Litigation Update: January 2020

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

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Reuben Ginsburg
  • Editors, Dean Bochner, Glenn Danas, Julia Shear Kushner, Jessica Riggin, Kenneth Wang, and David Williams
Award of Attorney Fees to Class Counsel.

Plaintiff moved for an award of $350,000 in attorney fees after her class action settled. The district court conducted a lodestar analysis of her counsel’s billing, reduced the hours by 25 percent, and awarded plaintiff $184,665 in fees. On appeal, plaintiff argued that the award was arbitrary because the district court did not adequately explain its decision to reduce the number of hours by 25 percent. Affirming, the Ninth Circuit Court of Appeals concluded that the district court adequately explained its reasoning, stating: “The district court’s order awarding attorneys’ fees, when read in its entirety, explains the lodestar calculation it conducted and its application of the percentage-of-recovery analysis as a cross-check for reasonableness.” (Johnson v. MGM Holdings, Inc. (9th Cir., Dec. 2, 2019) 943 F.3d 1239.)

“One problem I have with drug companies is that they don’t make all their data public,” Irving Kirsch.

Defendants are pharmaceutical companies that developed and marketed Actos, a drug that was intended to lower blood sugar in type 2 diabetics. In a class action filed by patients and third-party payors of health benefits who reimburse members’ claims for drugs, plaintiffs alleged that despite learning that Actos increased a patient’s risk of developing bladder cancer, defendants refused to change the drug’s warning label or otherwise inform the public of such risk. The patients alleged they never would have purchased Actos had they known of the increased risk of bladder cancer, and thus would never have submitted reimbursement claims. The district court dismissed the cause of action under the Racketeer Influenced and Corrupt Organizations Act for lack of standing. Reversing, the Ninth Circuit stated: “While we express no opinion on Plaintiffs’ chances of success in this litigation as it proceeds, we hold that Plaintiffs have satisfactorily alleged that Defendants proximately caused their claimed damages at the pleadings stage.” (Painters and Allied Trades District Council 82 Health Care Fund v. Takeda Pharmaceuticals Company Limited (9th Cir., Dec. 3, 2019) 943 F.3d 1243.)

Qualified Immunity for Police Officers.

Plaintiff, a victim of domestic violence, sued a city and several police officers under 42 U.S.C. § 1983, alleging that they placed her at greater risk of future abuse. She also sued her abuser, a police officer with whom she lived, as well as members of his family. The district court granted summary judgment in favor of several individual defendants. Affirming, the Ninth Circuit held that, while the conduct of the individual police officers violated plaintiff’s constitutional right to due process, the officers were entitled to qualified immunity because it was not clear at the time that their conduct was unconstitutional. (Martinez v. City of Clovis (9th Cir., Dec. 4, 2019) 943 F.3d 1260.)

Service Complete When MFAA Award Deposited in Mail.

An attorney obtained an award of $2.50 in an attorney-client fee arbitration under the Mandatory Fee Arbitration Act (Bus. & Prof. Code, § 6200 et seq.). Thirty-three days after the award was served by mail on the parties, the attorney filed an action to recover the full amount of fees owed. The trial court concluded that the attorney’s action was timely on the ground that Code of Civil Procedure § 1013 extended the attorney’s time to file the action by five days because the award was served by mail. The court awarded the attorney $2,890 plus $79,898 in prevailing-party attorney fees. Reversing, the Court of Appeal concluded service of the arbitration award was complete at the time it was deposited in the mail and did not extend the attorney’s time to file the action. (Soni v. Simplelayers, Inc. (Cal. App. 2nd Dist., Div. 5, Dec. 4, 2019) 42 Cal.App.5th 1071.)

Electronic Signature Not Authenticated.

After plaintiff sued defendant, defendant moved to compel arbitration based on an arbitration agreement that had a computerized signature. In opposing the motion, plaintiff produced evidence that her communications with defendant were all telephonic and that she was not provided with any documents to sign. Defendant contended the signature was authenticated by DocuSign, a service used to electronically sign documents in compliance with the U.S. Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.). Defendant produced a declaration by an employee stating that plaintiff entered into the contract on a certain date. But defendant did not present any evidence from or about DocuSign, and its employee’s declaration did not state that plaintiff actually signed the contract, electronically or otherwise. In denying the motion to compel arbitration, the trial court found defendant failed to establish plaintiff electronically signed the contract.  Affirming, the Court of Appeal stated: “[Defendant] was required to establish that its evidence compelled a finding in its favor as a matter of law. The Contract and [the employee’s] declaration do not compel this finding. We thus conclude that the trial court did not err in denying [defendant’s] petition to compel arbitration based on [defendant’s] failure to prove, by a preponderance of the evidence, that [plaintiff] electronically signed the Contract.” (Fabian v. Renovate America, Inc. (Cal. App. 4th Dist., Div. 1, Dec. 4, 2019) 42 Cal.App.5th 1062.)

Grey Goose Vodka to the Rescue.

A bartender refused to serve alcoholic drinks to the defendant and his companion because they appeared to be intoxicated.  After defendant pounded the counter, yelled, cursed, and went behind the counter, the bartender picked up a bottle of Grey Goose vodka and held it over his shoulder “to deter” defendant from attacking him. Defendant was then escorted out of the restaurant by security personnel. While he was being removed from the restaurant, defendant called out to the largely African American crowd to be careful because the bartender was a racist. Video of the incident was posted on the Internet, and people began calling the bartender “the racist bartender.” The bartender sued defendant for assault, slander per se, and intentional infliction of emotional distress. Defendant filed a special motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16), which the trial court denied. Affirming, the Court of Appeal stated: “neither [defendant’s] statements calling [the bartender] a ‘racist,’ nor [defendant’s] other conduct during the incident . . . involved a matter of public interest or concern. Rather, [defendant’s] statements stemmed out of an isolated dispute between himself and [the bartender]. The lower court, therefore, properly denied [defendant’s] anti-SLAPP motion.” (Bernstein v. LaBeouf (Cal. App. 2nd Dist., Div. 3, Dec. 6, 2019) 2019 WL 6681928.)

Attempted Extortion and Bribery of a Public Official.

Defendant, who worked as a field representative for then-Congresswoman Janice Hahn, appealed his convictions and sentence for attempted extortion by a federal employee in violation of 18 U.S.C. § 872 and bribery of a public official in violation of 18 U.S.C. § 201(b)(2)(A). Defendant promised an undercover agent, who posed as an investor and partner of a medical marijuana dispensary, to resolve the dispensary’s permitting problems in exchange for money. Defendant did not dispute that he took money in exchange for a promise that he made as a federal official; instead, he argued that he promised to do the impossible, so his conduct fell outside the purview of § 201 bribery. Affirming, the Ninth Circuit stated: “The case against [defendant] was neither factually nor legally deficient, and a rational factfinder ‘could have found the essential elements of the crime beyond a reasonable doubt.’ ” (United States v. Kimbrew (9th Cir., Dec. 9, 2019) 944 F.3d 810.)

Raise Your Hand if You Know What an Elisor Is.

Gonzales retained Lawyer #1 and Lawyer #2 after he suffered injuries in a bicycle accident. Lawyer #1 and Lawyer #2 advanced over $110,000 in the course of their representation. When one of the defendants settled for about $100,000, Lawyers #1 and #2 withdrew from the case. Gonzales then hired Lawyer #3, who obtained an additional $300,000 settlement from another defendant. Gonzales, however, refused to sign the settlement agreement and endorse the check. Instead he terminated Lawyer #3. Gonzales then retained Lawyer #4 and, despite his promise to do so, again refused to endorse the check. When he terminated Lawyer #4, Lawyer #4 filed an interpleader action, turned the settlement check over to the court clerk, and moved for the appointment of an elisor (a person appointed by the court to perform functions like the execution of a deed or document). The trial court granted the motion and the settlement funds were disbursed to Lawyers #1, #2, #3, #4, and various lienholders. Gonzales appealed. Affirming, the Court of Appeal found that Lawyer #4 could properly file the interpleader action. (Hood v. Gonzales (Cal. App. 4th Dist., Div. 1, Dec. 9, 2019) 43 Cal.App.5th 57.)

Use of a Bullhorn.

The City of Vallejo required individuals to obtain permits before they could use sound-amplifying devices within the city. Petitioner sought to use a bullhorn so that he could amplify his voice during weekend protests of alleged animal mistreatment at Six Flags Discovery Park in Vallejo, where the noise of the park hampered his ability to spread his message. Concerned that the city would enforce the permit requirement against him, Petitioner filed an action, contending that the requirement violates the free speech protections contained in both the United States and the California constitutions. Petitioner moved for a preliminary injunction to enjoin the enforcement of the permit system, which the district court denied. Reversing, the Ninth Circuit found that the city failed to meet its burden of presenting evidence that its interest in regulating sound amplifying devices would be “seriously hampered” by the injunction. (Cuviello v. City of Vallejo (9th Cir., Dec. 10, 2019) 944 F.3d 816.)

When Action Against Debt Collector May Be Brought.

The Fair Debt Collection Practices Act (15 U.S.C. § 1692-1692p; FDCPA) authorizes private civil actions against debt collectors who engage in certain prohibited practices. An action under the FDCPA may be brought “within one year from the date on which the violation occurs.” The U.S. Supreme Court therefore held the FDCPA’s limitations period begins to run on the date on which the alleged FDCPA violation occurs, not the date on which the violation is discovered. (Rotkiske v. Klemm (U.S., Dec. 10, 2019) 2019 WL 6703563.)

Past Recollection Recorded.

A criminal defendant argued that the trial court erred in admitting out-of-court statements under the past recollection recorded exception to the hearsay rule because the recorded statements were not made at a time when they were fresh in the witness’s mind. (Evid. Code, § 1237.) The statements were made in 2007 and recorded in 2013, six years after the events. Finding the trial court erred in admitting the statements, the appellate court found: “Although we stop short of concluding that a six-year gap between the incident and the recorded statements is too long under Evidence Code section 1237 as a matter of law, such a considerable gap of time requires a party trying to admit the subject statements to lay a sufficient foundation to show that the incident or facts were ‘fresh’ in the declarant’s mind at the time the statements were recorded. And even though the law does not require magic words to lay the proper foundation, when the time between events is so extended (as it is here) there simply needs to be more offered to establish the freshness element.” Nevertheless, the error was harmless and the judgment was affirmed. (People v. Royal (Cal. App. 4th Dist., Div. 1, Dec. 10, 2019) 43 Cal.App.5th 121.)

The Cost of Getting Into Court.

Under the Patent Act, applicants “dissatisfied with the decision of the Patent Trial and Appeal Board” may file a civil action in federal district court. (35 U.S.C. § 145.) The statute specifies that “[a]ll the expenses of the proceedings shall be paid by the applicant.” The question presented to the U.S. Supreme Court was whether such “expenses” include the salaries of attorney and paralegal employees of the U.S. Patent and Trademark Office. The Supreme Court held that they do not. (Peter v. NantKwest, Inc. (U.S., Dec. 11, 2019) 2019 WL 6719083.)

Approval of Class Action Settlement Reversed.

Exotic dancers filed this suit under federal and California labor law, claiming various nightclubs in San Francisco misclassified them as independent contractors rather than employees. The district court approved a class action settlement that was negotiated in the absence of a certified class. Objectors challenged that settlement approval under Federal Rule of Civil Procedure 23, contending the settlement recovered only a fraction of the class claims’ value, accorded too much weight to worthless “coupons” and injunctive relief, and the court disregarded indicia of collusion that warranted additional scrutiny. Objectors also challenged the adequacy of the notice process because it involved only a single notice sent by U.S. mail and posters hung in the defendant nightclubs, and lacked any electronic outreach. Reversing, the Ninth Circuit held that the notice did not meet Rule 23’s “best notice that is practicable under the circumstances” standard, and that the trial court failed to apply the correct legal standard and conduct the heightened inquiry required for review of settlements negotiated without a certified class. (Roes v. SFBSC Mgmt., LLC (9th Cir., Dec. 11, 2019) 944 F.3d 1035.)

Alleged Forced Abortion.

Petitioner, a citizen of China who applied for asylum in the United States, alleged the Chinese government subjected her to a forced abortion. An immigration judge found her testimony not credible and denied relief. Reversing, the Ninth Circuit held that the immigration judge erred by deeming Petitioner not credible based on “trivial” inconsistencies in her statements. Additionally, the immigration judge did not afford adequate notice of the basis for rejecting her medical documentation, and therefore did not provide an adequate opportunity to corroborate that documentation. (Qiu v. Barr (9th Cir., Dec. 11, 2019) 944 F.3d 837.)  

“The consequences of poor nutrition and a lack of exercise are serious,” Amy Klobuchar.

The opinion does not state who the plaintiff is, but the Internet states its mission: “The Physicians Committee for Responsible Medicine (PCRM), founded in 1985, is headquartered in Washington, D.C. PCRM consists of approximately 5,000 physicians and 100,000 lay members. Activities of the organization include promoting humane education and urging alternatives to the use of animals in medical school curricula, sponsoring public education campaigns on nutrition, and conducting nutrition research.” Plaintiff filed a petition for writ of mandate seeking to prohibit local school districts from serving processed meats in their schools and direct them to modify wellness policies to reflect the goal of reducing or eliminating processed meats. The school districts demurred, arguing they were under no statutory obligation to reduce or eliminate processed meat from schools. The trial court sustained the demurrers. Plaintiff appealed Affirming, the Court of Appeal concluded that plaintiff failed to show either a ministerial duty or an abuse of discretion by the school districsts.  (Physicians Committee for Responsible Medicine v. Los Angeles Unified School Dist. (Cal. App. 4th Dist., Div. 1, Dec. 12, 2019) 43 Cal.App.5th 175.)

Manufacturer Wore a Retail Hat.

The Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.) provides enhanced remedies to consumers who buy new consumer goods accompanied by a manufacturer’s express warranty. It also provides for an implied warranty of merchantability. The same protections generally apply to the sale of used goods accompanied by an express warranty, except that the distributor or retail seller is bound, as opposed to the manufacturer, and the duration of the implied warranty of merchantability is much shorter. This case involves the sale of a certified preowned Mercedes Benz that still had a portion of the new vehicle warranty remaining, and which was accompanied by an additional used vehicle warranty issued by the manufacturer. An uncurable defect manifested after the expiration of the new vehicle warranty but during the duration of the used vehicle warranty. Mercedes Benz refused to repurchase the vehicle, and the plaintiff sued. A jury found Mercedes Benz liable under the Song-Beverly Act for breach of both the express warranty and the implied warranty of merchantability, and, pursuant to the stipulation of the parties as to the amount of damage, awarded the same compensatory damages on both causes of action. The court entered judgment on the jury’s special verdict after striking the damages for breach of the implied warranty, presumably to avoid a double recovery. Mercedes Benz appealed. Affirming, the Court of Appeal stated: “We conclude the jury’s verdict on the breach of express warranty was sound. Although the Song-Beverly Act generally binds only distributors and retail sellers in the sale of used goods, we conclude Mercedes Benz stepped into that role by issuing an express warranty on the sale of a used vehicle.” (Kiluk v. Mercedes-Benz USA, LLC (Cal. App. 4th Dist., Div. 3, Dec. 12, 2019) 43 Cal.App.5th 334.)

Plaintiff Fired for Reporting Harassment of Another Employee by a Supervisor.

Plaintiff worked as a maintenance supervisor and a cook for defendant, a conference center, which hosts seminars, retreats, and camps on a 30-acre property in the mountains. Defendant conference center is a subordinate affiliate of defendant Community of Christ. When a younger male employee confided in plaintiff that a female executive director had been sending him sexually inappropriate text messages, plaintiff reported the allegation to a member of the conference center’s board of directors and to the church’s general counsel. The executive director admitted sending the messages, was reprimanded, and was allowed to continue supervising plaintiff and the younger male employee. Plaintiff was terminated less than a month after reporting the harassment. Plaintiff sued defendants, alleging retaliatory termination under several legal theories. The court instructed the jury about the single employer doctrine. The jury returned a special verdict in plaintiff’s favor on all causes of action. Defendants were ordered to pay almost $900,000 in damages, including punitive damages, and almost $1 million in attorney’s fees. Defendants appealed. The Court of Appeal found that substantial evidence supported the single employer finding, rejecting Defendants’ arguments that the conference center did not have 15 employees and, thus, could not be held liable under Title VII (42 U.S.C. § 2000e(b)), and that the church, which had more than 15 employees, could not be held liable under Title VII because it didn’t directly terminate plaintiff. The Court of Appeal also rejected defendants’ argument that the punitive damages award was unconstitutionally excessive, noting that defendants’ joint net worth was over $179 million, and the award was not excessive. The Court of Appeal did, however, hold that defendants were exempt from liability under Fair Employment and Housing Act (Gov. Code, § 12926 et seq.; FEHA).  The Court of Appeal modified the judgment to delete reference to liability under FEHA and affirmed. (Mathews v. Happy Valley Conference Center, Inc. (Cal. App. 6th Dist., Dec. 12, 2019) 43 Cal.App.5th 236.)

Causation in a Criminal Case.

Defendant and the victim, who was high on methamphetamine and had a heart condition, fought. First responders restrained the uncooperative victim in an effort to render medical aid. Shortly thereafter, the victim became unconscious and died. An autopsy revealed that the victim had “hypertensive changes of the heart, kidneys and brain; hypoxic-ischemic neuronal change in the hippocampus; fluid in the lungs; hepatitis and hepatic fibrosis. . . Although abrasions and contusions were noted, there were no lethal traumatic injuries. The toxicology testing of postmortem blood revealed the presence of methamphetamine and its metabolite amphetamine.” The criminal defendant pled guilty to committing assault by force likely to produce great bodily injury in exchange for dismissal of a murder count. At issue on appeal was whether the trial court abused its discretion in concluding, in the context of a victim restitution order, that defendant’s conduct caused the victim’s death. Affirming the victim restitution order, the Court of Appeal stated: “But the coroner’s inclusion of the physical altercation as one of the ‘circumstances’ that contributed to the victim’s death supports the inference that the victim would not have died but for the altercation.” (People v. Trout-Lacy (Cal. App. 6th Dist., Dec. 13, 2019) 43 Cal.App.5th 369.)

“There can be as much value in the blink of an eye as in months of rational analysis,” Malcolm Gladwell.

Plaintiff sued the city and one of its police officers under 42 U.S.C. § 1983 and state law for the officer’s fatal shooting of plaintiff’s schizophrenic son at a gas station. The officer was responding to calls reporting that decedent “had poured gasoline on a woman and tried to light her on fire.” After a three-day trial, the jury returned a special verdict finding that the police officer did not use excessive force or act negligently. Plaintiff appealed, challenging the exclusion of her testimony about decedent’s past behavior. Reversing, the Ninth Circuit held the lower court abused its discretion in excluding the evidence, noting the excluded evidence was relevant to whether decedent would have appeared to be mentally ill, and thus to whether the police officer knew or should have known that decedent was mentally ill. (Crawford v. City of Bakersfield (9th Cir., Dec. 16, 2019) 944 F.3d 1070.)

Snatching Defeat from the Jaws of Victory.

Plaintiff sued the county for injuries resulting from her slip and fall on an uneven concrete pathway in a park. The county filed successive motions for summary judgment (the second one with new evidence) based on its “trail immunity” defense (Gov. Code, § 831.4), which provides absolute immunity to public entities for injuries sustained on public trails that provide access to, or are used for, recreational activities. The trial court denied the county’s motions, finding disputed facts existed regarding whether the pathway was used for recreational purposes. But when plaintiff conceded during argument over the proposed verdict forms that the pathway was used, at least in part, for recreational purposes, the trial court granted a nonsuit in the county’s favor. Plaintiff contends the trial court erred procedurally and substantively. Affirming, the Court of Appeal stated: “Considering the relevant factors in light of [plaintiff’s] stipulation that the pathway was used, in part, for recreational purposes, we conclude as a matter of law that the pathway constitutes a trail for purposes of trail immunity.” (Loeb v. County of San Diego (Cal. App. 4th Dist., Div. 1, Dec. 16, 2019) 43 Cal.App.5th 421.)

Modified Loan May Be Reinstated.

If all or part of the principal secured by a mortgage or deed of trust becomes due as the result of the borrower’s default in paying interest or installments of principal, Civil Code § 2924c allows the borrower to cure the default, reinstate the loan, and avoid foreclosure by paying the amount in default, plus specified fees and expenses. Under § 2953, the right of reinstatement cannot be waived in “[a]ny express agreement made or entered into by a borrower at the time of or in connection with the making of or renewing of any loan secured by a deed of trust, mortgage or other instrument creating a lien on real property.” The borrowers in this appeal missed four monthly payments on a mortgage loan that had been modified after an earlier default. The modification deferred certain amounts due on the original loan, including principal, and provided that any default would allow the lender to void the modification and enforce the original loan terms. The borrowers argued that under §§ 2924c and 2953, they could reinstate the modified loan by paying the four missed payments, plus fees and expenses. The lender argued that § 2953 did not apply to the modified loan, and under § 2924c the borrowers had the right to reinstate the original loan by paying the amount of the earlier default on the original loan, which had been deferred under the modification to the end of the loan term, and paying the missed modified monthly payments that caused the default on the modified loan. The trial court entered judgment for defendants. Reversing, the Court of Appeal concluded “that the borrowers have the better argument.” (Taniguchi v. Restoration Homes LLC (Cal. App. 1st Dist., Div. 2, Dec. 16, 2019) 43 Cal.App.5th 478.)

Previously We Reported:
Homeless with No Place to Sleep.

Plaintiffs, six homeless persons, filed an action challenging under the Eighth Amendment to the U.S. Constitution city ordinances making it a misdemeanor to use any streets, sidewalks, parks or public places for camping. Plaintiffs had been turned away from the city’s shelters, forcing them to sleep on the streets. They received citations and expected they would be cited again in the future, prompting them to bring a civil rights action under 42 U.S.C. § 1983 for declaratory and injunctive relief. After the action was filed, however, the city amended its ordinance to prohibit enforcement against any homeless person on public property on any night when no shelter had available overnight space. The Ninth Circuit Court of Appeals concluded the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to, stating: “We conclude that a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter.” (Martin v. City of Boise (9th Cir., Sep. 4, 2018) 902 F.3d 1031.)

The Latest:

The U.S. Supreme Court denied certiorari.  (City of Boise v. Martin (U.S., Dec. 16, 2019) 2019 WL 6833408.)

Another Bad Injury Resulting from a Police Chase.

A car fleeing from marked sheriff’s deputy cars struck plaintiff while he was riding on a motorcycle through a green light. The police suspected the persons in the car of theft and the car had been reported as stolen. Plaintiff traveled on the hood of the car for some distance until the car crashed; he suffered serious bodily injury. Plaintiff sued the suspects and the sheriff’s office. The trial court granted the summary adjudication in favor of the sheriff’s office, finding it immune pursuant to Vehicle Code § 17004.7. On appeal, plaintiff argued the policy and training of the sheriff’s office did not comply with the statute. Affirming,, the Court of Appeal noted the sheriff office showed its deputies were trained in accordance with its policy. (Riley v. Alameda County Sheriff’s Office (Cal. App. 1st Dist., Div. 5, Dec. 17, 2019) 2019 WL 6872466.)

Previously We Reported:
The Ministerial Exception Does Not Apply.

Plaintiff was fired from her job as a fifth grade teacher in a Catholic school after she told her employer that she had breast cancer and would need to miss work to undergo chemotherapy. She sued her employer under the Americans with Disabilities Act (42 U.S.C. § 12101). A federal trial court granted the employer’s motion for summary judgment. Reversing, the Ninth Circuit stated: “We hold that, assessing the totality of [plaintiff’s] role at [the Catholic school], the ministerial exception does not foreclose her claim.” The appeals court recognized the U.S. Supreme Court’s holding in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C. (2012) 565 U.S. 171, noting that religious organizations enjoy a broad right to select their own leaders. Finding the present case does not come within the ministerial exception discussed in Hosanna-Tabor, the appeals court found defendant did not hold plaintiff out as a minister and her job duties did not include important religious functions. (Biel v. St. James School (9th Cir., Dec. 17, 2018) 911 F.3d 603.)

The Latest:

The U.S. Supreme Court granted certiorari. (St. James School v. Biel (U.S., Dec. 17, 2019) 2019 WL 6880705.)

Hearsay Statements About Land Boundaries Admitted.

In a real estate transaction dispute, the trial court admitted certain hearsay statements pursuant to Evidence Code § 1323, which states: “Evidence of a statement concerning the boundary of land is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and had sufficient knowledge of the subject, but evidence of a statement is not admissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.” The son of the declarant testified and narrated various statements that the witness heard from his father. Appellant contended  the statements lacked trustworthiness. The appellate court noted that there is no published authority interpreting § 1323 or its trustworthiness requirement. Finding that the trial court did not abuse its discretion, the Court of Appeal stated: “Here, the trial court carefully evaluated all the evidence before it, including the evidence of [the father/declarant’s] and [the son/witness’s] stake in the outcome of the dispute, and was persuaded by the fact that [the father/declarant’s] statements were made well before any boundary dispute arose.” (McDermott Ranch, LLC v. Connolly Ranch, Inc (Cal. App. 3rd Dist., Dec. 17, 2019) 2019 WL 6873444.)

List of Things that Will Never Go Away: #1. Student Debt . . .

Defendant collection agency pursued plaintiff for nonpayment of a 1970’s student loan owed to the United States. Defendant garnished plaintiff’s Social Security payments. Plaintiff sued defendant for violation of the Fair Debt Collections Practices Act (15 U.S.C. § 1692 et seq.). The district court granted summary judgment for defendant. Affirming, the Ninth Circuit stated:  “Defendant was collecting a debt for the United States . . . even if assuming, without deciding, that Defendant is a state actor, we affirm the summary judgment in Defendant’s favor because Defendant did not violate Plaintiff’s due process rights.” (Lima v. Educ. Credit Management Corp. (9th Cir., Dec. 18, 2019) 2019 WL 6885506.)

Deadbeat’s Woes.

Plaintiff sued defendant for violation of the Fair Debt Collections Practices Act (15 U.S.C. § 1692 et seq.) because defendant sent plaintiff a letter attempting to persuade him to pay a time-barred debt. The district court granted summary judgment to the collection agency. Affirming, the Ninth Circuit stated: “We reject this claim because a debt collector is entitled to collect a lawful, outstanding debt even if the statute of limitations has run, so long as the debt collector does not use means that are deceptive or misleading and otherwise complies with legal requirements.” (Stimpson v. Midland Credit Management (9th Cir., Dec. 18, 2019) 2019 WL 6885508.)

No Overtime Wages for Manager.

Defendant operates a national supermarket chain. Plaintiff, a former store manager, alleges defendant failed to pay him overtime wages. The trial court denied class certification. At trial, the parties disputed whether plaintiff spent most of his work time stocking shelves and checking (nonexempt work), or performing managerial tasks such as supervising, training, and disciplining employees, assessing store conditions, and filling out financial reports (work exempt from overtime wages). After fewer than two hours of deliberations, the jury returned a special verdict finding, by a vote of 10-2, that defendant had proven plaintiff was an exempt employee. Affirming, the Court of Appeal stated: “We clarify that a task does not become exempt merely because the manager undertakes it in order to contribute to the smooth functioning of the store.” (Safeway Wage and Hour Cases (Cal. App. 2nd Dist., Div. 4, Dec. 18, 2019) 2019 WL 6954322.)

Primary Assumption of Risk Does Not Apply.

During an inspection, plaintiff, a professional roofer, fell 35 feet through a camouflaged hole in a warehouse roof. The prospective buyer, not the owner, hired plaintiff to inspect the building. For his resulting head injury, a jury awarded plaintiff approximately $875,000 against the owner. The Court of Appeal had to determine whether the trial court correctly refused to instruct on primary assumption of risk where, as here, defendants did not hire or engage plaintiff. Affirming, the Court of Appeal stated: “As a matter of law, primary assumption of risk does not apply in this case because defendants did not hire or engage [plaintiff].” (Gordon v. ARC Manufacturing, Inc. (Cal. App. 4th Dist., Div.1, Dec. 19, 2019) 2019 WL 6907080.)

No Adverse Employment Act Under FEHA.

Plaintiff formerly worked for defendant. He alleged defendant violated the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) by failing to accommodate his two disabilities—asthma and dyslexia—by relocating him to a cleaner and quieter office and providing him with requested computer equipment. The trial court granted summary judgment in favor of the employer. Finding no evidence of an adverse employment action, the Court of Appeal affirmed, rejecting plaintiff’s argument that the employer‘s denial of his accommodation requests constituted an adverse employment act.  (Doe v. Department of Corrections and Rehabilitation (Cal. App. 4th Dist., Div. 2, Dec. 19, 2019) 2019 WL 6907515.)

Phantom Arbitration Agreement Embedded Within an App.

A Washington State resident brought a class action against the owner and operator of a smartphone app. Defendant moved to compel arbitration under an arbitration provision in the app’s terms of use. The app did not require affirmative acknowledgement or agreement of the terms at any point. Nor did the app give notice of the existence of the terms on any screen users had to view before or while using the app. The district court denied the motion to compel. Affirming, the Ninth Circuit stated: “Instead of requiring a user to affirmatively assent, Huuuge chose to gamble on whether its users would have notice of its Terms. The odds are not in its favor. Wilson did not have constructive notice of the Terms, and thus is not bound by Huuuge’s arbitration clause in the Terms. We affirm the district court’s denial of Huuuge’s motion to compel arbitration.” (Wilson v. Huuuge, Inc. (9th Cir., Dec. 20, 2019) 2019 WL 6974430.)

Recording Telephone Calls.

Plaintiff filed a class action alleging defendant violated the California Invasion of Privacy Act (Pen. Code, § 630 et seq.) by recording a phone call without his consent. Plaintiff contends a beep tone at the beginning of the call was not sufficient notice that defendant was recording the call. The trial court dismissed plaintiff’s action after a bifurcated trial. Affirming, the Court of Appeal stated: “We conclude that section 632.7 prohibits only third party eavesdroppers from intentionally recording telephonic communications involving at least one cellular or cordless telephone. Conversely, section 632.7 does not prohibit the participants in a phone call from intentionally recording it. Consequently, [plaintiff] failed to state a claim against [defendant] under section 632.7.” (Smith v. LoanMe, Inc (Cal. App. 4th Dist., Div. 2, Dec. 20, 2019) 2019 WL 6974386.)

When Longstanding Precedent Is Reversed.

Plaintiffs are Washington state employees who work within bargaining units represented by a public employee union. Until the U.S. Supreme Court overruled its longstanding holding in Abood v. Detroit Board of Education (1977) 431 U.S. 209 when it issued Janus v. American Federation of State, County, & Municipal Employees, Council 31 (2018) 138 S. Ct. 2448, plaintiffs had to pay union dues even though they were not union members. Plaintiffs sued the union for the money they were required to pay to finance the union’s collective bargaining activities prior to the Janus decision. The district court ruled in favor of the union. Affirming, the Ninth Circuit stated: “We affirm and hold that private parties may invoke an affirmative defense of good faith to retrospective monetary liability under 42 U.S.C. § 1983, where they acted in direct reliance on then-binding Supreme Court precedent and presumptively valid state law.” (Danielson v. Inslee (9th Cir., Dec. 26, 2019) 2019 WL 7182203.)

Plaintiff May Pursue Action Against His Employer over His Paycheck.

Plaintiff alleged defendant violated Labor Code § 226, subdivision (a) by providing wage statements bearing the acronym CSSG instead of its full name, Countrywide Staffing Solutions Group. Plaintiff also sought to bring those claims under the Private Attorneys General Act (Lab. Code, § 2698 et seq.; PAGA). The trial court dismissed the action. Reversing, the Court of Appeal concluded the complaint stated a cause of action stating: “Noori’s allegation that Countrywide’s wage statements bore only the acronym ‘CSSG,’ an abbreviation of a fictitious business name, adequately supports this claim. We also conclude Noori satisfied the notice requirement for bringing that claim under PAGA.” (Noori v. Countrywide Payroll & HR Solutions, Inc. (Cal. App. 3rd Dist., Dec. 26, 2019.)

Substantial Factor Test.

A motorist was rear-ended on Interstate 80 by an SUV driven by a Union Pacific employee. The motorist lost control of her car, which spun off the freeway and onto the dirt shoulder, where it struck a roadside light pole. The light pole, which was manufactured by Ameron, was designed to “break away” on impact, causing the pole to pass over the impacting vehicle, thereby reducing the force of the collision and concomitant risk of injury. On this occasion, however, the light pole did not break away, but instead remained standing. The motorist sustained multiple injuries, including skull fractures, injuries to her brain and face, a fracture of the right scapula, and bilateral chest trauma. The motorist sued Union Pacific, which  cross-complained against Ameron. The trial court granted Ameron’s motion for summary judgment on the cross-complaint. In support of its motion, Ameron offered no evidence and relied on its argument that the motorist would never be able to prove the light pole caused the injuries because it was undisputed the accident (initial collision) would have occurred anyway. In opposition to the motion, Union Pacific submitted the declaration of an engineer who opined the light pole was incorrectly installed. Reversing the grant of summary judgment, the Court of Appeal stated: “That the light pole was not the cause of the collision . . . does not mean that the pole, in failing to break away, could not have contributed to [the motorist’s] injuries.” Although Ameron might have demonstrated the absence of any triable issue of fact as to the cause of the initial collision, nothing in its separate statement of undisputed facts demonstrated that the light pole could not be shown to have contributed to the motorist’s injuries. Thus, Ameron failed to shift the burden to Union Pacific to present evidence in opposition of its motion.  (Union Pacific Railroad Company v. Ameron Pole Products LLC (Cal. App. 3rd Dist., Dec. 26, 2019) 2019 WL 7184504.)

Previously we reported:
WARNING: Your Sex Therapist Is a Mandated Reporter.

The Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq.; CANRA), requires family therapists and clinical counselors to report to law enforcement or child welfare agencies patients who disclose that they have developed, downloaded, streamed, or accessed child pornography through electronic or digital media. A mandated reporter who fails to report is subject to criminal penalties and license suspension or revocation.  Plaintiffs are counselors and therapists who work with sex addicts. Plaintiffs brought suit because CANRA creates an exception to the patient-psychotherapist privilege by requiring  licensed psychologists and therapists to act as mandated reporters. Plaintiffs claimed their patients typically had no criminal history, had never expressed a sexual preference for children and voluntarily participate in psychotherapy to treat their disorder, which often involves compulsive viewing of all kinds on the internet. The trial court dismissed the action. Affirming, the Court of Appeal stated: “CANRA’s purpose in protecting children is furthered by identifying persons who view child pornographic images because each separate viewing of such an image constitutes actual and separate instances of sexual exploitation. California’s enforcement of laws criminalizing the production and possession of child pornography is rationally related to the state’s goal in protecting children.” (Mathews v. Harris (Cal. App. 2nd Dist., Div. 2, Jan. 9, 2017) 7 Cal.App.5th 334.)

The latest:

Reversing the judgment of the Court of Appeal, the California Supreme Court held: “[W]e hold that plaintiffs have asserted a cognizable privacy interest under the California Constitution and that their complaint survives demurrer. Our holding does not mean the reporting requirement is unconstitutional; it means only that the burden shifts to the state to demonstrate a sufficient justification for the incursion on privacy as this case moves forward. We reverse the Court of Appeal’s judgment and remand for further proceedings to determine whether the statute’s purpose of protecting children is actually advanced by mandatory reporting of psychotherapy patients who admit to possessing or viewing child pornography.” (Mathews v. Becerra (Cal., Dec. 26, 2019) 2019 WL 7176898.)

No Copyright Infringement.

Great Minds is an education-based non-profit organization. It created and copyrighted a math curriculum called “Eureka Math” for grades PreK-12, which it publishes and sells commercially in print form nationwide. It also releases digital files of Eureka Math online for free download to any member of the public under a limited public copyright license. The Licensed Rights include the right to share “Eureka Math” for noncommercial purposes only.  The License defines “share” to provide material to the public by any means or process that requires permission under the Licensed Rights, such as reproduction, public display, public performance, distribution, dissemination, communication, or importation. Great Minds reserves the right to collect royalties for commercial use of Eureka Math. Defendant Office Depot provides copy services.  It made copies of Eureka Math materials for the schools’ use. In this action, Great Minds contends Office Depot owes it royalties for use of its license when it charges schools and school districts for reproduction of its licensed materials. The district court dismissed the action. Affirming, the Ninth Circuit stated: “Office depot did not itself become a licensee.” Its activities remain within the ambit of the licensees – the schools and school districts (Great Minds v. Office Depot (9th Cir., Dec. 27, 2019) 2019 WL 7206433.)

No Promises a Diet Drink Will Result in Lost Weight.

Plaintiff sued defendant under various California consumer fraud statutes because it brands Diet Dr Pepper using the word “diet.” Relying on several studies, plaintiff contends the artificial sweetener used in the product, aspartame, actually is “likely to cause weight gain” and “poses no benefit for weight loss,” rendering the promise allegedly inherent in the word “diet” false and misleading. The district court dismissed the action. Affirming, the Ninth Circuit stated: “[Plaintiff] has failed to sufficiently allege that reasonable consumers understand the word “diet” in Diet Dr Pepper’s brand name to promise weight loss, healthy weight management, or other health benefits. Accordingly, [plaintiff] has not sufficiently alleged that Diet Dr Pepper’s labeling is false or misleading and dismissal was therefore proper.” (Becerra v. Dr Pepper/Seven Up (9th Cir., Dec. 30, 2019) 2019 WL 7287554.)

Plaintiff May Pursue Whistleblower Retaliation Claim.

Plaintiff was assigned as the lead investigator to look into allegations of abuse brought by a group of children against their former foster parent. Plaintiff discovered the foster home had a prior history of child abuse and neglect, but the county database did not correctly reveal that history because of typographical errors in past reports and database entries. Plaintiff informed his manager of the database errors. Plaintiff was placed on administrative leave. He was terminated a few months later. Following plaintiff’s loss in the administrative process, plaintiff contends he was fired in retaliation for reporting the errors in the database. A federal trial court granted summary judgment to the county. The Ninth Circuit affirmed in part and reversed in part, finding plaintiff’s 42 U.S.C. § 1983 claim was precluded because he “had a full opportunity to litigate the propriety of his termination before the administrative agency.” The hearing officer considered and rejected his arguments.  However, dismissal of his California Labor Code § 1102.5 claim for retaliation was reversed under Taswell v. The Regents of the University of California (2018) 23 Cal.App.5th 343, which held an employee’s whistleblower claim was not barred by administrative agency’s order. (Bahra v. County of San Bernardino (9th Cir., Dec. 30, 2019) 2019 WL 7287575.) \

First Step of Anti-SLAPP Motion.

Defendants solicited and obtained $180,000 in investments from plaintiff to produce a documentary film on the refugee crisis in Syria. Plaintiff later sued, claiming that no “significant” or “substantial” work had been performed on the film, and that defendants had breached their contractual obligations, defrauded him of his investments, and used his investments for purposes unrelated to the film. Defendants filed a special motion to strike the complaint or portions thereof under the anti-SLAPP law (Code Civ. Proc., § 425.16), claiming the complaint targeted their protected speech activity in producing the documentary. The trial court denied the motion at the first stage of the anti-SLAPP analysis, finding the complaint did not arise from acts in furtherance of defendants’ exercise of their right of free speech. Reversing, the Court of Appeal stated: “We conclude defendants have made a prima facie showing that the complaint targets conduct falling within the so-called ‘catchall’ provision of the anti-SLAPP law. (§ 425.16, subd. (e)(4).) Specifically, defendants’ solicitation of investments from plaintiff and their performance of allegedly unsatisfactory work on the uncompleted documentary constituted activity in furtherance of their right of free speech in connection with an issue of public interest. Accordingly, the trial court erred in denying defendants’ motion at the first stage of the anti-SLAPP analysis. We reverse and remand the matter for further proceedings.” (Ojjeh v. Brown (Cal. App. 1st Dist., Div. 3, Dec. 31, 2019) 2019 WL 7343098.)

Prevailing Party Attorney Fees.

Plaintiff Patel contracted with defendant Mercedes-Benz to lease a vehicle. During the lease period, the vehicle’s navigation system experienced recurring problems, which defendant was unable to repair. Patel sued defendant under the Song-Beverly Consumer Warranty Act (Civ. Code, §§ 1790-1795.8.) At trial, the jury found the vehicle had a substantial impairment, and defendant failed to repair or replace the vehicle, and awarded damages to plaintiff. This otherwise straightforward case has a twist, however: Patel did not lease the vehicle for his own use. Instead, he leased it for a friend, Fayaz, who was the primary driver. Patel paid the lease payments to defendant, and Fayaz reimbursed Patel. Because Patel was the lessee and the party to the express warranty, Patel alone brought suit.  Defendant moved for nonsuit on the basis that Patel did not suffer any damages because Fayaz reimbursed him for the lease payments. The trial court denied defendant’s motion for nonsuit, but ordered that Fayaz be added to the case as a plaintiff. When the jury awarded damages, it awarded them solely to Fayaz. Patel and Fayaz then moved for attorney fees as prevailing parties under the Act. The trial court granted the motion as to Fayaz only, and limited the fee award to fees incurred while Fayaz was a party to the case—from the penultimate day of trial onward. The Court of Appeal reversed, stating: “That the jury awarded fees to Fayaz rather than Patel did not support the trial court’s holding that Patel was not a prevailing party entitled to attorney fees. Therefore, the order on the attorney fee motion is reversed, and the case is remanded for a hearing to determine a reasonable fee award under section 1794, subdivision (d).” (Patel v. Mercedes-Benz USA, LLC (Cal. App. 2nd Dist., Div. 4, Dec. 31, 2019) 2019 WL 7372647.)

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