought reimbursement from a revocable living trust for the Medi-Cal benefits provided on behalf of a man during his lifetime. Following his death, the probate court ordered the assets in the man’s revocable living trust to be distributed to his sole beneficiary, rather than to the department. Reversing, the Court of Appeal stated: “We conclude federal and state law governing revocable inter vivos trusts, as well as public policy, require that the department be reimbursed from the trust before any distribution to its beneficiary.” (Riverside County Public Guardian v. Snukst (Cal. App. 4th Dist., Div. 2, Jan. 10, 2022) 73 Cal.App.5th 753.)

Branded Title.

Some levels of insurance claims result in the title of a car being changed (or “branded”) to represent the insurance incident, which can reduce the car’s resale value. Stealing a car can brand its title. Defendant, who stole an Audi, was ordered to pay restitution to the Audi’s owner in this criminal case. At the restitution hearing, defendant assented to a sum to repair the Audi, but the owner also submitted an email from a car dealer explaining that, because of the Audi’s branded title, it now was worth $15,000 instead of $18,000 to $20,000. The trial court ordered the defendant to pay the car owner the amount the car was reduced in value due to the branded title. Affirming, the Court of Appeal stated: “The Audi owner’s loss is just as concrete as that of homeowners who discover a fault line beneath their home. This discovery diminishes their property’s market value. The homeowners might grow old and die in the home and never sell it. Yet the discovery decreased their net worth in an objectively quantifiable way. The loss, for instance, has lessened the homeowners’ ability to borrow against the asset.” (People v. Newsom (Cal. App. 2nd Dist., Div. 8, Jan. 10, 2022) 73 Cal.App.5th 749.)

Sexual Abuse Findings by a University, Its Immigration Consequences, and the Lawsuit that Followed.

Based on a former student’s allegations of misconduct, and before beginning a formal Title IX investigation, the University of California, Los Angeles issued an immediate interim suspension of John Doe, a Chinese national graduate student who was just months away from completing his Ph.D. More than five months later, the University suspended Doe for two years after finding he violated the University’s dating violence policy by, among other things, placing Jane Roe “in fear of bodily injury,” just one of the thirteen charges the University brought against him. As a result, Doe lost his housing, his on-campus job as a teaching assistant, his ability to complete his Ph.D., and his student visa. Doe sued the university through its regents, alleging that it violated Title IX by discriminating against him on the basis of sex in the course of his disciplinary proceeding. Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681(a)), provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . . ” The trial court granted the University’s motion to dismiss, concluding that Doe’s general allegations were insufficient to state a Title IX claim. Reversing, the Ninth Circuit stated: “[T]he relevant inquiry on a motion to dismiss a Title IX claim in this context is whether the alleged facts, if true, raise a plausible inference that the university discriminated against the plaintiff on the basis of sex. Therefore, the central question here is whether Doe’s First Amended Complaint . . . meets this standard. We hold that it does.” (John Doe v. Regents of University of California (9th Cir., Jan. 11, 2022) 23 F.4th 930.)

Notice of Renewal of Judgment.

Thirteen years ago, a default judgment totaling $65,703.02 was entered against Hernandez. Ten years later, the trial court ordered the judgment renewed in the total amount of $130,501.96. Hernandez was served with the notice of renewal of judgment and the renewal application by mail, and proof of service was filed the same day. The envelope was returned, marked “Return to Sender Attempted – Not Known Unable to Forward.” There is evidence the application for renewal of judgment had been removed from the envelope, indicating Hernandez had removed it before sending the envelope back as undeliverable. Hernandez initially agreed in a declaration that he received the renewal application, but later changed attorneys and repudiated his earlier declaration, claiming he never received any notice or application. He filed a motion to vacate the renewal  but the trial court denied the motion. Affirming, the Court of Appeal stated: “In the trial court, it was Hernandez’s burden to prove by a preponderance of the evidence that he was entitled to vacate the renewal of judgment under Code of Civil Procedure, section 683.170.” “We have concluded above that Hernandez failed to meet his burden of showing, contrary to the proof of service, that he was not served with notice of the renewal of judgment.” (American Contractors Indemnity Co. v. Hernandez (Cal. App. 2nd Dist., Div. 8, Jan. 11, 2022) 73 Cal.App.5th 845.)

Plaintiff Bore Burden to Show Settlement Offer Made Pursuant to Code of Civil Procedure § 998 Was Not Made in Good Faith.

Defendant served plaintiff with an offer to settle under Code of Civil Procedure § 998 for “$51,000, plus reasonable attorneys’ fees and costs.” Plaintiff filed an objection to the offer. Fifteen months later, defendant served a second § 998 offer to settle for $145,000. A jury awarded plaintiff $48,416. On appeal, defendant contended both of its § 998 offers were valid, and because the jury awarded plaintiff less than the amount of either offer, the trial court erred in awarding plaintiff attorney fees and costs and denying defendant its costs. Reversing and remanding, the Court of Appeal stated: “We agree with [defendant] that both offers were valid. However, the trial court abused its discretion in failing to consider whether the first offer was made in good faith. As to the second offer, [plaintiff] did not meet his burden to show it was not made in good faith.” (Covert v. FCA USA, LLC (Cal. App. 2nd Dist., Div. 7, Jan. 11, 2022) 73 Cal.App.5th 821.)

Considering Both Code of Civil Procedure §§ 425.16 and 425.17 When Commercial Speech Is Involved.

Both parties sell life insurance and provide wealth management services, particularly in the Chinese and Chinese-American communities. Plaintiff filed a defamation action against defendant, alleging that defendant falsely told independent insurance agents and a client that plaintiff is dishonest and unethical and falsifies insurance documents. Defendant filed an anti-SLAPP motion under Code of Civil Procedure § 425.16, arguing her statements constituted protected speech because they served the public interest of providing consumer information about plaintiff’s fraudulent business practices. Plaintiff claimed that the commercial speech exemption, separately codified at § 425.17, removed any protection from defendant’s defamatory statements and that these statements did not qualify as protected activity under § 426.16. The trial court granted defendant’s anti-SLAPP motion. Reversing, the Court of Appeal stated: “Contrary to the trial court’s ruling, the anti-SLAPP statute does not protect [defendant’s] statements because they squarely fall within the commercial speech exemption set forth in section 425.17, subdivision (c). Courts are admonished to examine section 425.17 as a threshold issue before proceeding to an analysis under section 425.16. Section 425.17 expressly provides that speech or conduct satisfying its criteria is entirely exempt from anti-SLAPP protection even if ‘the conduct or statement concerns an important public issue.’ ” (Xu v. Huang (Cal. App. 2nd Dist., Div. 1, Jan. 11, 2022) 73 Cal.App.5th 802.)

A Motion for Trial Calendar Preference in Coordinated Proceedings.

Several plaintiffs sued the manufacturers of Paraquat alleging that the pesticide caused them to suffer Parkinson’s disease. The trial court granted the request of some plaintiffs to form a Judicial Council Coordination Proceeding (JCCP). Petitioner George Isaak, an 84-year-old retired farmer, alleged that his Parkinson’s disease was caused by his use of pesticides manufactured by defendants. After his action was added to the coordinated proceedings, Isaak moved for calendar preference under Code of Civil Procedure § 36 due to his age and condition. The trial court denied the motion but implemented a special procedure for seeking preference that it found would balance the interests of plaintiffs for whom a preference might be warranted with the need to streamline proceedings. A subsequent case management order established a “preference protocol,” under which a “Preference Committee” composed of various attorneys in the JCCP would review potential preference cases and meet and confer with counsel as to the viability and sequence of potential filings. The order also instituted a procedure for seeking preference and identified records to be submitted to the preference committee for consideration. Isaak sought extraordinary relief in the Court of Appeal, arguing that the trial court was required to grant his motion. Denying the petition for writ of mandate, the appeals court stated: “[W]e hold that Code of Civil Procedure section 36 does not supersede California Rules of Court, rule 3.504, which governs coordinated proceedings.” (Isaak v. Superior Court of Contra Costa County (Cal. App. 1st Dist., Div. 1, Jan. 11, 2022) 73 Cal.App.5th 792.)

A Failed Attorney Fee Strategy in Anti-SLAPP Motion

When a defendant files an anti-SLAPP motion that explicitly defers a request for fees to a subsequent motion, and the plaintiff files a voluntary dismissal, thus mooting the entire action, must the trial court rule on the merits of the anti-SLAPP motion as a predicate to an anticipated fees motion, or can it defer consideration of the merits until the defendant actually files a fees motion? The trial court here chose the latter course, declining to address the merits of two anti-SLAPP motions that had been mooted by a voluntary dismissal. Affirming the trial court’s refusal to rule on the anti-SLAPP motions after dismissal, the appeals court concluded that the defendants, “having elected not to file [Code of Civil Procedure] section 425.16, subdivision (c)(1) motions [for attorney fees] along with their anti-SLAPP motions, were entitled to seek recovery of their attorney fees by (1) filing cost memoranda no later than . . . 15 days after service of notice of the entry of  [plaintiff’s] voluntary dismissal . . . ; or (2) filing motions for attorney fees no later than . . . 60 days after service of notice of the entry of [plaintiff’s] voluntary dismissal . . . . They met neither deadline. Accordingly, because [defendants] failed to seek recovery of attorney fees by motion or cost memorandum in timely fashion, they waived any claim to a fee award.” (Catlin Insurance Company, Inc. v. Danko Meredith Law Firm, Inc. (Cal. App. 1st Dist., Div. 4, Jan. 11, 2022) 73 Cal.App.5th 764.)

Previously we reported:
Question of Fact Whether Officer Used Excessive Force.

A 12-year-old girl called 911 and told the dispatcher she, her sister, and their mother were barricaded in a room at their home because her mother’s boyfriend had a chainsaw and was going to attack them. She also said the man had anger issues and was always drinking. The 911 operator could hear a sawing sound on the call. When police arrived, the man followed their instructions. At one point, one of the officers announced the man had a knife in his pocket. Two officers gave the man orders, one from the man’s left side and the other from his right side. As the man turned his head to the officer on the left, he lowered his arms. A third officer immediately shot the man with a beanbag round and then a second round. The man brought a civil rights action alleging excessive force. The district court granted summary judgment in favor of all defendants on the federal claims and declined to exercise jurisdiction over the state law claims. The Ninth Circuit reversed as to one officer who knelt on the man’s back, but affirmed as to the officer who shot the beanbags, finding his force was objectively reasonable.  The Ninth Circuit also reinstated plaintiff’s state law claims and remanded for further proceedings. (Cortesluna v. Leon (9th Cir., Oct. 27, 2020) 979 F.3d 645.)

What happened next:

Holding the officer was entitled to qualified immunity and reversing the judgment of the Ninth Circuit, the United States Supreme Court stated: “ ‘Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ [Citation.] . . . [¶] ‘Precedent involving similar facts can help move a case beyond the otherwise hazy borders between excessive and acceptable force and thereby provide an officer notice that a specific use of force is unlawful.’ [Citation.] . . . On the facts of this case, neither LaLonde [v. County of Riverside (9th Cir., 2000) 204 F.3d 947] nor any decision of this Court is sufficiently similar.” (Rivas-Villegas v. Cortesluna (U.S., Oct. 18, 2021) 142 S.Ct. 4.)

The latest:

On remand, the district court dismissed the case. The Ninth Circuit affirmed dismissal of the federal claims, but added: “Because the Supreme Court’s holding that [the officer] did not violate clearly established law left undisturbed the majority’s conclusion that, viewing ‘all the evidence in Plaintiff’s favor, [the officer] used excessive force,’ see Cortesluna v. Leon, 979 F.3d 645, 654 (9th Cir. 2020), we remand to the district court for consideration of the other elements of Plaintiff’s Monell [v. Department of Social Services (1978) 436 U.S. 658,] claim based on [the officer’s] conduct and whether that claim can properly be resolved on summary judgment.  With respect to Plaintiff’s state-law claims relating to [the officer’s] conduct, and Plaintiff’s other remaining claims, including against other Defendants, our prior majority opinion, Cortesluna v. Leon, 979 F.3d 645 (9th Cir. 2020), remains the same.” (Cortesluna v. Leon (9th Cir., Jan. 12, 2022) 22 F.4th 866.)

Personal Jurisdiction in Airplane Accident Case.

Following a nonfatal airplane crash, a pilot, his wife, and two companies the spouses controlled filed a complaint in Arizona state court against various actors, including the manufacturer of the engine and the original manufacturer of the aircraft. The case was removed to federal court where defendants filed a motion to dismiss for lack of personal jurisdiction and attached an affidavit and declaration specifically rebutting Plaintiff’s unsupported jurisdictional allegations and arguments. Plaintiffs opposed the motion and requested jurisdictional discovery as to defendants if the court found no personal jurisdiction. The district court denied the request for discovery and granted the motion to dismiss. Affirming, the Ninth Circuit noted “Plaintiffs failed to establish that Continental has sufficient minimum contacts with Arizona to subject it to jurisdiction in this forum[.] . . .  Plaintiffs have failed to establish that their claim arises out of or relates to Textron’s contact with Arizona[.] . . . [W]e conclude that Plaintiffs’ request for discovery amounts to a mere ‘hunch that [discovery] might yield jurisdictionally relevant facts.’ [Citation.] Plaintiffs have not provided any information to support a contrary conclusion.” (LNS Enterprises LLC v. Continental Motors, Inc. (9th Cir., Jan. 12, 2022) 22 F.4th 852.)

Public Education for Child with Disability.

A.S. attended an elementary school in the Issaquah School District. In the summer before A.S.’s second-grade school year, her parents requested an Individuals with Disabilities Education Act evaluation ( 20 U.S.C. § 1400 et seq.; IDEA), because they believed she might have dyslexia. Before school started, the parents had A.S. evaluated by a retired school psychologist who concluded A.S. “demonstrated a pattern of academic and cognitive strengths and weaknesses consistent with th[e] classic profile of the specific learning disability of dyslexia.” Not satisfied with the school district’s response, the parents sued, alleging multiple IDEA violations. The parents contended the District should have evaluated A.S. specifically for dyslexia and used a different teaching method. A Washington State Administrative Law Judge found that the District did not violate the IDEA by evaluating A.S. under the specific-learning-disability category and not specifically for dyslexia. The district court held that the School District followed the IDEA. Affirming, the Ninth Circuit held that the school district correctly evaluated A.S. for a specific learning disability—of which dyslexia is one; provided an education reasonably calculated to enable A.S. to make appropriate progress in light of her disability; and was also not required to use the parents’ preferred teaching method. (Crofts v. Issaquah School District No. 411 (9th Cir., Jan. 12, 2022) 22 F.4th 1048.)

Arbitration Agreement Doesn’t Apply to Defendant.

In 2012, plaintiff bought a new BMW 535i sedan from a dealership. The dealership financed the purchase, and they entered into a purchase agreement which contained an arbitration clause. Due to alleged defects with the car, plaintiff sued BMW of North America, LLC, and the manufacturer, which was not a signatory to the purchase agreement. The question presented to the court was whether BMW may compel arbitration under the purchase agreement between plaintiff and the dealership. Analyzing the situation, the Ninth Circuit stated: “State law determines whether a non-signatory to an agreement containing an arbitration clause may compel arbitration. [Citation.] Under California law, a non-signatory is a third-party beneficiary only to a contract ‘made expressly for [its] benefit.’ Cal. Civ. Code § 1559.” The appeals court concluded BMW may not compel arbitration under the purchase agreement between plaintiff and the dealership. (Ngo v. BMW of North America, LLC (9th Cir., Jan. 12, 2022) 23 F.4th 942.)

No Double Dipping for Dual Status Civil Service Employee.

The Social Security Act (42 U.S.C. §401 et seq.), generally reduces the benefits of retirees who receive payments from separate pensions based on employment not subject to Social Security taxes. The reduction is not triggered by payments “based wholly on service as a member of a uniformed service.” The U. S. Supreme Court was called upon to decide whether this exception applies to civil-service pension payments based on employment as a “dual-status military technician”—a federal civilian employee who provides technical or administrative assistance to the National Guard. Holding that the uniformed service exception does not apply to dual-status civil service employees, the nation’s high court held: “Babcock’s civil-service pension payments fall outside the Social Security Act’s uniformed-services exception because they are based on service in his civilian capacity.” (Babcock v. Kijakazi (U.S., Jan. 13, 2022) 142 S.Ct. 641.)

The Staff of Health Facilities Must Be Vaccinated.

The Secretary of Health and Human Services required vaccination against COVID-19 for all covered staff in order for healthcare facilities to receive Medicare and Medicaid funding, unless exempt for medical or religious reasons. Two district courts, one in Missouri and one in Louisiana, enjoined enforcement of the rule. The government filed applications in the U.S. Supreme Court to stay those injunctions. Granting the stay pending review in the Eighth and Fifth Circuits, and the disposition of the government’s petition for a writ of certiorari if sought, the nation’s high court concluded “that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.” (Biden v. Missouri (U.S., Jan. 13, 2022) 142 S.Ct. 647.)

Implementation of OSHA Rule Requiring Vaccinations for All Workers Stayed.

The Secretary of Labor, acting through the Occupational Safety and Health Administration (OSHA), enacted a vaccine mandate requiring businesses with more than 100 employees to receive a COVID-19 vaccine. The mandate applied to roughly 84 million workers. It pre-empted contrary state laws and excepted only workers who obtain a medical test each week at their own expense and on their own time, and who also wear a mask each workday. Neither OSHA nor Congress had ever before imposed such a mandate. Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals across the country. The Fifth Circuit initially entered a stay. The cases were consolidated before the Sixth Circuit, which lifted the stay and allowed OSHA’s rule to take effect. Applicants sought emergency relief from the U.S. Supreme Court, arguing that OSHA’s mandate exceeded its statutory authority and was otherwise unlawful. Agreeing that the applicants were likely to prevail, the nation’s high court granted the requested relief and stayed implementation of OSHA’s rule, stating: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This “lack of historical precedent,” [] is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach. . . . Should the petitions for writs of certiorari be denied, this order shall terminate automatically. In the event the petitions for writs of certiorari are granted, the order shall terminate upon the sending down of the judgment of this Court.”

 (National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration (U.S., Jan. 13, 2022) 142 S.Ct. 661.)

State of California Must Pay Almost $2 Million for Attorney Fees in Civil Rights Case.

In this 42 U.S.C § 1983 civil rights action, petitioners claimed that the bail schedule set by the San Francisco Superior Court, an arm of the state, violated their rights to equal protection and due process because it failed to take into account pre-arraignment detainees’ inability to pay the state court’s preset mandatory bail amounts. Following years of litigation, the district court enjoined the sheriff—who it had long ago decided enjoyed Eleventh Amendment immunity from a damages judgment because she was acting on behalf of the state—from enforcing the bail schedule and any other state bail determination that makes the existence or duration of pre-trial detention dependent on the detainee’s ability to pay. After the injunction issued, the district court awarded a reduced lodestar amount of attorney’s fees—amounting to $1,950,000.00—to the class. And it held the State of California, which never challenged the amount of the fees, responsible for payment of the attorney’s fees, given that this was an official-capacity action against the sheriff, who was at all times acting on behalf of the state. The state appealed this determination, arguing that it was not responsible for paying the fee award. Affirming, the Ninth Circuit held that, given the trial court’s ruling that the sheriff acted on behalf of the state when setting bail, the court did not err in concluding the sheriff in her official capacity acted as the state’s agent for the purposes of assessing  fees. (Buffin v. City and County of San Francisco (9th Cir., Jan. 13, 2022) 23 F.4th 951.)

Filing a Lawsuit After Mediation Does Not Violate Nondisparagment Agreement Reached in Mediation.

Cross-defendant Jane Doe and cross-complainant Curtis Olson each owned units in the same condominium building. Doe sought a civil harassment restraining order against Olson pursuant to Code of Civil Procedure § 527.6. As a result of court-ordered mediation, the parties agreed “not to contact or communicate with one another or guests accompanying them, except in writing and/or as required by law,” to “go[ ] their respective directions away from one another” if “the parties encounter each other in a public place or in common areas near their residences,” and “not to disparage one another.” After the mediation, Doe sued Olson seeking damages, contending Olson breached the nondisparagement clause. Olson moved to strike the action by way of an anti-SLAPP motion pursuant to Code of Civil Procedure § 525.16. The case ended up in the California Supreme Court. The court held “the mediation agreement as a whole and the specific context in which it was reached — a section 527.6 proceeding — preclude Olson’s broad reading of the nondisparagement clause. Accordingly, Olson has failed to show the requisite ‘minimal merit’ on a critical element of his breach of contract claim — Doe’s obligation under the agreement to refrain from making disparaging statements in litigation.” (Olson v. Doe (Cal., Jan. 13, 2022) 2022 WL 121309.)

Supreme Court Resolves a Conflict Regarding Recoverable Costs for Exhibits.

A prevailing party in a civil case is entitled to recover costs incurred in the litigation. (Code Civ. Proc., § 1032, subd. (b).) Code of Civil Procedure § 1033.5 sets forth specific items of costs that are allowed or prohibited, and it also authorizes the trial court in its discretion to award or deny an item of costs not mentioned in the section. (§ 1033.5, subd. (c)(4).) There has been a conflict among the Courts of Appeal as to whether costs incurred in preparing photocopies of exhibits and demonstrative aids for trial are recoverable under § 1033.5 even if they were not ultimately used at trial. Here, the Court of Appeal held that such exhibit-related costs are recoverable under § 1033.5, subdivision (a)(13), which allows the recuperation of costs for models, enlargements, and photocopies of exhibits “if they were reasonably helpful to aid the trier of fact.” The court further held that such costs may be awarded in the trial court’s discretion under § 1033.5, subdivision (c)(4). The California Supreme Court held that “costs related to unused photocopies of trial exhibits and demonstratives are not categorically recoverable under section 1033.5(a)(13), but they may still be awarded in the trial court’s discretion pursuant to section 1033.5(c)(4).” (Segal v. ASICS America Corp. (Cal., Jan. 13, 2022) 2022 WL 120960.)

Nurse Wants Asylum.

The Board of Immigration Appeals (BIA) affirmed an immigration judge’s denial of a woman’s application for asylum. The woman, a nurse, fled to the United States from Mexico with her minor son after she was forced to provide medical services to drug cartel members. In its analysis, the BIA found that the woman’s occupation did not qualify as an immutable characteristic. The Ninth Circuit granted the petition for review, stating: “We grant Plancarte’s petition for review. With respect to asylum and withholding of removal, we remand to allow reconsideration of Plancarte’s proposed particular social group, and to allow the agency to reach other issues it has not yet addressed. With respect to CAT [Convention Against Torture], we remand for a determination whether the likelihood of torture is sufficient to warrant relief.” (Plancarte Sauceda v. Garland (9th Cir., Jan. 14, 2022) 23 F.4th 824.)

Collateral Order Doctrine Results in Dismissal ofPre-Judgment Appeal by Civilian Owners of Military Housing with Mold Who Claimed Sovereign Immunity.

Shortly after an active duty service member and his family moved into military housing in San Diego, they began experiencing water intrusion and mold problems. The housing was owned by a public-private venture created by statute, in which the United States Navy was a minority LLC member. A military property management company was hired by the owners to remediate the problem but it was unsuccessful. The family sued in California state court alleging negligence and other state tort claims. The owners removed the case to federal court based on federal enclave jurisdiction and other theories. Once in federal court, the property owners moved to dismiss, asserting they were government contractors acting at the direction of the federal government, and therefore they had derivative sovereign immunity. The United States filed a statement of interest in the case, and, along with the plaintiffs, opposed the motion to dismiss. The district court denied the motion and stayed the action pending appeal. Dismissing the appeal, the Ninth Circuit stated: “We hold that a district court order denying a claim of derivative sovereign immunity is not immediately appealable under the collateral order doctrine.” (Childs v. San Diego Family Housing LLC (9th Cir., Jan. 14, 2022) 22 F.4th 1092.)

Can Plaintiff Prove She Slipped and Fell When She Can’t Remember Falling?

Plaintiff alleged she slipped and fell on stairs in her sister’s apartment. The stairs had no handrail. She remembered being on the stairs, but the next thing she remembered was waking up in pain. There were no witnesses to her fall. The trial court granted summary judgment for the apartment’s owner, finding that, as a matter of law, plaintiff was barred from provingher case. Reversing, the Court of Appeal stated: “Though appellant cannot remember falling on Cassell’s stairs, the circumstantial evidence would permit a trier of fact to make a reasonable and probable inference that the condition of the stairs, including the absence of a handrail, was a substantial factor in the fall.” (Kaney v. Custance (Cal. App. 2nd Dist., Div. 2, Jan. 21, 2022) 2022 WL 190648.)

Trial Court Reduced Claimed Attorney Fees Because Plaintiff Prevailed on Only a Portion of FEHA Claims. 

Plaintiff sued his former employer for violations of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA), alleging race and age-based discrimination, harassment and retaliation-related claims. After a jury verdict in his favor and an award of damages on his claims for retaliation and failure to prevent retaliation, plaintiff moved for an award of $809,681.25 in attorney fees. The trial court awarded only $129,540.44 in fees, based in part on its determination the unsuccessful discrimination and harassment claims were not sufficiently related or factually intertwined with the successful retaliation claims. On appeal, plaintiff contended that determination was based on a legal error and the court thus abused its discretion in reducing the fee award. Reversing, the Court of Appeal stated: “In sum, the trial court erred in reducing by 75 percent the $518,161.77 subtotal [] based on its conclusion that Vines’s unsuccessful discrimination and harassment claims were not sufficiently related to or factually intertwined with his successful retaliation-based claims.” (Vines v. O’Reilly Auto Enterprises, LLC (Cal. App. 2nd Dist., Div. 7, Jan. 21, 2022) 2022 WL 189840.)

If You Want a Jury Trial, Best to Post Jury Fees, Even When Other Side Already Did. 

Plaintiff brought this action in September 2015. The matter was originally set for a jury trial at defendant’s request. On September 23, 2019, the day of trial, defendant waived a jury trial. However, that same day, plaintiff made an oral request for a jury trial and offered to post jury fees. The trial court ruled that plaintiff waived its right to a jury trial by failing to timely post jury fees and denied plaintiff’s oral motion for relief from the waiver. Plaintiff did not seek writ review of the trial court’s denial of relief from jury waiver, and the matter proceeded to a bench trial at which defendant prevailed. Affirming, the Court of Appeal stated: “The Legislature’s 2012 amendments to Code of Civil Procedure section 631 provide that a civil litigant may waive their constitutional right to a jury trial by failing to timely deposit jury fees in advance of trial, and the trial court’s decision on whether there has been such a waiver is reviewed under an abuse of discretion standard. These provisions are clear and unequivocal. Finding no abuse of discretion in the trial court’s order determining a waiver occurred in this case, we affirm the judgment.” (TriCoast Builders, Inc. v. Fonnegra (Cal. App. 2nd Dist., Div. 2, Jan. 21, 2022) 2022 WL 189883.)

Duties of ERISA Fiduciaries. 

Three current or former employees of a university sued alleging its Employee Retirement Income Security Act of 1974 plan fiduciaries at the university violated their duty of prudence. (29 U.S.C. § 1104(a)(1)(B); ERISA.) The university’s Retirement Investment Committee (RIC) exercises discretionary authority to control and manage the plans. Plaintiffs contended the RIC failed to monitor and control the fees they paid for recordkeeping, resulting in unreasonably high costs to plan participants, and offered a number of mutual funds and annuities in the form of “retail” share classes that carried higher fees than those charged by otherwise identical “institutional” share classes of the same investments, which are available to certain large investors. Plaintiffs further alleged the RIC offered too many investment options—over 400 in total for much of the relevant period—and thereby caused participant confusion and poor investment decisions. Defendant’s motion to dismiss was granted by the district court and affirmed by the Seventh Circuit. The U.S. Supreme Court vacated the dismissal. Citing Tibble v. Edison, 575 U.S. 523 (2015), the high court stated: “If the fiduciaries fail to remove an imprudent investment from the plan within a reasonable time, they breach their duty.” (Hughes v. Northwestern University (U.S., Jan. 24, 2022) 2022 WL 199351.)

Protester Refused to Leave City Council Meeting by “Going Limp,” and Sued for Injuries Incurred While Being Dragged Out. 

Along with other protestors who prevented a city council meeting from being conducted, plaintiff refused to leave after requests and warnings by police officers. She and the others “went limp.” Officers handcuffed the protesters and carried or pulled them by their arms from the meeting room. Plaintiff sued under 42 U.S.C. § 1983, alleging that she suffered wrist and shoulder injuries when she was forcibly removed. The district court denied the police officers’ motion for summary judgment asserting qualified immunity. Reversing, the Ninth Circuit stated: “Because we conclude that the Officers did not use excessive force in violation of Williamson’s Fourth Amendment rights, they are entitled to qualified immunity as a matter of law.” (Williamson v. City of National City (9th Cir., Jan. 24, 2022) 23 F.4th 1146.)

Governmental Immunity for Claim Arising from Accidental Drowning. 

 A 30-year-old man who did not know how to swim drowned after he fell into the waters of the Santa Barbara Harbor while doing stand-up paddle boarding. His mother sued the City of Santa Barbara, which is responsible for the harbor’s regulation and administration, for wrongful. The trial court granted summary judgment for the city. Affirming, the Court of Appeal stated: “While we understand the heartbreaking nature of this case, the record confirms the trial court properly granted summary judgment based upon the City’s immunity from liability under [Government Code] section 831.7.” (Mubanda v. City of Santa Barbara (Cal. App. 2nd Dist., Div. 6, Jan. 24, 2022) 2022 WL 202814.)

Federal District Court Should Have Remanded Case. 

A third party removed a state court case to federal court, and the district court denied a request to remand. Reversing, the Ninth Circuit stated: “As a federal court, we must enforce congressionally enacted limits on our jurisdiction. Constrained by the text of [28 U.S.C.] § 1441(a), we decline to follow the Second Circuit’s La Russo rule [La Russo v. St. George’s University School of Medicine (2014) 747 F.3d 90], but instead hold that only the actual named ‘defendant or the defendants’ may remove a case under that removal provision. DBNTC was not a defendant when it removed this case, so the district court should have remanded the case.” (Sharma v. HSI Asset Loan Obligation Trust (9th Cir., Jan. 25, 2022) 23 F.4th 1167.)

University Not Responsible for Off-Campus Abuse by One Student to Another Student. 

Plaintiff’s boyfriend physically assaulted her. She sued the University of Arizona, contending the university paid for the boyfriend’s education and approved his off-campus living arrangements because he was a football player for the school, and that the “control-over-context” requirement was met under Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ. (1999) 526 U.S. 629, 645. The district court granted summary judgment for the university, and the Ninth Circuit affirmed, stating: “[A] Title IX claim fails where the educational institution has substantial control over the harasser but no control over the context where the harassment occurred.” (Brown v. State of Arizona (9th Cir., Jan. 25, 2022) 23 F.4th 1173.)

Fake Email Directed Clerk to Pay Invoice. 

Plaintiff management company suffered an economic loss and submitted a claim to defendant insurance company. Plaintiff’s accounts payable clerk had received an email purportedly from her superior directing her to make an invoice payment of $50,000. She made the payment as directed. Unbeknownst to the clerk, the email was from a fraudulent email address. She received another email directed her to pay $150,000, which she did. When a third email directed her to pay an invoice for $470,000, she became suspicious. Plaintiff had “Computer Fraud” and “Funds Transfer Fraud” provisions in a 2012 commercial crime insurance policy issued by defendant. When defendant denied the claim for the $200,000 loss, plaintiff sued. The district court dismissed the action. Reversing, the Ninth Circuit found the lower court relied on a distinguishable unpublished case in making its order. (Ernst and Haas Management Company, Inc. v. Hiscox, Inc. (9th Cir., Jan. 26, 2022) 2022 WL 223965.)

Summary Adjudication of Elder Abuse Cause of Action. 

Defendant hospital provided in-home nursing care to decedent to care for her bed sores on six occasions. She died of complications from her wounds about four months after the last in-home treatment visit. Defendant moved for summary adjudication of the cause of action for elder abuse. The trial court denied the motion. Defendant hospital sought extraordinary relief in the Court of Appeal. Issuing a writ of mandate, the appeals court stated: “We conclude that, in opposition to defendants’ prima facie showing of entitlement to summary adjudication on plaintiffs’ Elder Abuse Cause of action based on the absence of a substantial caretaking or custodial relationship, plaintiffs failed to raise a triable issue of material fact. We will issue the requested writ.” (Oroville Hospital v. Superior Court (Cal. App. 3rd Dist., Jan. 26, 2022) 2022 WL 224494.)

Religious Freedom While Incarcerated.

A Nevada prisoner said that as a devout Muslim, he must purify himself and anoint himself with scented oil before each of his five daily prayers. The Nevada Department of Corrections contended the prisoner was not prevented from praying by allowing his use of scented oil once a week and the use of unscented baby oil during the remainder of the week. The prisoner sued under the Religious Land Use and Institutionalized Persons Act (42 U.S.C. § 2000cc-5(7)(A)) to have his religious liberty restored. The district court found for the prisoner. On appeal, Nevada invited the Ninth Circuit to question whether scented oil is really necessary to the prisoner’s faith. Affirming, the appeals court stated: “Because we agree that Nevada’s regulation banning personal possession of scented oil substantially burdened Johnson’s religious exercise and the State failed to show that the regulation was the least restrictive means of serving its compelling interest, we affirm.” (Johnson v. Baker (9th Cir., Jan. 26, 2022) 2022 WL 224030.)

Attorney-Client Privilege When Serving as Both a Lawyer and a Trusted Business Advisor. 

A grand jury issued subpoenas related to a criminal investigation to a company and a law firm. The district court held them in contempt after they failed to comply with the subpoenas. The trial court ruled that certain dual-purpose communications were not privileged because the “primary purpose” of the documents was to obtain tax advice, not legal advice. On appeal, the company and the law firm argued that the trial court erred in relying on the “primary purpose” test and should have instead relied on a broader “because of” test. Affirming the orders of the lower court, the Ninth Circuit concluded “the primary-purpose test governs in assessing attorney-client privilege for dual-purpose communications.” (In re Grand Jury (9th Cir., Jan. 27, 2022) 2021 WL 6750904.)

Frameworks that Govern Whistleblower Retaliation Claims. 

The Ninth Circuit requested that the California Supreme Court decide which of two frameworks govern whistleblower retaliation claims because some district courts were applying the framework set forth in California Labor Code § 1102.6 and some were applying a standard borrowed from McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. Under McDonnell Douglas, the employee must establish a prima facie case of unlawful discrimination or retaliation, then the employer bears the burden of articulating a legitimate reason for taking the challenged adverse employment action, and finally, the burden shifts back to the employee to demonstrate that the employer’s proffered legitimate reason is a pretext for discrimination or retaliation. Under § 1102.6, once an employee-whistleblower establishes by a preponderance of the evidence that retaliation was a contributing factor in the employee’s termination, demotion, or other adverse action, the employer then bears the burden of demonstrating by clear and convincing evidence that it would have taken the same action “for legitimate, independent reasons.” This is what the California Supreme Court decided: “Unsurprisingly, we conclude courts should apply the framework prescribed by statute in Labor Code section 1102.6. Under the statute, employees need not satisfy the McDonnell Douglas test to make out a case of unlawful retaliation.” (Lawson v. PPG Architectural Finishes, Inc. (Cal., Jan. 27, 2022) 2022 WL 244731.)

Demand to Settle Prior to Filing Complaint Amounted to Extortion. 

This action began as a typical wrongful termination case. Attorney Amy Mousavi represented the plaintiff. Prior to filing the complaint, Mousavi engaged in a series of demands to settle that included threatening to inform defendant’s imminent merger partner of the forthcoming legal action involving whistleblowing about defendant’s alleged criminal practices. In fact, Mousavi did transmit that information and the merger fell through, resulting in a loss of significant profits for defendant. Defendant thereafter cross-complained, alleging Mousavi and her law firm engaged in illegal attempts to force defendant into settling. Mousavi and her firm filed an anti-SLAPP motion to strike pursuant to Code of Civil Procedure § 225.16, which the trial court granted. Reversing in part, the Court of Appeal held that “Mousavi’s email settlement demands . . . were not protected speech in light of the Supreme Court’s ruling in Flatley v. Mauro (2006) 39 Cal.4th 299,” stating: “Mousavi’s escalating series of threats ultimately transformed what had been legitimate demands into something else: extortion. We therefore conclude Falcon’s first cause of action is not protected by the anti-SLAPP law as a result of the well-established  “ ‘Flatley rule.’ ” (Falcon Brands, Inc. v. Mousavi & Lee, LLP (Cal. App. 4th Dist., Div. 3, Jan. 27, 2022) 2022 WL 246851.)

Lemon Law and CCP § 998 Offer.

In a Song-Beverly Warranty Act case tried before the bench, the court ordered $1 in damages and $684,250 in attorney fees. (Civ. Code, §§ 1790, et seq.) On appeal, defendant contended the trial court applied the incorrect legal standard in finding that plaintiff was the prevailing buyer under Civil Code § 1794, subdivision (d). As it turned out, defendant had served plaintiff with a statutory offer to settle pursuant to Code of Civil Procedure § 998 to repurchase the vehicle for $28,430.80, plus costs, expenses and attorney fees under § 1794, subdivision (d). The Court of Appeal stated: “Here, our concern is that Jaguar’s 998 Offer presents somewhat of a moving target. For example, if Duff were awarded an amount over $28,430.80, say $30,000, it is not clear, by the terms of the statutory offer that the amount was greater than what Jaguar was offering to pay. Jaguar could argue, based on the evidence offered by Duff at trial, that it actually would have paid him more than $30,000, and thus, Duff recovered less than the 998 Offer. Therefore, we agree with the trial court that ‘[t]he offer [wa]s not sufficiently specific; judgment could be for $28,430.80 or for some higher amount that is subject to proof.’ ” Reversing, the appeals court remanded for the trial court to reconsider attorney fees in light of both § 1794, subdivision (d) and Code of Civil Procedure § 1032. (Duff v. Jaguar Land Rover North America, LLC (Cal. App. 4th Dist., Div. 1, Jan. 27, 2022) 2022 WL 246853.)

Jurisdiction Over Marriage Dissolution.

Husband lives in California. Wife lives in Massachusetts. Husband petitioned for separation in California. A few weeks later, wife petitioned for dissolution in Massachusetts  and filed a motion to quash and abate in California. Husband thereafter filed a petition for dissolution in California. The California court granted wife’s motion to abate, finding Massachusetts was first and a better suited forum. Affirming, the Court of Appeal stated: “We conclude the trial court lacked personal jurisdiction over wife when husband filed his petition for separation and his amended petition for dissolution. We further conclude that even if her motion to quash or abate constituted consent to personal jurisdiction in California, that consent came too late to make a difference in the determination of which court had jurisdiction over the parties first.” (In re Marriage of Thompson (Cal. App. 3rd Dist., Jan. 27, 2022) 2022 WL 248065.)

The Broadband Industry Doesn’t Want Any California Regulations.

The district court denied a request for a preliminary injunction brought by companies in the broadband business. The companies contended California should be enjoined from enforcement of the California Internet Consumer Protection and Net Neutrality Act of 2018, or Senate Bill 822. The Ninth Circuit considered the broadband industry’s contention that, when the Federal Communications Commission (FCC) reclassified broadband services under Title I (In the Matter of Restoring Internet Freedom (2018) 33 FCC Rcd. 311 ), thereby abandoning its regulatory authority with respect to net neutrality, California was preempted from stepping into the breach to enact its own net neutrality protections. Affirming the lower court’s denial of an injunction, the Ninth Circuit stated: “Without the underlying authority to regulate net neutrality under Title I, the FCC is without the authority to preempt California from doing so.” (ACA Connects v. Bonta (9th Cir., Jan.28, 2022) 2022 WL 260642.)

Non-Compete Clause. 

In 2011, defendant entered a joint venture with another company, and plaintiff company was established. Defendant became the new company’s chief executive officer. As part of his employment contract, defendant agreed to abide by certain restrictive covenants, including a covenant barring him from soliciting plaintiff’s customers for a three-year period following the termination of his employment. In 2016, defendant was terminated for cause. He thereafter established a new construction company called Silvermark and sent letters to several of plaintiff’s customers describing his new venture. Plaintiff successfully obtained preliminary and permanent injunctive relief prohibiting defendant from soliciting its customers and prevailed on its motion for summary adjudication of its breach of contract claim. On appeal, defendant contended his communications with plaintiff’s customers were not solicitations as a matter of law. Affirming, the Court of Appeal stated: “While there are no cases directly addressing the meaning of ‘solicit’ or ‘advertisement’ in the context of [Bus. & Prof. Code §] 16601, ‘[a]t common law, the boundary separating fair and unfair competition in the context of a protected customer list has been drawn at the distinction between an announcement and a solicitation.’ (American Credit Indemnity Co. v. Sacks (1989) 213 Cal.App.3d 622, 634.) [¶] As is plain from the contents of the letter, the Silvermark letter went well beyond this type of an announcement by actively encouraging Blue Mountain customers to leave Blue Mountain and do business with Silvermark.” (Blue Mountain Enterprises, LLC v. Owen, (Cal. App. 1st Dist., Div. 1, Jan. 19, 2022) 2022 WL 263398.)

Antitrust Allegations in the Solar Energy Market. 

Defendant is a power and water utility that services most of the Phoenix metropolitan area. In 2015, defendant increased prices for customers with solar-energy systems. Plaintiffs  sued defendant under federal and Arizona state law, alleging that the new price plan unlawfully discriminates against customers with solar-energy systems and was designed to stifle competition in the electricity market. The district court dismissed the complaint in its entirety. Plaintiffs appealed and defendant cross-appealed the district court’s rejection of certain of its affirmative defenses. Affirming dismissal of the state law claims and reversing part of the federal claims, the Ninth Circuit stated: “We conclude that the LGAA [Local Government Antitrust Act (LGAA), 15 U.S.C. §§ 34–36] shields [defendant] from federal antitrust damages. Because [plaintiffs] also seek declaratory and injunctive relief, and the LGAA does not bar those forms of relief, we remand to the district court for further proceedings.” (Ellis v. Salt River Project (9th Cir., Jan. 31, 2022) 2022 WL 276031.)

Apparently There Is No Way to Try Experimental Drugs Pursuant to the FDA’s Expanded Access Program Without Being Prosecuted Under the Controlled Substances Act. 

The purpose of the Food, Drug and Cosmetic Act (21 U.S.C. § 9 ) is to protect consumers from various risks associated with drugs and biological products. In general, before a new drug can be introduced into the market, the Food and Drug Administration (FDA)  must approve its new drug application or biologics license application, which must include data from clinical trials. Alternatively, a patient may attempt to access an investigational new drug through the FDA’s expanded access program, the Right to Try Act (21 U.S.C. § 360bbb-0a; RTT Act). Appellant sought to challenge a letter sent by the Drug Enforcement Administration (DEA) in response to an attorney’s letter seeking advice and guidance on how a physician could administer psilocybin (a hallucinogenic substance) to a terminally ill patient without incurring liability under the Controlled Substances Act (21 U.S.C. §§ 801–904; CSA). Specifically, the attorney’s letter asked the DEA how the CSA would accommodate the RTT  Act under the CSA. In response, the DEA identified available exemptions in the CSA and indicated that the RTT Act did not create any additional exemptions. The Ninth Circuit did not have a different answer, concluding it lacked jurisdiction to review the matter because the letter was not a final decision of the Attorney General. (Advanced Integrative Medical Science Institute, PLLC v. Garland, (9th Cir., Jan. 31, 2022) 2022 WL 276030.)

Notice of Rejection of Government Claim Faulty. 

Plaintiff sued a government entity and the trial court granted defendant’s motion for summary judgment because the complaint was filed more than six months after defendant mailed a notice of rejection of plaintiff’s government claim. On appeal, plaintiff contends the notice of rejection was defective because it did not include the full warning required by Government Code § 913, subdivision (b). Reversing, the Court of Appeal found the notice of rejection was indeed defective and that plaintiff had two years to file suit. (Andrews v. Metropolitan Transit System (Cal. App. 4th Dist., Div. 1, Jan. 31, 2022) 2022 WL 278654.)

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