Litigation Update: February 2024

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

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Julia C. Shear Kushner
  • Editors, Dean Bochner, Colin P. Cronin, Jenn French, Jennifer Hansen, Ryan Wu
Lower Court Dismissal for Lack of Personal Jurisdiction Reversed.

Jane Doe is a resident of California and a U.S. citizen. When she was 14, “a sex trafficker forced [her] to participate in the creation of videos of adults raping her.” Some of the videos were uploaded to defendants’ pornography websites. One of the videos has been viewed 160,000 times. She contacted the websites and asked them to take down the videos, but received no response until her attorney sent a cease-and-desist letter in 2020; at that point, the videos were taken down. Defendants’ principal place of business is in Prague and defendants do not have offices or conduct business in the U.S. Their videos are on servers in the Netherlands, which are operated by a U.S.-based company wholly owned and operated by another U.S.-based parent company. Jane Doe sued numerous parties who allegedly violated federal and California law by participating in, or benefiting from, the distribution of videos on the internet that depicted the sexual abuse of her and of other victims of childhood sex-trafficking. The district court dismissed all the claims on various grounds, and, on appeal, plaintiff challenged only the district court’s dismissal for lack of personal jurisdiction of the claims she asserted against 11 foreign-based defendants. Reversing, the Ninth Circuit stated: “We conclude that the district court erred in holding that it lacked specific personal jurisdiction against WGCZ and NKL under the three-part due process test”: (1) defendant purposefully directed its activities toward the United States or purposefully availed itself of the privilege of conducting business in the United States; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and, (3) the exercise of jurisdiction must comport with fair play and substantial justice. (Doe v. WebGroup Czech Republic, A.S. (9th Cir., Jan. 2, 2024) 89 F.4th 1188.)

Issues Regarding Mechanics Liens and Payment Bonds.

California’s mechanics’ lien law (Civ. Code, §§ 8000–9566) requires certain contractors that are awarded a public works contract involving an expenditure over $25,000 to post a payment bond before work begins. It also authorizes laborers and several others to assert a claim against the payment bond when they have not been paid in full. The court considered two questions about this law that arose after a subcontractor for two state projects failed to fully pay a staffing company for its services: (1) whether the staffing company is a “laborer” within the meaning of the mechanics’ lien law; and (2) whether the payment bonds issued for these projects are subject to the mechanics’ lien law’s requirements. The trial court concluded that the staffing company was not a “laborer” and that the payment bonds were subject to the mechanics’ lien law’s requirements. Affirming, the Court of Appeal stated: “‘[l]aborer means a person who, acting as an employee, performs labor upon, or bestows skill or other necessary services on, a work of improvement.” ([Civ. Code] § 8024, subd. (a); see § 8000.)” and “Considering the statutory scheme as a whole, together with this historical context, we find the Legislature had no intent to exempt state projects from all these requirements covering payment bonds.” (K & S Staffing Solutions, Inc. v. Western Surety Company (Cal. App. 3rd Dist., Jan. 2, 2024) 98 Cal.App.5th 647.)

Speak or Remain Silent?

A U.S. Border Patrol agent witnessed a man crawling on the ground near a border fence—a mere thirty yards from Mexico. The man admitted he was a Mexican citizen without documentation. After the man was arrested and taken to a border station, another border patrol agent read him his Miranda rights as well as his immigration-related administrative rights, in which the man was told his conversation with border agents might be his only opportunity to tell the agents he was seeking asylum. The man waived both sets of rights, then confessed that he had been smuggled across the border that morning. Based on his statements to the border patrol agents, the man was later convicted of attempted illegal entry under 8 U.S.C. § 1325(a). On appeal, he argued that the Miranda warning was inadequate because the agent also warned him that the post-arrest interview may be his only chance to seek asylum. Affirming the conviction, the Ninth Circuit  stated: “While these two warnings may have posed difficult decisions for Gonzalez, they are neither contradictory nor confusing. Criminal defendants often face a fork in the road with potential peril on either path. The record suggests that Gonzalez understood his rights, and Gonzalez’s gambit was to talk in hopes of seeking asylum, despite the risks. We thus hold that the government did not need to provide further clarification to the Miranda warnings.” (United States v. Gonzalez-Godinez (9th Cir., Jan. 3, 2024) 89 F.4th 1205.)

Trial Court Erred in Excluding Plaintiff’s Causation Experts.

A man developed non-Hodgkin’s lymphoma after working more than four decades for a railway where he was continuously exposed to toxic levels of diesel exhaust and its chemical constituents. His son brought a wrongful death action. One of plaintiff’s three causation experts gave a reasonable scientific explanation for his causation opinions and cited objective, verifiable evidence supporting his opinions. The other party submitted no evidence that the expert’s reasoning or methodology was scientifically invalid. The trial court excluded the testimony of all three of plaintiff’s causation experts.  Reversing, the Court of Appeal said the mere fact that a cause-effect relationship had not been conclusively established in the scientific literature did not render the opinions inadmissible. (Garner v. BNSF Railway Company (Cal. App. 4th Dist., Div. 1, Jan. 4, 2024) 98 Cal.App.5th 660.)

Qui Tam Action Against Drug Manufacturer to Continue Because Public Disclosure Bar Had Not Been Triggered.

Plaintiff alleged that, beginning in 2012, a pharmaceutical company fraudulently obtained two sets of patents to prevent competitors from creating cheaper, generic versions of the drug Apriso, which is prescribed for ulcerative colitis. The absence of generic competition allowed the company to charge high prices for the drug. A one-month prescription of Apriso retailed for about $600, earning the company over $200 million each year. A substantial portion of those proceeds came from the federal government, which paid for Apriso through Medicare and Medicaid. The district court dismissed plaintiff’s claims under the False Claim Act (31 U.S.C. §§ 3729–3733), concluding the allegations had already been publicly disclosed. The Ninth Circuit reversed and remanded, concluding the public disclosure bar had not been triggered. (Silbersher v. Valeant Pharmaceuticals International, Inc. (9th Cir., Jan. 5, 2024) 89 F.4th 1154.)

Grant of Anti-SLAPP Motion Reversed in Case Involving Student Loan Debt Collection.

Defendant is both a debt collector and the servicer of plaintiff’s defaulted student loan. There is another pending debt collection action in which the present defendant is the plaintiff, and the present plaintiff is the defendant. In the current action, plaintiff filed on behalf of a class, contending deceptive acts by defendant in violation of Civil Code § 1788 et. seq.; the Robbins-Rosenthal Fair Debt Collection Practices Act. Plaintiff alleged the documents that purportedly showed the identity of ownership of the loans and proof of assignments were lost and that defendant “manufactured” new documents. The trial court granted defendant’s special motion to strike pursuant to Code of Civil Procedure § 425.16, the anti-SLAPP statute, finding plaintiff’s complaint arose from protected activity. On appeal, plaintiff contended the trial court erroneously found the alleged claims were barred by the litigation privilege in Civil Code § 47. The Attorney General of California filed an amicus brief contending that the litigation privilege does not apply to Rosenthal Act debt collection litigation. The Court of Appeal reversed and remanded to give plaintiff an opportunity to demonstrate she would probably prevail on the merits. The Court of Appeal stated: “[D]ebt collectors are barred from using any false, deceptive or misleading representations in connection with the collection of any debt.” (Moten v. Transworld Systems Inc. (Cal. App. 4th Dist., Div. 2, Jan. 5, 2024) 98 Cal.App.5th 691.)

U.S. Supreme Court Will Review Holding of Colorado Supreme Court.

Former President Donald Trump filed a petition for writ of certiorari in the U.S. Supreme Court, stating: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?” The Supreme Court issued this order: “The petition for a writ of certiorari is granted. The case is set for oral argument on Thursday, February 8, 2024.” The Court also (and unusually) ordered that “any amicus curiae briefs in support or in support of neither party, are to be filed on or before Thursday, January 18, 2024.” (Trump v. Anderson (U.S., Jan. 5, 2024) 2024 WL 61814.)

Abortion Wars Continue.

A federal district court in Idaho enjoined the enforcement of Idaho Code, § 18-622, which prohibits and criminalizes most abortions, on the ground that the statute is preempted by the Emergency Medical Treatment and Labor Act (42 U.S.C. § 1395dd). The Idaho Legislature filed an appeal in the Ninth Circuit, and, that same day also asked the district court to stay the injunction pending appeal. When the district court failed to respond to the stay request, the legislature moved for a stay pending appeal in the Ninth Circuit, which granted a stay. Two days later, the United States sought reconsideration of the stay issue, and the Ninth Circuit thereafter granted rehearing en banc. The Idaho Legislature subsequently petitioned for a stay in the U.S. Supreme Court, arguing: “Without a stay, the Legislature faces irreparable injury from an erroneous federal injunction, and that injury . . . will persist until the Ninth Circuit elects to issue a final judgment. . . . To avoid irreparable harm to the State while the Legislature defends Idaho law on the merits, the Legislature respectfully requests an administrative stay, if necessary, and a stay of the preliminary injunction pending disposition of the appeal in the . . . Ninth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.” The Supreme Court granted a stay on the injunction and set the matter for oral argument. (Moyle v. United States (U.S., Jan. 5, 2024) 2024 WL 61828.)

No Violation Under the Racial Justice Act.

A jury convicted the defendant of first-degree murder with special circumstances (that the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle) and sentenced him to life without the possibility of parole. On appeal, the defendant sought reversal of his conviction on the ground that his trial counsel exhibited racial bias toward him in violation of the Racial Justice Act (Pen. Code, § 745) by advising him to “use Ebonics, slang, and to sound ghetto” when he testified. Affirming, the Court of Appeal stated: “When a criminal defendant voluntarily takes the stand, his or her credibility is always at issue. A defense attorney’s salient advice to a defendant to speak in his or her own voice when he or she testifies does not indicate bias or animus toward a defendant because of his or her race, ethnicity, or national origin.” (People v. Coleman (Cal. App. 1st Dist., Div. 5, Jan. 5, 2024) 98 Cal.App.5th 709.)

Class Action for Alleged Labor Code Violations.

Under California law, employers may not require employees to work during rest periods. (Lab. Code, § 226.7, subd. (b).) Defendant’s rest break policy expressly stated: “Employees are not to leave the store premises during scheduled working hours without permission of their supervisor, with the exception of meal periods.” Also under California law, employers must pay employees for all hours worked. (Lab. Code, § 1194, subd. (a).) Between 2014 and 2019, defendant’s bag check policy stated that “all employees will be subject to a VISUAL inspection of all personal belongings in their possession any time they leave the store premises (i.e., end of work shifts, breaks, store errands).” The policy also required that the inspection “be conducted by a manager at the store entrance, inside of the store,” even though employees clock in and out at the register, not at the store entrance. Plaintiff’s class action alleged that the two employee policies at defendant’s stores violate California law. The district court denied class certification. Reversing in part and affirming in part, the Ninth Circuit stated: “The first policy required employees to take rest breaks on store property (the “Rest Break Claim”), and the second one required them to surrender to bag checks when they ended their shift (the “Bag Check Claim”). For the Rest Break Claim, the evidence shows that [defendant] applied its rest break policy uniformly across its stores. A few outlier examples of employees not following the policy generally cannot by themselves defeat class certification. But for the Bag Check Claim, the record suggests that many employees did not abide by the bag check policy and that [defendant] did not consistently enforce it. And the very nature of [defendant’s] bag check policy—with the inherent variations in employees’ circumstances—may require highly individualized inquiries. We thus reverse the district court’s denial of class certification for the Rest Break Claim, affirm the denial of certification for the Bag Check Claim, and remand for further proceedings consistent with this opinion.” (Miles v. Kirkland’s Stores Inc. (9th Cir., Jan. 8, 2024) 89 F.4th 1217.)

Appellate Court Found Defendant’s Nonseverability Clause in Arbitration Agreement to Be a Poison Pill.

Plaintiffs are current and former employees of defendant who executed an agreement to arbitrate all claims arising out of their employment. The arbitration agreement covered claims for wages and other compensation, and violations of any federal, state, or other law, statute, regulation, or ordinance. Another section of the agreement waived the right to file class, collective, or representative actions. The agreement also contained a nonseverability clause. Plaintiffs sued defendant for violations of the Labor Code and the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). The trial court denied defendant’s petition to compel arbitration. Affirming, the Court of Appeal concluded that “the waiver provision in the arbitration agreement constitutes an unenforceable wholesale waiver of plaintiffs’ rights to bring ‘representative’ PAGA actions. Further, by operation of the nonseverability and poison pill clauses, the unenforceability of the waiver provision renders the entire arbitration agreement null and void.” (Demarinis v. Heritage Bank of Commerce (Cal. App. 1st Dist., Div. 3, Jan. 8, 2024) 98 Cal.App.5th 776.)

Plaintiffs Must Pay Costs of Defendant They Dismissed.

Plaintiffs alleged that a mattress they bought was defective. While the parties were conducting discovery, plaintiffs settled with the retailer. When the trial court denied them leave to amend their complaint against the manufacturer, they voluntarily dismissed those claims before filing a new lawsuit. The manufacturer moved for costs as the prevailing party in the dismissed lawsuit. The trial court ordered plaintiffs to pay some of the manufacturer’s costs, including costs of depositions and service of process. On appeal, plaintiffs argued it was improper to award costs related to depositions that were noticed but did not occur. Affirming, the Court of Appeal stated: “[T]he proper analysis focuses on whether costs were reasonably necessary to litigating a case when incurred, not whether the costs could have been avoided in retrospect. . . . [T]he trial court did not abuse its discretion in finding the costs were reasonably necessary.” (Garcia v. Tempur-Pedic North America, LLC (Cal. App. 4th Dist., Div. 2, Jan. 8, 2024) 2024 WL 78511.)

No Liability for Alleged Dangerous Condition of Public Property.

A man and woman perished after a collision left their vehicle in an alleged “drain,” where they drowned. Their family members sued an irrigation district on the theory that the water level in the drain was a dangerous condition of public property. The trial court granted summary judgment for the irrigation district on the grounds of “canal immunity.” Government Code § 831.8 provides that irrigation districts are not liable for an injury caused by the condition of canals “if at the time of the injury the person injured was using the property for any purpose other than that for which the district or state intended it to be used.” On appeal, plaintiffs contended that canal immunity applies only when the injured party volitionally uses the public property at issue. Affirming, the Court of Appeal concluded that the statute “only places a single limitation on state/irrigation district immunity for injuries caused by the condition of canals, conduits, or drains; immunity does not apply when the person injured was using the property for a purpose intended by the district or state.” (Perez v. Oakdale Irrigation District (Cal. App. 5th Dist., Jan. 8, 2024) 98 Cal.App.5th 793.)

Actions Against Superior Court and Judge Dismissed.

Plaintiffs alleged the Superior Court of Los Angeles and a specific judge on that court set cash bail that plaintiffs could not afford and therefore unlawfully detained them before trial. They brought two class actions under 42 U.S.C. § 1983 against both defendants. The district court dismissed the actions. Affirming, the Ninth Circuit stated: “We lack jurisdiction over these claims because actions against state courts and state court judges in their judicial capacity are barred by Eleventh Amendment immunity.” (The Eleventh Amendment states: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”) (Munoz v. Superior Court of Los Angeles County (9th Cir., Jan. 9, 2024) 2024 WL 89380.)

Action Against Uber After Woman Passenger Was Sexually Assaulted.

The Ninth Circuit Court certified two questions to the California Supreme Court in a case where a woman entered a car displaying an Uber decal that stopped in front of her after her boyfriend had summoned an Uber ride for her. The car she entered was not, in fact, the summoned ride. She was kidnapped and sexually assaulted. The driver had formerly worked for Uber but was no longer employed by Uber. The driver was eventually prosecuted and convicted. The two questions were:

  1. What duty of care, if any, does Uber owe a rideshare passenger who suffers an assault or other crime at the hands of an unauthorized person posing as an Uber driver?
  2. If there is a basis for holding that Uber owed such a duty of care, do the Rowland v. Christian (1968) 69 Cal.2d 108 factors counsel in favor of creating an exception to that duty in a category of cases involving rideshare companies and customers harmed by third-party conduct?

More later. (Doe v. Uber Technologies, Inc. (9th Cir., Jan. 9, 2024), 90 F.4th 946.)

Previously we reported:
Rue Saint-Honoré in the Afternoon, Effect of Rain, a painting by Camille Pissarro.

The agent of painter Camille Pissarro sold the painting in 1900 to Paul Cassirer, a member of a prominent German Jewish family that owned an art gallery and publishing house. Some quarter-century later, Lilly Cassirer inherited the painting and displayed it in her Berlin home. But in 1933, the Nazis came to power. After years of intensifying persecution of German Jews, Lilly decided in 1939 that she had to do anything necessary to escape the country. To obtain an exit visa to England, where her grandson Claude Cassirer had already relocated, she surrendered the painting to the Nazis. Lilly and Claude ended up in the United States. After the war, they could not locate the painting, so in 1958, Lilly agreed to accept compensation from the German Federal Republic for an amount worth about $250,000 in today’s dollars. Over the years, the painting was bought and sold a few times; the last time to an entity controlled by the Kingdom of Spain for over $300 million. It is now part of a collection in a Madrid palace. The underlying question in this case is whether the Cassirer family can get the painting back, but the question before the U. S. Supreme Court involved choice of law. Under the Foreign Sovereign Immunities Act of 1976 (28 U. S. C. §1602 et seq.), a foreign state or instrumentality is amenable in specified circumstances to suit in an American court. Claude brought such a suit to recover the painting. The U.S. Supreme Court held: “The question presented is what choice-of-law rule the court should use to determine the applicable substantive law. The answer is: whatever choice-of-law rule the court would use if the defendant were not a foreign-state actor, but instead a private party. Here, that means applying the forum State’s choice-of-law rule, not a rule deriving from federal common law.” (Cassirer v. Thyssen-Bornemisza Collection Foundation (U.S., Apr. 21, 2022) 596 U.S. 107.) 

The latest:

Once back in the Ninth Circuit, that court concluded that “under the facts of this case, Spain’s governmental interests would be more impaired by the application of California law than would California’s governmental interests be impaired by the application of Spanish law. Thus, applying California’s choice-of-law test, we hold that Spanish law must apply. [¶] Applying Spanish law, TBC [the collection in the museum in Spain] has gained prescriptive title to the Painting pursuant to Article 1955 of the Spanish Civil Code. [Citation.] We therefore affirm the district court’s order which granted judgment in favor of TBC.” (Cassirer v. Thyssen-Bornemisza Collection Foundation (9th Cir., Jan. 9, 2024) 89 F.4th 1226.)

Course and Scope of Employment a Question of Fact.

An employee of the Department of Corrections and Rehabilitation (CDCR) stopped at a gas station on his way to work. He was in uniform, consisting of green pants and a tan or green shirt with his badge and name tag on his chest and CDCR credentials on his shoulder. He carried his off-duty firearm on his person, which was not issued by CDCR. The CDCR employee later told a police officer that when he went inside the convenience store, he observed a black male he deemed to be suspicious. According to the CDCR employee, as the man and another black male drove past his vehicle at the pump, the first man “shouted several derogatory comments before leaving the gas station.” The CDCR employee engaged in a high-speed chase, and his gun was visible to one of the men in the other car. A collision occurred and the two men were severely injured. One later died of his injuries. His mother and the other man sued CDCR. CDCR obtained summary judgment on grounds that its employee, as a matter of law, could not be found to have been acting within the course and scope of his employment at any time during the pursuit. Reversing, the Court of Appeal stated: “Because determining whether an employee has acted within the scope of employment is ‘[o]rdinarily’ a question of fact rather than an issue of law [citation], we must reverse the judgment.” (Adams v. Department of Corrections and Rehabilitation (Cal. App. 4th Dist., Div. 3, Jan. 9, 2024) 98 Cal.App.5th 951.)

Duty of Drug Manufacturer.

Defendant drug manufacturer developed and sold one of the first medications for HIV/AIDS. Class plaintiffs are 24,000 persons who alleged they suffered adverse effects from the drug. Plaintiffs sued, not for product liability, but for negligence, contending the drug company knew a safer alternative drug was available but chose not to put the safer drug on the market because it would not have been profitable to do so. The trial court denied defendant’s motion for summary judgment. Reversing in part and affirming in part, the Court of Appeal stated: “First, we conclude that the legal duty of a manufacturer to exercise reasonable care can, in appropriate circumstances, extend beyond the duty not to market a defective product. Second, in light of that conclusion, we then explain why Rowland [v. Christian (1968) 69 Cal.2d 108] supplies the appropriate framework for evaluating plaintiffs’ negligence claim. Third, applying Rowland, we consider two proposed exceptions to the duty of care. The first exception mirrors [defendant’s] original argument by precluding negligence liability for prescription drugs without proof of a defect. The second exception is narrower in that it would allow plaintiffs to assert a claim for negligence without proof of a defect, but only as to decisions the drug manufacturer made after obtaining the results of phase III clinical trials of the alternative drug. We find that the broader proposed exception is unwarranted, and that the narrower exception is unsupported on the present record, although we do not preclude the possibility that [defendant] could establish it on a more developed record. Finally, we reverse the trial court’s decision insofar as it denied [defendant’s] motion for summary adjudication of plaintiffs’ claim for fraudulent concealment. We conclude that [defendant’s] duty to plaintiffs did not extend to the disclosure of information about [the safer drug].” (Gilead Tenofovir Cases (Cal. App. 1st Dist., Div. 4, Jan. 9, 2024) 98 Cal.App.5th 911.)

Childhood Sexual Assault and Certificate of Merit.

Plaintiff filed a childhood sexual assault action against three Doe defendants. He alleged he was raped as a child by his Boy Scout leader, who he named as the third Doe defendant. The trial court dismissed the complaint with prejudice, finding that plaintiff did not timely file certificates of merit complying with Code of Civil Procedure § 340.1, subdivisions (f) and (g), and that by the time he filed compliant certificates, the statute of limitations had run. On appeal, plaintiff argued that Emergency Rule 9, enacted by the Judicial Council of California in response to the COVID-19 pandemic, tolled the statute of limitations governing his claims such that the limitations period had not yet run when the court dismissed his complaint. He thus contended the dismissal should have been without prejudice so he could refile his complaint and certificates of merit before the limitations period expired. Reversing, the Court of Appeal agreed with the plaintiff that the dismissal should have been without prejudice. (Roe v. Doe 1 (Cal. App. 5th Dist., Jan. 9, 2024) 98 Cal.App.5th 965.)

Medical Provider Permitted to Bring Derivative Claim Under ERISA.

Plaintiff is a surgery center, and defendant is a medical health plan. Plaintiff’s patients executed assignments of benefits forms. Plaintiff sued defendant for failure to fully reimburse the costs of medical services plaintiff provided to its patients under § 502(a) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1132(e)(1); ERISA). The district court dismissed the action for lack of standing because plaintiff is neither a plan participant nor a beneficiary. Reversing, the Ninth Circuit stated: “South Coast’s appeal thus raises two questions. First, does a healthcare provider have derivative authority to enforce ERISA’s protections if it has received a valid assignment of rights? And second, did South Coast’s patients effectuate such an assignment, permitting the medical provider to sue Anthem under ERISA? Longstanding precedent answers ‘yes’ to the first question. And after construing South Coast’s ‘Assignment of Benefits’ form, we answer ‘yes’ to the second. So we conclude that South Coast has authority to enforce ERISA’s protections in federal court, reverse, and remand.” (South Coast Specialty Surgery Center, Inc. v. Blue Cross of California (9th Cir., Jan. 10, 2024) 90 F.4th 953.)

Trial Court Erred in Denying Motion to Compel Underinsured Motorist Claim to Arbitration.

After plaintiff filed a lawsuit against her insurance company for breach of contract and bad faith, defendant insurance company filed a motion to compel arbitration of her underinsured motorist (UIM) claim. The motion was made pursuant to a provision in plaintiff’s automobile policy, which, as mandated by Insurance Code § 11580.2, subdivision(f), requires the parties to arbitrate any dispute over entitlement to recover damages caused by an uninsured or underinsured motorist or the amount of damages. The trial court denied the motion to compel. The Court of Appeal noted that defendant had requested from plaintiff the amount of her expenses that had been paid by Medi-Cal, but that plaintiff never provided the amount. Reversing, the appeals court stated: “In sum, because the parties disagreed over the amount of UIM damages owed to plaintiff, defendant was entitled under section 11580.2, subdivision (f) and the terms of the policy to arbitrate the issue of UIM damages.” (Tornai v. CSAA Insurance Exchange (Cal App. 1st Dist., Div. 2, Jan. 11, 2024) 98 Cal.App.5th 974.)

Injunction Preventing San Francisco from Getting Homeless Individuals Off Its Streets.

San Francisco has an ordinance that punishes sleeping, lodging, or camping on public property. Sometimes homeless individuals are arrested for creating a public nuisance, a misdemeanor (Pen. Code, §§ 370, 372) or disorderly conduct, which is also a misdemeanor (Pen. Code, § 647). The district court granted a preliminary injunction for the Coalition on Homelessness and seven current or formerly homeless San Francisco residents after finding that San Francisco’s sweep operations are unconstitutional. On appeal, San Francisco argued, for the first time, that its enforcement actions do not leave unhoused individuals with nowhere to go because the unhoused are required to relocate to specific encampment sites. The Ninth Circuit found San Francisco waived that argument because it was not raised in the district court and concluded San Francisco had not shown the injunction was improper. (Coalition on Homelessness v. City and County of San Francisco (9th Cir., Jan. 11, 2024) 2024 WL 125340.)

U.S. Supreme Court Granted Certiorari to Another City Enjoined from Enforcing Its Laws Involving Homeless Individuals.

The Ninth Circuit affirmed a class-wide injunction against the City of Grants Pass, Oregon’s enforcement of its ordinance prohibiting camping on public property in 2022. The city petitioned the U.S. Supreme Court with the question: “Does the enforcement of generally applicable laws regulating camping on public property constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment?” The nation’s highest court granted certiorari. (Grants Pass, OR v. Johnson (U.S., Jan. 12, 2024) 2024 WL 133820.)

Previously we reported:
No Trademark Infringement.

Plaintiff, Punchbowl, Inc., is an online party and event planning service. Defendant, AJ Press, owns and operates “Punchbowl News,” a subscription-based online news publication that provides articles, podcasts, and videos about American politics, from a Washington, D.C. insider’s perspective. (Punchbowl is the nickname the Secret Service uses to refer to the U.S. Capitol.) Punchbowl, Inc. claimed that Punchbowl News was misusing its “Punchbowl” trademark. The district court granted summary judgment for defendant. Affirming, the Ninth Circuit held that “Punchbowl News’s use of the term ‘Punchbowl’ [wa]s expressive in nature and not explicitly misleading as to its source.” (Punchbowl, Inc. v. AJ Press, LLC (9th Cir., Nov. 14, 2022) 52 F.4th 1091.)

The latest:

The week after the above opinion was filed, the U.S. Supreme Court granted certiorari in another trademark case. At that point, the Ninth Circuit stayed the mandate in its first Punchbowl opinion. Prior to Jack Daniel’s Properties, Inc. v. VIP Products LLC (2023) 599 U.S. 140, in a trademark infringement dispute, the Ninth Circuit applied the “Rogers test,” based on Rogers v. Grimaldi (2d Cir. 1989) 875 F.2d 994. After Jack Daniel’s, the Ninth Circuit ordered the parties to file supplemental briefs and reviewed the matter de novo. The court remanded the matter for the lower court to proceed on a likelihood-of-confusion analysis under the Lanham Act (15 U.S.C. § 1051 et seq.). (Punchbowl, Inc. v. AJ Press, LLC (9th Cir., Jan. 12, 2024) 90 F.4th 1022.)

State Court Actions Against Jet Ski Owner Following Fatal Accident Enjoined.

At a corporate retreat in South Lake Tahoe, a worker was thrown off a jet ski owned by defendant; he drowned. Enacted in 1851, the Shipowner’s Limitation of Liability Act (46 U.S.C. § 30501 et seq.; Limitations Act) allows the owner of a vessel to limit its liability for accidents and to enjoin lawsuits that threaten its right to do so. When a vessel owner files a lawsuit under the Limitation Act and posts security for the limitation amount, all claims and proceedings against the owner related to the matter in question shall cease. After the fatal accident involving defendant’s rented jet ski, and defendant’s posting a security of the value of the jet ski, $5,000, the district court granted defendant an injunction against a state-court lawsuit. Affirming in part and reversing in part, the Ninth Circuit stated: “We hold that the district court had the authority to grant an injunction but that the injunction it imposed is overly broad. We vacate and remand with instructions to narrow the injunction so that it bars only claims against the owner, not claims against other parties.” (In re Williams Sports Rentals, Inc. (9th Cir., Jan. 16, 2024) 90 F.4th 1032.)

Petition to Compel Arbitration in Employment Case Denied.

The trial court denied employer/defendant’s petition to compel arbitration and declined to sever the arbitration agreement. The appeals court affirmed, stating: “We conclude the arbitration agreement was a contract of adhesion, and the Association does not argue otherwise. It is undisputed that Hasty’s consent to the arbitration agreement was imposed as a condition of employment. [¶] . . . [¶] . . . [T]he arbitration agreement is ‘written in an extremely small font’ with ‘visually impenetrable’  paragraphs filled with statutory references and legal jargon.’ [¶] . . . [¶] . . . We agree with the trial court that the term ‘this document’ (capitalization omitted) in the signature statement—’BY SIGNING THIS DOCUMENT ELECTRONICALLY, I ACKNOWLEDGE THAT I RECEIVED, READ, UNDERSTAND AND ACCEPT THE PROVISIONS OF THIS DOCUMENT’—is ambiguous. As the trial court explained: ‘Neither the [i]nstructions nor the [s]ignature [s]tatement explicitly refer to the [a]rbitration [a]greement. Instead, the [i]nstructions refer to the ‘Consent to Electronic Signatures on Employment Records.’ And, the [s]ignature [s]tatement does not define what ‘this document’ actually is.’ [¶] . . . [¶] Like the Murrey [v. Superior Court (2023) 87 Cal.App.5th 1223,] court, we conclude the confidentiality clause in the arbitration agreement benefits only the Association with respect to harassment, retaliation, and discrimination claims, such as the claims here, and is thus substantively unconscionable. [¶] Finally, the arbitration agreement is further one-sided because it requires the parties to bring their claims ‘in an individual capacity,’ not ‘in a private attorney general capacity,’ and prohibits class, representative, or private attorney general proceedings. These requirements can fairly be read to limit only the employee’s rights.” (Hasty v. American Automobile Association (Cal. App. 3rd Dist., Jan. 16, 2024) 98 Cal.App.5th 1041.)

Primary Assumption of the Risk.

Plaintiff and defendant were surfing when plaintiff caught a wave. Defendant “appeared out of nowhere” and “dropped in” on the wave without looking in plaintiff’s direction. This forced plaintiff to make a fast turn correction. As plaintiff ducked into the wave, defendant’s board propelled backward and struck plaintiff’s back and torso. Plaintiff was injured and sued defendant for negligence. The trial court granted defendant’s motion for summary judgment. Affirming, the Court of Appeal stated: “[W]e hold the doctrine of primary assumption of the risk bars liability for injuries caused by a negligent surfer to a fellow surfer because those injuries were caused by risks inherent in the sport of surfing.” (Olson v. Saville (Cal. App. 2nd Dist., Div. 6, Jan. 17, 2024) 98 Cal.App.5th 1066.)

Video Game Producer’s Arbitration Agreement with a Minor Is Not Worth the Paper It’s Written On.

The superior court denied defendant’s petition to arbitrate a dispute with plaintiff. Plaintiff is a minor who sued defendant, alleging defendant deceptively induced players of its video game to purchase digital, game-specific currency in order “to purchase cosmetic items, characters, lootboxes, and other items within the game’s virtual world.” Defendant moved the superior court to compel the matter to arbitration, but plaintiff exercised his power under Family Code § 6710 to disaffirm all his contracts with defendant. The trial court denied the motion. On appeal, defendant contended the arbitration agreement contained a delegation clause and plaintiff did not challenge the validity of the clause below, so an arbitrator rather than the court should decide issues of arbitrability. Affirming, the Court of Appeal stated that California law “shields minors from their lack of judgment and experience and confers upon them the right to avoid their contracts in order that they may be protected against their own improvidence and the designs and machinations of other people, thus discouraging adults from contracting with them.” (J.R. v. Electronic Arts Inc. (Cal. App. 4th Dist., Div. 2, Jan. 17, 2024) 98 Cal.App.5th 1107.)

Previously we reported:
Public Interest Exemption to Anti-SLAPP Statute.

Defendant provides an online directory of professionals and their employment information. Clicking on a link in a search engine produces a redacted “teaser profile,” offering the individual’s name, employer, and job title. On the same page are links inviting the viewer to sign up for a trial subscription or subscribe to view the full profile. Plaintiff objected to defendant providing such a “teaser profile” of her information along with subscription links. Her complaint asserted defendant did not obtain her permission or compensate her, and defendant’s directory was using her name and likeness to promote its product in violation of California’s Right of Publicity statute (Civ. Code, § 3344). The district court denied defendant’s motion to strike the complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16). Affirming, the Ninth Circuit concluded that the “complaint f[e]ll[] within the public-interest exemption to the anti-SLAPP law. . . . [The] complaint is exempted from California’s anti-SLAPP law as a suit ‘brought solely in the public interest’ under § 425.17(b).” (Martinez v. ZoomInfo Technologies, Inc. (9th Cir., Sept. 21, 2023) 82 F.4th 785.)

The latest:

The Ninth Circuit vacated the opinion and will hear the matter en banc. (Martinez v. ZoomInfo Technologies, Inc. (9th Cir., Jan. 18, 2024) 90 F.4th 1042.)

Previously we reported:
Trial Court Erred in Dismissing PAGA Case Due to Unmanageability.

The trial court dismissed a Private Attorneys General Act (Lab. Code § 2698 et seq.; PAGA) because it was unmanageable. In Wesson v. Staples the Office Superstore, LLC (2021) 68 Cal.App.5th 746, a different appellate court concluded courts have inherent authority to strike unmanageable PAGA claims. In this case, the Court of Appeal reversed, disagreeing with the holding in Wesson, and stating: “PAGA claims are unlike conventional civil suits and, in particular, are not class actions. Allowing dismissal of unmanageable PAGA claims would effectively graft a class action requirement onto PAGA claims, undermining a core principle of these authorities. It would also interfere with PAGA’s purpose as a law enforcement mechanism by placing an extra hurdle on PAGA plaintiffs that is not placed on the state. That said, courts are not powerless when facing unwieldy PAGA claims. Courts may still, where appropriate and within reason, limit the amount of evidence PAGA plaintiffs may introduce at trial to prove alleged violations to other unrepresented employees. If plaintiffs are unable to show widespread violations in an efficient and reasonable manner, that will just reduce the amount of penalties awarded rather than lead to dismissal.” (Estrada v. Royalty Carpet Mills, Inc. (Cal. App. 4th Dist., Div. 3, Mar. 23, 2022) 76 Cal.App.5th 685.) 


The California Supreme Court granted review. (Estrada v. Royalty Carpet Mills, Inc. (Cal., June 22, 2022) 511 P.3d 191.)

The latest: 

The California Supreme Court upheld the Estrada Court of Appeal’s holding, stating: “We now conclude that trial courts lack inherent authority to strike PAGA claims on manageability grounds. In reaching this conclusion, we emphasize that trial courts do not generally possess a broad inherent authority to dismiss claims. Nor is it appropriate for trial courts to strike PAGA claims by employing class action manageability requirements. And, while trial courts may use a vast variety of tools to efficiently manage PAGA claims, given the structure and purpose of PAGA, striking such claims due to manageability concerns — even if those claims are complex or time-intensive — is not among the tools trial courts possess. Accordingly, we affirm the Court of Appeal’s judgment as that court reached the same conclusion we reach here.” (Estrada v. Royalty Carpet Mills, Inc. (Cal., Jan. 18, 2024) 541 P.3d 466.)

Some Plaintiffs in Subsidized Housing May Sue Under Unfair Competition Law.

Two groups of plaintiffs, each living in federally subsidized housing, sued their housing owner/manager under the unfair competition law (Bus. & Prof. Code, § 17200 et seq.; UCL), for attempting to terminate their tenancy with only three-day termination notices. One group’s housing was subsidized under the HOME Investment Partnerships Program (42 U.S.C. § 12701 et seq.; HOME) and the other under the United States Housing Act of 1937 (42 U.S.C. § 1437f; Section 8). Under HOME, defendant was required to give 30 days’ notice before terminating a tenancy, but there was no such requirement under Section 8. The trial court granted summary judgment for defendant and against both groups of plaintiffs, ruling that the HOME plaintiffs did not suffer an injury in fact—as is required to confer standing under the UCL—because they remained in possession of their apartments for more than 30 days after receiving the three-day termination notices. Reversing in part and affirming in part, the Court of Appeal stated: “[T]he HOME plaintiffs have shown that they were prematurely deprived of property rights and subjected to imminent legal peril when [defendant] provided legally deficient termination notices. The HOME plaintiffs faced these consequences even as they remained in possession of their apartments for more than 30 days. We hold that the HOME plaintiffs’ loss of property rights and exposure to legal peril amount to an injury in fact sufficient to confer standing under the UCL. [¶] . . .  The trial court ruled that [defendant] was not required to provide 30 days’ notice before terminating a Section 8 tenancy. The Section 8 plaintiffs fail[ed] to demonstrate that this was error.” (Campbell v. FPI Management, Inc. (Cal. App. 2nd Dist., Div. 7, Jan. 18, 2024) 317 Cal.Rptr.3d 391.)

Federal District Court Abused Its Discretion in Holding Plaintiffs’ Fourth Amendment Rights Were Not Violated in Search of Safety Deposit Boxes.

Pursuant to a search warrant, the U.S. government conducted an inventory search at US Private Vaults [USPV], a company being investigated for various criminal activities such as money laundering. After the search, plaintiffs demanded return of their property, and litigation was required before the government did return their property to them. However, plaintiffs continued to press for equitable relief in the form of destruction of records pertaining to them. A district court entered judgment for the government, holding that plaintiffs’ Fourth Amendment rights were not violated because the inventory was not pretextual. The Ninth Circuit reversed, stating the lower court abused its discretion. (Snitko v. United States (9th Cir., Jan. 23, 2024) 90 F.4th 1250.)

More Attention Needed to Timing of Payment of Arbitration Fees.

December 2, 2022—JAMS, Inc. issued an email invoice for the initial filing fee for the arbitration of this matter.

January 4, 2023—Defendant paid the fee. 

Defendant conceded that its payment would normally have been due on January 1, 2023—30 calendar days after December 2, 2022—but argued that Code of Civil Procedure §§ 12 and 1010.6 operated in tandem to extend the due date until January 5. (§ 12 states: “The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded,”  and § 1010.6 states that when electronic service is used, for some circumstances, the time may be extended by two days.) The trial court granted defendant’s petition to compel arbitration. Issuing a writ of mandate, the Court of Appeal stated: “The rules are designed to encourage drafters of arbitration agreements to engage in arbitration promptly.” (Suarez v. Superior Court of San Diego County, (Cal. App. 4th Dist., Div. 1, Jan. 24, 2024.) 2024 WL 256450.)

Previously we reported:
Plaintiff May Bring Civil Rights Action After Prosecutor Introduced His Un-Mirandized Confession.

Plaintiff, a native of Cameroon, transported patients to the MRI section of a hospital. When a patient accused plaintiff of sexual assault, the police were called. A deputy sheriff took plaintiff into a room. According to plaintiff, he refused to confess after 35 to 40 minutes of questioning. The deputy then falsely said that the assault had been captured on video so plaintiff might as well admit to it, but plaintiff still did not confess and asked for a lawyer. When the deputy ignored his request, plaintiff tried to leave the room. At this point, the deputy stepped on his toes, put his hand on his gun, called plaintiff the N-word, and said, “I’m about to put your black ass where it belongs, about to hand you over to deportation services, and you and your entire family will be rounded up and sent back to the jungle . . . . Trust me, I have the power to do it.” Plaintiff then confessed. According to the deputy, when he arrived, he asked plaintiff what had happened with the patient, and plaintiff said, “I made a mistake.” After they entered the MRI reading room, the deputy handed plaintiff a sheet of paper and said, “Can you write what happened while I get my sergeant and we can ask you a couple of questions[?]” The deputy claimed that plaintiff then wrote the confession without further prompting. During the criminal trial, the prosecution introduced plaintiff’s written confession as evidence of his guilt. The jury returned a verdict of not guilty. After his acquittal, plaintiff filed this action under 42 U.S.C. § 1983 seeking damages for alleged violations of his constitutional rights, contending that his right against self-incrimination was violated. The first jury found in favor of the deputy, but the district court ordered a new trial based on instructional error. The second jury also found in favor of the deputy. On appeal, plaintiff argued that the second jury was also erroneously instructed. Reversing and remanding for a third trial, the Ninth Circuit explained that “the jury must be properly instructed that the introduction of a defendant’s un-Mirandized statement at his criminal trial during the prosecution’s case in chief is alone sufficient to establish a Fifth Amendment violation and give rise to a § 1983 claim for damages.” (Tekoh v. County of Los Angeles (9th Cir., Jan. 15, 2021) 985 F.3d 713.)


The U.S. Supreme Court held: “In sum, a violation of Miranda does not necessarily constitute a violation of the Constitution, and therefore such a violation does not constitute ‘the deprivation of [a] right . . . secured by the Constitution. . . .’ This conclusion does not necessarily dictate reversal because a §1983 claim may also be based on ‘the deprivation of any rights, privileges, or immunities secured by the . . . laws. . . .’ Because a violation of Miranda is not itself a violation of the Fifth Amendment, and because we see no justification for expanding Miranda to confer a right to sue under §1983, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.” (Vega v. Tekoh (U.S., June 23, 2022) 597 U.S. 134.)

The latest: 

A panel of the Ninth Circuit denied a petition for rehearing and a petition for rehearing en banc. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. (Tekoh v. County of Los Angeles (9th Cir., Jan. 25, 2024) 2024 WL 275239.)

Capital Punishment.

A death row inmate in Alabama petitioned the U.S. Supreme Court for a stay of his execution. The Supreme Court denied both the application for stay and the writ of certiorari. Smith was to be the first person in the country to be executed by nitrogen hypoxia, an untested method. He was to be strapped to a gurney and have a mask placed on his face. Justice Sotomayor wrote in her dissent: “Once the nitrogen is flowing into the mask, his executioners will not intervene and will not remove the mask, even if Smith vomits into it and chokes on his own vomit. [¶] Smith is a surprising candidate to test this novel method. Alabama tried and failed to execute him before. In November 2022, Alabama botched Smith’s execution by lethalinjection. It was Alabama’s third failed execution in a row in five.” Justice Kagan’s dissent, joined by Justice Jackson states: “I would grant Smith’s petition for a writ of certiorari to consider whether, in those exceptional circumstances, the extremely demanding standard this Court established in Glossip v. Gross, 576 U. S. 863 (2015), properly applies.” That night, Kenneth Eugene Smith was executed. (Smith v. Hamm (U.S., Jan. 25, 2024) 144 S. Ct. 414.)

Anti-SLAPP Motions and California Rules of Court, Rule 3.1322.

In a whistle blower case, the defendant county filed a special motion to strike under the anti-SLAPP statute (Code Civ. Proc.,  § 425.16). One of the reasons the trial court denied the motion was that the county did not comply with California Rules of Court, rule 3.1322 which requires that a motion to strike “must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.” The Court of Appeal held: “[W]e hold that the County was not required to follow rule 3.1322 when bringing its special motion to strike under section 425.16.” (Miszkewycz v. County of Placer (Cal. App. 3rd Dist., Jan. 25, 2024) 317 Cal.Rptr.3d 465.)

Developmentally Disabled Person Injured Employee of Facility.

 In the Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4500 et seq.), the state has undertaken the duty to provide developmentally disabled persons with appropriately tailored services and support. To discharge this duty, the Department of Developmental Services uses a network of private, nonprofit entities called “regional centers.” Here, the facility where the regional center placed a patient informed the regional center it could no longer provide the level of care the person required. While the regional center was  lining up a different facility, the person, named J.C., attacked, and seriously injured the facility’s administrator (plaintiff). J.C.—who is around 5 feet 8 inches tall and weighs 265 pounds—picked up plaintiff and threw him backwards against an overhead cabinet. Plaintiff’s head struck the cabinet. He suffered a concussion and lost a tooth. Plaintiff sued the regional center for negligence and failure to satisfy its mandatory duties. Granting the regional center’s motion for summary judgment, the trial court reasoned the regional center only owed duties to J.C. and not plaintiff, and that plaintiff assumed the risk of such injuries when he took the job. Affirming dismissal of the action, the Court of Appeal stated: “His lawsuit presents the following question: Does a regional center have a duty to protect the employees of a residential facility that accepted a developmentally disabled person as a resident when the regional center does not immediately relocate that person as requested by the facility? We conclude that the answer is ‘no,’ and accordingly affirm the trial court’s grant of summary judgment for the regional center.” (Shalghoun v. North Los Angeles County Regional Center, Inc. (Cal. App. 2nd Dist., Div. 2, Jan. 25, 2024) 2024 WL 277313.)

Disclosure of Confidential Police Report.

Plaintiff started a romantic relationship with a California police officer. He physically and sexually abused her for several months. Another police officer disclosed plaintiff’s confidential domestic violence report to the abuser. Plaintiff sued the officer who made the disclosure under 42 U.S.C. § 1983. A district  court granted qualified immunity to the police officer who disclosed the report to plaintiff’s abuser. Affirming, the Ninth Circuit stated: “We hold that Officer High violated Ms. Martinez’s due process rights under the state-created danger doctrine, but that right was not yet ‘clearly established’ at the time of the violation.” (Martinez v. High (9th Cir., Jan. 26, 2024) 2024 WL 295939.)

No Arbitration When Public Injunctive Relief Sought.

Plaintiff’s complaint sought injunctive relief and the trial court denied defendant’s petition to order the matter into arbitration, citing McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, which held that a predispute arbitration provision that waives a plaintiff’s right to seek public injunctive relief in any forum is “contrary to California public policy and is thus unenforceable under California law.” Affirming, the Court of Appeal stated: “Concluding that Ramsey’s complaint seeks public injunctive relief, and that McGill is not preempted, we affirm the trial court’s order.” (Ramsey v. Comcast Cable Communications, LLC (6th Dist., Jan. 29, 2024) 2023 WL 9468196.)

Trial Court Erred in Declaring Deed Void.

Plaintiff alleged her daughter told her to sign some documents last year or else her property taxes would skyrocket. She said she later learned that the documents did not protect her from rising property taxes, but instead transferred the property into her daughter’s name. The trial court issued elder abuse restraining orders (Welf. & Inst. Code, § 15657.03). The court also declared the deed transferring the property to be void ab initio. Affirming in part and reversing in part, the Court of Appeal stated: “We conclude sufficient evidence supports the restraining orders, but agree the court exceeded its statutory authority in issuing the subsequent order declaring the deed void. As we explain, section 15657.03 establishes a summary and initially provisional remedy to secure the immediate protection of elders from further abuse. The statute expressly enumerates the kinds of restraining orders the court may issue, . . . [¶] . . . [¶] None of these enumerated—and carefully defined—restraining orders embrace an order declaring a document ‘void ab initio.’” (Newman v. Casey (Cal. App. 1st Dist., Div. 1, Jan. 30, 2024) 2024 WL 335318.)

Insured May Video Record Insurance Examination Under Oath.

Residential property insurance policies commonly require an insured to submit to an examination under oath (EUO) if requested by the insurer to resolve a claim. This appeal concerns an issue of first impression: Whether Insurance Code § 2071.1, subdivision (a)(4), provides that an insured subject to an EUO may video record the examination proceedings in their entirety. The Court of Appeal held: “After considering the statute’s plain language, statutory framework, and legislative history, we conclude the provision does confer such a right.” (Myasnyankin v. Nationwide Mutual Insurance Company (Cal. App. 1st Dist., Div. 5, Jan. 30, 2024) 2024 WL 340287.)

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