Litigation
Litigation Update: February 2025
A monthly publication of the Litigation Section of the California Lawyers Association.
- Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
- Managing Editor, Julia C. Shear Kushner
- Editors, Dean Bochner, Colin P. Cronin, Austin Evans, Jenn French, Jennifer Hansen, Ryan Wu
Physicians Who Remotely View Test Results on a “Stat” Basis Are Part of the Emergency Department.
Defendant was the on-call radiologist who, on a “stat” basis, remotely read x-rays of a three-year-old who was being seen in an emergency room. Soon after being discharged, the child had severe physical problems due to a bowel obstruction, which problems required several surgeries and loss of much of his bowel. His mother brought a medical malpractice action against the radiologist. The trial court granted summary judgment for the defendant radiologist. The Court of Appeal held: “To grant physicians and surgeons in general acute care hospital emergency departments a measure of protection from malpractice claims—and thereby to encourage the provision of such emergency medical care—our Legislature enacted what is now Health and Safety Code section 1799.110.1 []The statute accomplishes its purpose in two ways—namely, (1) by modifying the standard of care applicable in malpractice cases to account for the “unique challenges and demands of an emergency room” [], and (2) by increasing the qualifications an expert must possess before testifying as to whether that altered standard of care was violated in any given case[]. This case presents the question: Does section 1799.110’s stricter qualifications requirement for expert witnesses apply when the physician being sued was an on-call radiologist who remotely reviewed X-ray and ultrasound images for an emergency department patient on a ‘stat’ basis as requested by the emergency department? We hold that it does.” (Charlie L. v. Kangavari (Cal. App. 2nd Dist., Div. 2., Jan. 2, 2025) 107 Cal.App.5th 1117.)
Not Taking Responsibility.
A man parked his car in a downtown area and paid for an hour and nineteen minutes through a mobile app and then left the car on the street for seven days. Parking enforcement issued multiple citations. After five days, a warning was left that if the car wasn’t moved, it would be towed. Two days later, it was towed. The man sued the city, alleging that its procedures for notifying him that his car would be towed were deficient under the Fourteenth Amendment’s due process clause. The Ninth Circuit held there was no violation of the Fourteenth Amendment and noted: “An individual with an interest in preserving uninterrupted access to his car would revisit the car after his parking session ended or his meter ran, and, seeing such a notice, would either move the vehicle or pay for additional parking time.” (Grimm v. City of Portland (9th Cir., Jan. 3, 2025) 125 F.4th 920.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/03/23-35235.pdf
Notice Required that Oral Conversations Are Being Recorded.
Project Veritas is a nonprofit media organization that engages almost exclusively in undercover journalism. It employs both open and secret audiovisual recording to investigate matters of public concern, sometimes—but not always—in areas open to the public. Whether recording openly or surreptitiously, Project Veritas does not expressly inform individuals that their conversations are being recorded. According to Project Veritas, an announcement that a conversation is being recorded causes individuals to refuse to talk or to distort their story, thereby compromising the quality of Project Veritas’s journalism. Section 165.540(1)(c) of the Oregon Revised Statutes requires that notice be given before oral conversations may be recorded. Project Veritas contended Oregon’s statute violates the First Amendment. The district court dismissed the action. The Ninth Circuit affirmed, stating: “Because Oregon’s statute does not discriminate on the basis of viewpoint or restrict discussion of an entire topic, we conclude it is content neutral, and that it survives intermediate scrutiny. Because Project Veritas fails to show that any unconstitutional applications of the statute substantially outweigh its constitutional applications, Project Veritas cannot establish facial invalidity.” (Project Veritas v. Schmidt (9th Cir., Jan. 7, 2025) 125 F.4th 929.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/07/22-35271.pdf
New Notice of Trustee’s Sale Cured Previous Violation of Civil Code § 2923.6.
Plaintiff is a conservator who sued defendant for violating the Homeowner’s Bill of Rights (Civ. Code, § 2923.4 et seq.; HBOR) and California’s Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.; UCL) The trial court sustained defendant’s demurrer without leave to amend after finding defendant had not violated the law because it recorded a new notice of trustee’s sale and sold the property more than a year after it denied plaintiff’s loan modification application and appeal of that denial. Affirming, the Court of Appeal stated: “We agree with the trial court that the face of the complaint shows SPS’s new notice of trustee’s sale cured any previous violation of former section 2923.6 and made the violation immaterial in any event.” (Reese v. Select Portfolio Servicing, Inc. (Cal. App. 1st Dist., Dec. 19, 2024) 107 Cal.App.5th 1179.)
Huge Plaintiff’s Verdict Reversed Because Trial Court Refused to Instruct on Privette Doctrine.
When an employee attempted to remove the lid of a fuel filter tank, which had recently had its annual maintenance, done outside the prescribed protocol, the system was still under extreme pressure. The employee was killed in the resulting explosion. His family pursued this wrongful death action. A jury returned a verdict of $150 million. On appeal, defendant contended it was shielded from liability because, as a partial indirect owner of the plant, it presumptively delegated safety responsibility to the management company that operated the plant. The Court of Appeal reversed and remanded for a new trial because the trial court refused defendant’s jury instruction on Privette v. Superior Court (1993) 5 Cal.4th 689. (Collins v. Diamond Generating Corporation (Cal. App. 4th Dist., Div. 3, Dec. 11, 2024) 107 Cal.App.5th 1162.)
Invoking the Doctrine of Laches Requires a Finding of Prejudice.
In a dissolution case, one former spouse requested orders to enforce provisions of a 2009 marital settlement agreement, and the other spouse asserted laches as a defense. The trial court held the request, as well as attorney fees and costs, were barred by laches. Reversing, the Court of Appeal stated: “[I]nvoking the doctrine of laches requires a finding of prejudice, and here the court’s conclusion that Wife’s delay prejudiced Husband lacks substantial evidentiary support.” (In re Marriage of Goldman (Cal. App. 4th Dist., Div. 1, Jan. 10, 2025) 107 Cal.App.5th 1258.)
Assumption of the Risk Applies to Disease Resulting from Playing Football.
Decedent, who died at the age of 49, played football for the University of Southern California (USC) from 1988 to 1992. He was one of twelve linebackers on USC’s depth chart, and the fifth of those linebackers to die before the age of 50. Junior Seau, the most famous of the five played professional football for many years after graduating from USC and committed suicide in 2012. The National Institutes of Health later confirmed that Seau had chronic traumatic encephalopathy (CTE), a neurodegenerative disease. Boston University’s CTE Center examined decedent’s brain after his death and determined he had CTE. Decedent’s widow sued the National Collegiate Athletic Association (the NCAA), but not USC. The NCAA asserted an assumption of the risk defense, and a jury found for the NCAA. Affirming, the Court of Appeal held the assumption of risk doctrine applied, stating: “Knowing that a skier suffered a broken leg from a fall while skiing is not sufficient to determine whether the doctrine applies. If the skier broke his or her leg in a fall while skiing moguls, the injury was caused by a risk inherent in the sport and the doctrine applies; if the skier broke his or her leg due to a poorly maintained towrope, the doctrine does not apply. Thus, it is not the specific injury which is determinative, it is the nature of the conduct or condition which caused it. . . . Here, it is undisputed that the conduct which causes CTE is repeated head hits, and head hits are an inherent risk of college football.” (Gee v. National Collegiate Athletic Association (Cal. App. 2nd Dist., Div. 8, Jan. 10, 2025) 107 Cal.App.5th 1233.)
No Time For Security Personnel to Prevent Assault in Football Stadium Parking Lot.
While in the parking lot of a football stadium in 2018, decedent was severely injured after another fan punched him twice in the face. Decedent was rendered unconscious, sustained a brain injury, and never worked again. He died in March 2021 after suffering a severe asthma attack, which his family claimed would not have been fatal but for his prior head trauma. The attacker was charged with a felony, pleaded no contest to assault by means of force likely to produce great bodily injury, and was sentenced to one year in county jail. Decedent’s family filed an action against the stadium, alleging that defendants were negligent by failing to prevent the assault and by failing to provide reasonably adequate security. The trial court granted defendants’ motions for summary judgment. Affirming, the Court of Appeal concluded there was an absence of causation, stating: “There were at least 923 security personnel working the 49ers game on October 7, 2018, attended by 53,582 fans . . . including 64 off-duty peace officers . . . . The entire encounter occurred within approximately nine seconds, and only four seconds elapsed between Gonzales’s first punch and second punch. The incident happened quickly and there was no chance for anyone to intervene.” (Stokes v. Forty Niners Stadium Management Co., LLC (Cal. App. 6th Dist., Jan. 10, 2025) 107 Cal.App.5th 1199.)
By Accepting Rent After Lease Expired, Landlord Consented to Month-to-Month Tenancy.
Defendant, a commercial tenant, appealed from an adverse judgment and award of attorney fees in an unlawful detainer action. Plaintiff commercial landlord issued a 30-day notice to terminate his tenancy. Several days after the notice expired, defendant tendered a rent check, which plaintiff deposited that same day and never refunded. The next day, plaintiff filed an unlawful detainer action against defendant, arguing that he was unlawfully holding over. While the action was pending, defendant tendered payment of rent and common area maintenance charges to plaintiff pursuant to invoices sent by her management company for three additional months, which plaintiff deposited and never refunded. The trial court held that despite plaintiff’s acceptance of these payments, she did not consent to defendant’s continued possession based on the terms of their lease. In reaching this holding, the trial court concluded that Civil Code § 1945—which establishes a presumption of renewal whenever a landlord accepts rent from a tenant after the expiration of a lease—did not apply. Reversing, the Court of Appeal stated: “Applying de novo review, we find that section 1945 does apply because [plaintiff landlord] accepted rent from [defendant tenant] multiple times after his lease had expired. We further find that, in light of this presumption, [plaintiff landlord] consented to a month-to-month tenancy based on the undisputed facts and the terms of the lease.” (Baca v. Kuang (Cal. App. 1st Dist., Div. 5, Jan. 13, 2025) 328 Cal.Rptr.3d 854.)
Lying on H-1B Visa Applications Is Visa Fraud.
To obtain an H-1B visa, an employer first must file a Labor Condition Application with the Department of Labor on behalf of the foreign worker. If the application is approved, the employer submits a Form I-129 Petition for a Nonimmigrant Worker with the U.S. Citizenship and Immigration Services (USCIS). The I-129 petition also requires certain information about the foreign worker and the employer, such as where the foreign worker will work and the worker’s proposed wages. Here, the government alleged that defendants falsely stated that H-1B applicants would be working on internal projects on site, when in fact they would be contracted out to other companies. In the district court, defendants asserted that these allegedly false statements could not be materially false statements because it was unlawful for the government to ask for such information. The district court accepted defendants’ argument and granted their motion to dismiss the indictment. Reversing, the Ninth Circuit stated: “[U]nder longstanding principles, the government may protect itself against ‘those who would swindle it’ even if the government demanded answers to questions it had no right asking. . . . So lying on H-1B visa applications remains visa fraud even when the lies were given in response to questions the government can’t legally ask—as long as the misrepresentations could have influenced USCIS at the time they were made.” (United States v. Patnaik (9th Cir., Jan. 14, 2025) 125 F.4th 1223.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/14/23-10043.pdf
No More Talkative Drivers.
The Legislature has charged the Department of Motor Vehicles (DMV) with regulating the use of driverless or autonomous vehicles (AVs) on California roadways. Thus, under Vehicle Code § 38750, subdivision (c), any manufacturer seeking to operate an AV on the public roads must apply to the DMV for approval to do so. Under the Public Utilities Code, the Public Utilities Commission (PUC) has jurisdiction regulating transportation for hire. In this original action for writ review, the City and County of San Francisco challenged the PUC’s decision to issue a permit to Waymo for fared passenger service in San Francisco and parts of San Mateo County. Denying the relief sought, the Court of Appeal stated: “By law, our review of [Public Utilities] Commission decisions is limited, and there is simply no basis on the record here to conclude the Commission acted outside the confines of its authority or abused its discretion in issuing the phase I driverless deployment permit.” (City and County of San Francisco v. Public Utilities Commission (Cal. App. 1st Dist., Div. 1, Jan. 14, 2025) 108 Cal.App.5th 22.)
Regulations Govern Medical Payments to Physician Providers.
A surgeon and a medical corporation sued defendant health insurance company for quantum meruit, breach of implied contract, bad faith, and other causes of action. Plaintiffs contended they supplied medical care to covered patients but defendant paid them less than their usual and customary rates. The trial court sustained defendant’s demurrer without leave to amend. Affirming, the Appellate Division of the Superior Court stated: “Plaintiff has not alleged any facts that remove this dispute from the confines of the [California Department of Insurance] regulatory regime and subject it to the Knox-Keene Act and/or [the Department of Managed Health Care] regulatory regime.” (Nissanoff v. UnitedHealthCare Insurance Company (L.A. Super Ct. App. Div., Jan. 14, 2025) 108 Cal.App.5th Supp. 1.)
The Removal Game.
If a complaint filed in state court asserts federal-law claims, the defendant may remove the case to federal court. (28 U. S. C. §1441(a).) And if the complaint also asserts state-law claims arising out of the same facts, the federal court may adjudicate those claims too in the exercise of what is called supplemental jurisdiction. This case presented a further question: what happens if, after removal, the plaintiff amends the complaint to delete all the federal-law claims, leaving nothing but state-law claims behind? May the federal court still adjudicate the now purely state-law suit? The U.S. Supreme Court ruled: “We hold that it may not. When an amendment excises the federal-law claims that enabled removal, the federal court loses its supplemental jurisdiction over the related state-law claims. The case must therefore return to state court.” (Royal Canin U.S.A., Inc. v. Wullschleger (U.S., Jan. 15, 2025) 604 U.S. 22.)
Standard of Proof to Show an Employee Is Exempt from Minimum Wage and Overtime Compensation.
E.M.D. Sales, Inc. (EMD) distributes international food products and employs sales representatives who manage inventory and take orders at grocery stores that stock EMD’s products. Several sales representatives sued EMD in federal court, alleging that EMD violated the Fair Labor Standards Act of 1938 by failing to pay them overtime. (29 U. S. C. §206(a)(1).) EMD did not deny that the employees worked more than 40 hours per week without receiving overtime pay. But it argued that the employees fell within the act’s “outside salesman” exemption. Following a bench trial, the district court concluded that EMD failed to prove by clear and convincing evidence that the employees qualified as outside salesmen. The dispute concerned the standard of proof that an employer must satisfy to show that an employee is exempt. The U.S. Supreme Court reversed, stating: “We hold that the preponderance-of-the-evidence standard applies when an employer seeks to show that an employee is exempt from the minimum-wage and overtime pay provisions of the Fair Labor Standards Act.” (E.M.D. Sales, Inc. v. Carrera (U.S., Jan. 15, 2025) 145 S.Ct. 34.)
Seventy-One Years After Brown v. Board of Education.
In the 1950s, the Tucson Unified School District had a dual school system for Black and non-Black students. Class action lawsuits brought on behalf of African American and Latino students resulted in a 1978 settlement agreement and desegregation decree. Since that time, the district court has directed the school district to undertake numerous efforts to remedy the effects of its past discrimination and to bring the school district into unitary status. Agreeing with the district court, the Ninth Circuit held: “Over decades of federal supervision, the District has not always embraced its obligation to remedy the effects of its past de jure segregation. But, considering the extensive record now before us, we conclude the district court properly found that the District has complied in good faith with the requirements of the [unitary status plan] and has eliminated the vestiges of its past discrimination to the extent practicable. Thus, the district court’s finding that the District has achieved unitary status and federal supervision is no longer warranted is AFFIRMED.” (Mendoza v. Tucson Unified School District (9th Cir., Jan. 15, 2025) 125 F.4th 1262.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/15/22-16478.pdf
Sufficient Facts to Exercise Specific Jurisdiction Over German Car Manufacturer.
Plaintiff, a minor, suffered severe injuries after he was crushed against the garage wall when an Audi Q7, driven by his mother, surged forward after his mother put the vehicle in park and got out while it was running. The trial court determined that defendant Audi AG, the German company that manufactures Audi vehicles in Germany and uses an American company to import, market, and sell those vehicles to authorized Audi dealerships across the United States, was not subject to personal jurisdiction in California. Reversing, the Court of Appeal held there were sufficient facts to justify the trial court’s exercise of specific jurisdiction under a stream-of-commerce theory. (L.W. v. Audi AG (Cal. App. 3rd Dist., Jan. 15, 2025) 108 Cal.App.5th 95.)
No Personal Jurisdiction Over Defendant Living in Switzerland.
Defendant developed a cryptocurrency exchange while living in Washington state but working for a San Francisco-based company. In 2019, he permanently moved to Switzerland. After the move, defendant retained limited control over some administrative features of the company. Plaintiff alleged his investment in the company developed by defendant, but later decentralized, amounted to fraud, conversion, and violations of statutes. The trial court granted defendant’s motion to quash for lack of personal jurisdiction. Affirming, the Court of Appeal stated: “Based on our independent review, the record fails to show that Egorov purposefully availed himself of California benefits, directed conduct at California, or otherwise developed a substantial connection with California.” (ParaFi Digital Opportunities LP v. Egorov (Cal. App. 1st Dist., Div. 2, Jan. 15, 2025) 108 Cal.App.5th 124.)
Both Legitimate and Illegitimate Proceeds of Fraudulent Business Ordered Forfeited.
A jury convicted a defendant, who is a medical doctor, of fraud in a scheme to defraud insurance companies by submitting false claims for reimbursement of weight loss treatments. After trial, the government argued the total proceeds of the business, both the legitimate and illegitimate parts, should be forfeited because the whole business was permeated with fraud. The district court agreed and ordered forfeiture of $98,280,221, the total proceeds of the business during the fraud period. Affirming, the Ninth Circuit stated: “All proceeds directly or indirectly derived from a health care fraud scheme like Get Thin—even if a downstream legitimate transaction conceivably generated some of those proceeds—must be forfeited.” (United States v. Omidi (9th Cir., Jan. 16, 2025) 125 F.4th 1283.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/16/23-1959.pdf
Time Has Run Out for TikTok.
TikTok is a social media platform that allows users to create, publish, view, share, and interact with short videos overlaid with audio and text. Since its launch in 2017, the platform has accumulated over 170 million users in the United States and more than one billion users worldwide. TikTok collects extensive personal information from and about its users, and is subject to Chinese laws that require it to “assist or cooperate” with the Chinese Government’s “intelligence work” and to ensure that the Chinese Government has “the power to access and control private data” the company holds. The Protecting Americans from Foreign Adversary Controlled Applications Act would make it unlawful for companies in the United States to provide services to distribute, maintain, or update the social media platform TikTok, unless U.S. operation of the platform is severed from Chinese control. TikTok challenged the new law, contending it violates the First Amendment. Rejecting the challenge, the U.S. Supreme Court stated: “There is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community. But Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary. For the foregoing reasons, we conclude that the challenged provisions do not violate petitioners’ First Amendment rights.” (TikTok Inc. v. Garland (U.S., Jan. 17, 2025) 145 S.Ct. 57.)
https://www.supremecourt.gov/opinions/24pdf/24-656diff_d1of.pdf
Family Court Has Discretion to Order a Parent to Pay IVF Costs.
A man and a woman who were never married agreed to conceive a child via in vitro fertilization (IVF) using the man’s sperm and a third party’s egg and to raise the child together. They agreed to share the IVF costs, which totaled $55,635. Approximately one month after the child was born, the woman filed a petition to determine parental relationship under the Uniform Parentage Act (Fam. Code, § 7600 et seq.; UPA) against the man. In his response, the man asked the court to order the woman to reimburse him for one half of the IVF costs. The trial court denied the man’s request, stating it did not have the authority to issue such an order. Reversing, the Court of Appeal held that the family court had the discretion to grant such costs, stating: “Our conclusion that Family Code section 7637 authorizes a court to direct a parent to pay expenses of pregnancy, including IVF costs, that were incurred before the parentage action was filed does not mean the statute requires a court do so. The statute provides the judgment or order in an action under the UPA ‘may direct the parent to pay the reasonable expenses of the mother’s pregnancy.’” (Mamer v. Weingarten (Cal. App. 4th Dist., Div. 1, Jan. 17, 2025) 2025 WL 225487.)
The Due Process Clause of the Fourteenth Amendment Provides a Mechanism for Relief for Erroneous Admission of Prejudicial Evidence.
An Oklahoma jury convicted Brenda Andrew of murdering her husband and sentenced her to death. The prosecution spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant. In a federal habeas petition, Andrew argued that this evidence had been so prejudicial as to violate the due process clause. The Tenth Circuit rejected that claim because it thought that no holding established a general rule that the erroneous admission of prejudicial evidence could violate due process. The U.S. Supreme Court granted Andrew’s petition for certiorari and her motion to proceed in forma pauperis, stating: “By the time of Andrew’s trial, this Court had made clear that when ‘evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.’” (Andrew v. White (U.S., Jan. 21, 2025) 145 S.Ct. 75.)
https://www.supremecourt.gov/opinions/24pdf/23-6573_m647.pdf
No Error in Permitting Law Enforcement Expert to Testify About the Retail Value of Narcotics.
A U.S. citizen, Velazquez, residing in Tijuana, entered the United States from Mexico as the driver and sole occupant of a red Pontiac Firebird. The vehicle caught the attention of a U.S. Customs and Border Protection Officer because of its surprisingly clean appearance and new registration for an older vehicle. After the officer looked at the engine, which had suspicious looking characteristics, he called for a canine inspection. The dog immediately alerted its handler to the engine area. A mechanic removed the intake manifold revealing two “electric-tape wrapped packages” of a substance that field-tested positive for fentanyl. Officers seized 4.53 pounds of fentanyl from the Firebird during Velazquez’s arrest. A lab analysis confirmed that the packages contained fentanyl and heroin. According to testimony of a special agent for the Department of Homeland Security at trial, the retail value of the fentanyl ranged anywhere from $405,888 to $608,832. On appeal after his conviction, Velazquez contended the lower court erred in permitting the agent to testify about the retail value of the fentanyl. Affirming, the Ninth Circuit held the lower court did not abuse its discretion when it ruled the special agent’s testimony was relevant and in concluding that the evidence of the retail value was not substantially outweighed by any prejudicial effect. (United States v. Velazquez (9th Cir., Jan. 21, 2025) 125 F.4th 1290.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/21/22-50239.pdf
Attorney Fees Under the Berman Procedure.
Two train dispatchers brought wage and hour claims against their employer before the Labor Commissioner, using the streamlined Berman Procedure, and lost. Thereafter, they pursued the same claims in superior court pursuant to Labor Code § 98 et seq. The trial court held in favor of plaintiffs, awarding more than $140,000 in back pay and attorney fees of $200,000. On appeal, the employer contended Labor Code § 98.2, subdivision (c) only authorizes an attorneys’ award against unsuccessful appellants in a de novo trial in superior court. Ruling against the employer, the Court of Appeal stated: “The Berman procedure does penalize a party—employer or employee—who files an unsuccessful de novo superior court action by awarding attorney fees and costs against that party. (§ 98.2, subd. (c).) But the statute says nothing about a party who brings a successful de novo claim. Prevailing plaintiffs in superior court actions for unpaid wages are generally entitled to an award of reasonable fees and costs (see, e.g., §§ 218.5, 226 and 1194), and nothing in section 98.2 suggests that the Legislature intended to make this remedy unavailable to employees who first attempt to obtain relief from the labor commissioner through the expedited Berman hearing process.” (Villalva v. Bombardier Mass Transit Corporation (Cal. App. 4th Dist., Div. 1, Jan. 21, 2025) 2025 WL 258814.)
Trying to Appeal from Ruling on a Motion in Limine.
In a dispute over title insurance, the trial court granted a defendant’s motion in limine to exclude plaintiff’s expert witness. Plaintiff appealed. Dismissing the appeal, the Court of Appeal stated: “This case presents us with an unusual situation: an appellant appealing directly from an order on a motion in limine, and with published authority supporting the proposition that such an appeal is possible. We dismiss the appeal and publish this opinion to express our disagreement with that authority and our view that this type of order is properly reviewed only by writ petition or by appeal from the final judgment.” (Sheehy v. Chicago Title Insurance Company (Cal. App. 4th Dist., Div. 3, Jan. 21, 2025) 2025 WL 258810.)
A Knowing Violation of a Domestic Violence Restraining Order Cannot Be Characterized as a De Minimis or Technical Violation.
The trial court denied plaintiff’s request to renew her domestic violence restraining order (Fam. Code, § 6200 et seq.; DVRO), finding her fear of future abuse was unreasonable. Reversing, the Court of Appeal noted the trial court discounted plaintiff’s fear and stated: “None of these factors are supported by substantial evidence and none of them negate the reasonableness of [plaintiff’s] fear of future harm. . . [defendant’s] rationale for sending the communications is not an excuse because a knowing violation of a DVRO cannot be characterized “as ‘a de minimis and technical violation.’ . . . it was an abuse of discretion to deny renewal of the DVRO.” (Navarro v. Cervera (Cal. App. 1st Dist., Div. 3, Jan. 22, 2025) 2025 WL 262412.)
Referring to Parcels of Land Separately in a Conveyance Does Not Create Multiple Parcels.
The California Supreme Court explained that the Subdivision Map Act (Gov. Code, §§ 66410–66499.41) is the primary regulatory control governing the subdivision of real property in California. In general, the act requires a landowner wanting to divide real property to first seek local governmental approval of a map detailing various aspects of the proposed subdivision. The act prohibits the sale, lease, or financing of any parcel of subdivided real property until an approved map is recorded. The filing of such a map was formerly only required when dividing land into five or more parcels during a one-year period. But the Legislature amended the act, effective March 4, 1972, to require the filing of a “parcel map” when dividing land into fewer than five parcels. A landowner claimed that a conveyance occurring prior to March 4, 1972 created three separate parcels through a division of land under Government Code § 66412.6, subdivision (a). The Supreme Court disagreed with the landowner, holding: “[F]or purposes of section 66412.6(a), a conveyance does not ‘create[]’ multiple parcels merely by referring separately to lots of the contiguous property being conveyed.” (Cox v. City of Oakland (Cal., Jan. 24, 2025) 562 P.3d 2.)
No Negligence Per Se or Ultrahazardous Activity.
Plaintiffs were injured at a nightclub shooting that occurred during a rap concert featuring performers from rival gangs. Plaintiffs sued defendants, the owner and operators of the nightclub, for negligence per se and strict liability on an ultrahazardous activity theory. Generally, plaintiffs claimed defendants had failed to properly plan the event and to provide adequate security. The trial court granted defendants summary adjudication on the negligence per se claim and judgment on the pleadings on the ultrahazardous activity claim. The court then entered judgment for defendants. Plaintiffs appealed the judgment, arguing there are triable issues of fact as to both claims. The Court of Appeal affirmed, stating: “First, plaintiffs’ negligence per se claim is based on the defendants’ alleged violation of certain provisions of a conditional use permit (the permit) to operate the nightclub. But the permit was not designed to prevent the type of injuries that plaintiffs sustained. Second, hosting a rap concert, even one with performers from rival gangs, is not an ultrahazardous activity.” (Carmichael v. Café Sevilla of Riverside (Cal. App. 4th Dist., Div. 3, Jan. 24, 2025) 2025 WL 299642.)
Defamation Claim Against Employer Found to Be Wrongful Termination Claim by Another Name.
Plaintiff began working for defendant in 1996. After an investigation in 2018, plaintiff was identified as a person who submitted “potentially false time cards.” Plaintiff was terminated in 2019. Plaintiff sued defendant for wrongful termination, retaliation and statutory violations. Plaintiff’s defamation and retaliation claims were tried to a jury, and the jury found defendant liable for defamation but rejected plaintiff’s retaliation claim. On appeal, defendant contended the trial court erred by denying its motion for judgment notwithstanding the verdict, JNOV, because plaintiff’s defamation claim was not separately actionable—i.e., the defamation claim was premised on the same conduct that gave rise to his termination and the damages sought were solely related to his loss of employment. In his cross-appeal, plaintiff alleged the verdict rejecting his retaliation claim is not supported by sufficient evidence and contends the trial court erroneously excluded relevant evidence. Ruling in favor of the defendant employer, the Court of Appeal stated: “Tort claims, including defamation, may be brought by former employees against their employers. However, as Hearn’s claim for defamation is a claim for wrongful termination by another name, we reverse the trial court’s order denying PG&E’s JNOV.” (Hearn v. Pacific Gas & Electric Company (Cal. App. 1st Dist., Div. 3, Jan. 24, 2025) 2025 WL 299389.)
City Filed Untimely Motion for Attorney Fees and Costs in Limited Civil Case.
Government Code § 53069.4 authorizes local governments to enact an administrative process to enforce violations of ordinances through the imposition and collection of administrative fines or penalties. A party dissatisfied with the result may appeal, and the superior court will conduct a de novo review. Government Code § 53069.4, subdivision (b)(1) specifies that such an appeal proceeding is a limited civil case. Plaintiff was cited by the city for keeping noisy and too many animals on his property. The citation was upheld in an administrative hearing and plaintiff sought de novo review in superior court, which court upheld the citation in a Notice of Decision mailed to the parties. The city filed a motion for attorney fees and costs, which the court denied. Affirming, the Appellate Division of the Superior Court stated: “Because the decision of the court upholding the citation constituted a judgment in a limited civil jurisdiction matter which finally disposed of Mendoza’s appeal of the citation, with no further order or judicial directive forthcoming, the City was required to file its motion within 30 days from when the clerk served the parties with the decision. (Cal. Rules of Court, rules 3.1702(b)(1) & 8.822(a)(1)(A).) Since the motion was filed 66 days after the decision was served, the court correctly denied it as untimely.” (Mendoza v. City of Duarte (L.A. Super Ct. App. Div., Jan. 27, 2025) 2024 WL 5359913.)
No Attorney Fees for Prevailing Car Dealership.
Plaintiffs filed an action against defendant car dealership when the used car they purchased developed problems and defendant refused to pay for repairs. The trial court granted defendant’s motion for summary judgment and awarded costs and attorney fees to defendant. Reversing the award of attorney fees, the Court of Appeal’s analysis went statute by statute:
- The Magnuson-Moss Act allows for the recovery of attorney fees only by a prevailing consumer. (15 U.S.C. § 2310(d)(2).) Reversing the trial court’s award under this Act, the Court of Appeal stated: “We . . . conclude that [Civil Code] section 1717 does not permit the recovery of attorney fees by a defendant who prevails against a plaintiff consumer on a Magnuson-Moss Act claim.”
- The Song-Beverly Act also allows for the awarding of attorney fees to a prevailing buyer. (Civ. Code, § § 1794, subd. (d).) Reversing the award of fees under this act, the Court of Appeal stated: “The unilateral nature of the Song-Beverly Act therefore conflicts with [Civil Code] section 1717, which provides for the awarding of fees to a prevailing party, regardless of whether it is a plaintiff or defendant. . . . The Song-Beverly Act, which addresses the availability of fees for breaches of a warranty, is more specific than section 1717. . . when the Legislature has treated prevailing plaintiffs and prevailing defendants differently for attorney fees, more general statutes [] do not control. . . , an agreement between a dealership and a purchaser that would provide attorney fees to the prevailing dealership against the purchaser who brought a SongBeverly Act claim would be proscribed as contravening public policy.”
- Regarding fees under the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.; CLRA), the Court of Appeal reversed, stating: “For all the reasons we conclude [Civil Code] section 1717 does not allow a prevailing defendant on a Song-Beverly Act claim to be awarded attorney fees, we conclude that, absent a finding of bad faith prosecution by the trial court, such a defendant also is not entitled to an award of attorney fees for prevailing on a CLRA claim.”
- California’s Unfair Competition Law (Bus. &Prof. Code, § 17200 et seq.; UCL) Denying fees under this statute, the Court of Appeal stated: “Because these causes of action were premised on, and overlapped with, plaintiffs’ Magnuson-Moss Act, Song-Beverly Act, and CRLA causes of action, we conclude that defendant cannot recover attorney fees under section 1717.”
(Martinez v. SAI Long Beach B, Inc. (Cal. App. 2nd Dist., Div. 5, Jan. 28, 2025) 2025 WL 313966.)
Government Not Entitled to Privilege Log.
In Fisher v. United States (1976)425 U.S. 391, the U.S. Supreme Court held that when the Fifth Amendment protects an individual from the compelled production of documents and the individual shares those documents with his attorney to obtain legal advice, the attorney-client privilege shields the attorney from compelled production of those documents to the government. The Ninth Circuit considered whether an attorney may be compelled to provide the government with a privilege log of documents the attorney asserts are protected under Fisher. The appeals court held: “We hold that an attorney cannot be ordered to provide the government with a privilege log of documents to which the Fisher privilege applies. To determine whether the requirements for Fisher protection are in fact satisfied, a district court will generally need to conduct an in camera review. Because the district court here ordered a privilege log to be provided to the Government without any such prior process, we reverse and remand.” (In re Grand Jury Subpoena (9th Cir., Jan. 29, 2025) 2025 WL 313218.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/01/28/24-2506.pdf
Two MICRA Caps.
Plaintiff sought a writ of prohibition or mandate directing the superior court to vacate its order granting defendant medical center’s motion to strike portions of plaintiff’s complaint that allege her entitlement to seek two Medical Injury Compensation Reform Act caps (Civ. Code, § 3333.2; MICRA). Issuing a writ of mandate, the Court of Appeal stated: “Crucially, a wrongful death claim may not include any damages recoverable as part of a survival claim, and the claims may be tried separately. . . . For these reasons, we conclude respondent court erred in finding the claims were ‘not separate and distinct’ and subject to one MICRA cap.” (Ng v. Superior Court of Orange County (Cal. App. 4th Dist., Div. 3, Jan. 29, 2025) 2025 WL 323098.)
Another Defendant Didn’t Timely Pay Arbitration Fees and Ended Up Back in Superior Court.
Defendant employer moved to compel arbitration in an empolamento dispute. Defendant promptly paid two arbitration fee invoices but failed to pay the next invoice within the 30-day period required by Code of Civil Procedure § 1281.98. Plaintiff elected to withdraw from arbitration and moved to vacate the arbitration and stay order. Finding defendant materially breached the arbitration agreement, the superior court granted the motion. Defendant then moved to vacate the court order pursuant to Code of Civil Procedure § 473, subdivision (b), which the trial court denied. Affirming the challenged orders, the Court of Appeal stated: “We recently addressed whether the FAA preempts section 1281.98 in Keeton v. Tesla, Inc. (2024) 103 Cal.App.5th 26, 32 (Keeton), review granted September 11, 2024, S286860. We concluded it does not, as have all but one of the Courts of Appeal that have considered the issue. We are not persuaded to depart from our conclusions in Keeton.” (Colon-Perez v. Security Industry Specialists, Inc. (Cal. App. 1st Dist., Div. 1, Jan. 29, 2025) 2025 WL 322949.)
Election Observers Found to Be Close Enough.
Plaintiff Election Integrity Project California, Inc. (EIPC) brought an action for declaratory relief against a county registrar of voters, contending its election observers of vote-by-mail ballot processing and counting were denied their rights under Election Code § 15105. It claimed the registrar restricted the observers to places where they could not adequately observe the vote-by-mail processing and counting. There was evidence the registrar personally stood in every designated observation area and determined for himself the areas were sufficiently close to allow observers to see the process and whether the election workers were following established procedures. The trial court found for the county. Affirming, the Court of Appeal stated regarding the signatures on the ballots: “Had the Legislature intended that observers must be close enough to be able to make the comparison themselves, it would have said so.” (Election Integrity Project California, Inc. v. Lunn (Cal. App. 2nd Dist., Div. 6, Jan. 30, 2025) 2025 WL 341749.)
Fraud Action Against Church Tossed.
Plaintiff sued the Church of Jesus Christ of Latter-Day Saints, alleging the church had committed fraud by using tithing funds to finance commercial endeavors despite stating that it had not and would not do so. The district court granted summary judgment to the church. Affirming, the Ninth Circuit stated: “No reasonable juror could conclude that the Church misrepresented the source of funds for the City Creek project. Although the Church stated that no tithing funds would be used to fund City Creek, it also clarified that earnings on invested reserve funds would be used. The Church had long explained that the sources of the reserve funds include tithing funds. Huntsman has not presented evidence that the Church did anything other than what it said it would do.” (Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints (9th Cir., Jan. 31, 2025) 2025 WL 351595.)
https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/07/21-56056.pdf
Defendant Manufacturer’s Offer to Stipulate Plaintiff’s California Action Should Be Stayed Pending Adjudication in Indiana Found to Be Unconscionable.
Plaintiff sued defendant for damages under California’s lemon law, the Song-Beverly Act (Civ. Code, § 1790 et seq.). The agreement plaintiff and defendant entered into when plaintiff purchased an RV from defendant RV manufacturer was that all legal disputes regarding the sale would be resolved in Indiana, governed by Indiana law. When plaintiff filed the instant action in California, defendant filed a motion to stay or dismiss the action on forum non conveniens grounds, contending that the exclusive jurisdiction for this case was Indiana. But to “allay” any concerns that plaintiff’s “essentially unwaivable” rights under the Song-Beverly Act would be forfeited if the case was resolved in Indiana, defendant advised the trial court it would stipulate that California law would apply to plaintiff’s warranty claims and it would not oppose a request that the Indiana court “use Song-Beverly to adjudicate those allegations.” The trial court granted defendant’s motion to stay plaintiff’s California action. Reversing, the Court of Appeal stated: “This case raises the question whether, in the face of an unconscionable agreement, a trial court may correct the problem by staying the action so that, ‘should the Indiana court decline to apply the Song-Beverly Act, then plaintiff can move to lift the stay on this matter.’ We conclude that the lower court erred in its application of the legal standard and in its conclusion that a stipulation to apply California law and concomitant stay of the action would remedy the waiver of non-waivable rights.” (Hardy v. Forest River, Inc. (Cal. App. 2nd Dist., Div. 2, Jan. 31, 2025) 2025 WL 354558.)
County Did Not Meet Its Burden on Negligence Claim After Leaving a Child With Foster Parent Who Abused Him.
Plaintiff, now an adult, sued defendants Orange County Social Services Agency and County of Orange for negligence arising out of alleged sexual abuse by his foster father from the time he was a small child until he was a teenager, beginning in the mid-1970s. He contended he repeatedly informed the social worker that “bad people are hurting me.” The county moved for summary judgment, arguing there was insufficient evidence the county was aware of any abuse or risk of abuse while the child was in the alleged abuser’s foster home. The trial court ultimately agreed that the information reported to the county was insufficient to make it reasonably foreseeable that ongoing abuse was occurring. Alternatively, the court found that discretionary immunity applied. Reversing, the Court of Appeal stated: “On the negligence claim, the County failed to meet its burden to demonstrate a duty of care does not exist. Moreover, we find that discretionary act immunity does not apply. We conclude there was no considered decision to leave D.G. in the foster home after he reported he was being hurt by ‘bad people.’” (D.G. v. Orange County Social Services Agency (Cal. App. 4th Dist., Div. 3, Jan. 31, 2025) 2025 WL 354553.)
Compensated Carrying Exclusion in Auto Policy Applied When Plaintiff Was Making Deliveries for His Employer.
Plaintiff was insured under a personal automobile policy issued by defendant insurance company and was involved in a collision with another vehicle while using his personal vehicle to conduct business as a delivery driver on behalf of his employer. His coverage claim was denied, and he sued defendant for breach of contract to obtain benefits under the policy. The trial court granted summary judgment, finding defendant had correctly denied the claim under an exclusion which prevents coverage when the insured is transporting property in exchange for compensation. Plaintiff contended the compensated-carrying exclusion only applied to delivery drivers who work as independent contractors, rather than drivers who are employed by those compensating them. Affirming, the Court of Appeal stated: “The policy language here is clear and explicit. There is no coverage for collision damage occurring while the car is being operated to transport property in exchange for compensation. . . . Murphy’s employer, Grassdoor, was legally responsible for making him whole in this situation. Labor Code section 2802 subdivision (a), provides: ‘An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties . . . .’” (Murphy v. AAA Auto Insurance of Southern California (Cal. App. 4th, Div. 3, Jan. 31, 2025) 2025 WL 354639.)