Litigation Update: January 2021

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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, Julia C. Shear Kushner
  • Editors, Dean Bochner, Reuben Ginsburg, Jessica Riggin, and David Williams
No Qualified Immunity for Police Officer Who Sought Destruction of Man’s Firearms Without Notice.

Over decades plaintiff amassed a collection of more than 400 firearms. Los Angeles Police Department (LAPD) officers executed a search warrant and seized the collection. Plaintiff spent the next decade trying to recover the firearms, asserting he owned them lawfully. LAPD voluntarily returned about 80, but kept the rest on the ground that plaintiff had not provided sufficient proof of ownership. While the parties were negotiating, an LAPD officer sought a court order granting permission to destroy the firearms without giving plaintiff notice. Consequently, plaintiff did not have an opportunity to contest the officer’s application. The court granted the request and LAPD subsequently destroyed the firearms. Plaintiff sued under 42 U.S.C. § 1983, asserting, among other claims, a Fourteenth Amendment due process violation. The district court granted summary judgment for the defendants sued in their individual capacities. Reversing in part, the Ninth Circuit held that the officer who applied for the destruction order without giving plaintiff notice was not entitled to qualified immunity. (Wright v. Beck (9th Cir., Dec. 1, 2020) 981 F.3d 719.)

Public Charge Rule.

The Immigration and Nationality Act provides that “[a]ny alien who, . . . in the opinion of the [Secretary of Homeland Security] at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” (8 U.S.C. § 1182(a)(4)(A).) The Public Charge Rule, promulgated by the U.S. Department of Homeland Security (DHS) in 2019, prevents a non-citizen who depends on the government for survival, either by receipt of income or confinement in a public institution, from admission into the country. Plaintiffs are states and municipalities that allege the Public Charge Rule is causing them to suffer continuing financial harm, because lawful immigrants eligible for federal cash, food, and housing assistance withdraw from these programs to avoid the rule’s impact, and instead turn to assistance programs administered by state and local entities. The Ninth Circuit affirmed an injunction barring enforcement of the rule, concluding it was arbitrary, capricious, and contrary to law, and observing that “DHS adopted the Rule, reversing prior, longstanding public policy, without adequately taking into account its potential adverse effects on the public fisc and the public welfare.” (City and County of San Francisco v. United States Citizenship and Immigration Services (9th Cir., Dec. 2, 2020) 981 F.3d 742.)

Monetary Sanctions for Abuse of the Discovery Process.

Defendants moved for terminating and monetary sanctions against plaintiffs and their counsel under Code of Civil Procedure §§ 128.7 and 2023.030 based on improper litigation conduct. The trial court issued terminating sanctions, but not monetary sanctions. Defendants appealed. Reversing in part, the Court of Appeal concluded that the trial court abused its discretion by denying defendants’ request for monetary sanctions and remanded the matter to the trial court with directions to award defendants the amount of reasonable expenses, including attorney fees, they incurred as a result of plaintiffs’ abuse of the discovery process. However, the appellate court also concluded that defendants did not carry their burden of showing that the trial court erred by declining to impose sanctions on plaintiffs’ former lawyers, and therefore affirmed that portion of the order. (Kwan Software Engineering, Inc. v. Hennings (Cal. App. 6th Dist., Dec. 2, 2020) 58 Cal.App.5th 57.)

Review of Factual Finding Made Under Clear and Convincing Evidence Standard.

The trial court appointed a limited conservator for an 18-year-old autistic girl, a ruling to which the clear and convincing evidence standard applies under Probate Code § 1801, subdivision (e). Affirming, the Court of Appeal quoted from the California Supreme Court’s decision in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1012: “ ‘[A]n appellate court must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.’ ” (Conservatorship of O.B. (Cal. App. 2nd Dist., Div. 6, Dec. 2, 2020) 58 Cal.App.5th 87.)

Derivative U Visa.

Plaintiff is a native and citizen of Mexico who came to the United States with her family at age six. When she was twelve, a stranger raped her at knife-point in her home. She cooperated with law enforcement officials. In 2013, she filed a Form I-918 seeking a U visa, which is designed to grant legal status to certain non-citizen victims of crime who assist law enforcement. Two years later, she married another native and citizen of Mexico and was subsequently granted U-visa status. In 2016, she filed a Form I-918, Supplement A, which is a petition for a derivative U visa for her husband. The government denied the petition on the ground that plaintiff was not married when she filed her initial petition in 2013, and 8 C.F.R. § 214.14(f)(4) requires that spouses be married at the time the Form I-918 is filed. Plaintiffs then brought this action for declaratory and injunctive relief. The district court granted summary judgment for the government, ruling that Congress did not directly address the question of when a marital relationship must exist for a spouse to be eligible for derivative U-visa status and that the regulation reasonably interprets the governing statute. Reversing, the Ninth Circuit concluded that “8 C.F.R. § 214.14(f)(4) is not a permissible interpretation of the governing statute insofar as it requires that spouses be married when the Form I-918 is filed, rather than when the principal petition is granted.” (Medina Tovar v. Zuchowski (9th Cir., Dec. 3, 2020) 982 F.3d 631.)

Consumer Takes a Stand Without Standing.

Plaintiff, who purchased and consumed defendant’s popcorn, alleged that defendant engaged in unfair practices, created a nuisance, and breached the warranty of merchantability by including as an ingredient in its popcorn partially hydrogenated oils, which are an unsafe food additive that causes heart disease, diabetes, cancer, and other ailments. The district court dismissed the action for lack of constitutional standing, concluding that plaintiff failed to sufficiently allege injury in fact. Affirming, the Ninth Circuit held that plaintiff “has not plausibly alleged that, as a result of her purchase and consumption of [defendant’s popcorn], she suffered economic or immediate physical injury, or that she was placed at substantial risk of adverse health consequences.” (McGee v. S-L Snacks National (9th Cir., Dec. 4, 2020) 982 F.3d 700.)

Arbitration Agreement Inconspicuous.

A commercial contract was printed on a single double-sided page, with the only place designated for the parties’ signature located on the front. The first paragraph on the front page stated, “THE PARTIES HEREBY AGREE UPON THE TERMS SET FORTH BELOW AND UPON THE REVERSE SIDE HEREOF.” Paragraphs 5 to 21 of the agreement were located on the back side of the page and appeared in eight-point type. Paragraph 15 contained an arbitration agreement with no heading, boldface, or italics. After a dispute arose concerning plaintiff’s performance under the contract, plaintiff petitioned to compel arbitration. The trial court denied the petition, finding that defendant “suffered a lack of ‘procedural due process’ because the arbitration agreement was ‘inconspicuous.’ ” Affirming, the Court of Appeal stated: “If the contract is not intentionally deceptive, it has that effect. There was simply no agreement to arbitrate.” (Domestic Linen Supply Co., Inc. v. L J T Flowers, Inc. (Cal. App. 2nd Dist., Div. 6, Dec. 4, 2020) 58 Cal.App.5th 180.)

“I went to a fight the other night, and a hockey game broke out,” Rodney Dangerfield.

Plaintiff, a recreational ice hockey player in a no-check league, sued a fellow player for negligence and intentional tort after a violent, on-ice collision left plaintiff with serious injuries. Defendant moved for summary judgment based on the primary assumption of risk doctrine. The trial court granted the motion, concluding that checking is an inherent risk of hockey. Reversing, the Court of Appeal concluded there was a triable issue of material fact as to whether defendant breached a limited duty of care owed to plaintiff not to increase the risks over and above those inherent in the game.  The appellate court concluded that the evidence also raised triable issues of material fact as to the intentional tort and punitive damages claims. (Szarowicz v. Birenbaum (Cal. App. 1st Dist., Div. 2, Dec. 4, 2020) 58 Cal.App.5th 146.)

Tolling of Statute of Limitations in Wage and Hour Claim.

Prior to plaintiff’s filing a class action alleging wage and hour claims, two other class actions were filed with the same allegations. The first was voluntarily dismissed. In the second, the trial court denied a motion for class certification. In the present third action against defendant, the trial court granted summary judgment for defendant, citing the statute of limitations. Reversing, the Court of Appeal noted the two prior actions gave defendant notice of the potential claims, so there was no prejudice resulting from the timing of the filing of the present action. The appeals court concluded the limitations periods were tolled during proceedings in the first two actions. (Hildebrandt v. Staples the Office Superstore, LLC (Cal. App. 2nd Dist., Div. 3, Dec. 4, 2020) 58 Cal.App.5th 128.)

Federal Court Certifies Labor Code Evidentiary Question to the California Supreme Court.

Plaintiff reported his supervisor for directing him to send faulty product to a particular customer. After plaintiff’s termination, he sued his employer for violating California Labor Code § 1102.5. The district court granted the employer’s motion for summary judgment after applying the test set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802. That test requires a plaintiff to first establish, by a preponderance of the evidence, a prima facie case of retaliation. If the plaintiff can do so, the defendant must carry a burden of production to articulate some legitimate, nondiscriminatory reason for the adverse employment action. On appeal, plaintiff contended the trial court erred in applying the McDonnell Douglas test, and argued it should have applied the evidentiary standard set forth in Labor Code § 1102.6 (“. . . once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5”). Thus, pursuant to California Rule of Court 8.548, the Ninth Circuit certified the following question to the California Supreme Court: “Does the evidentiary standard set forth in section 1102.6 of the California Labor Code replace the McDonnell Douglas test as the relevant evidentiary standard for retaliation claims brought pursuant to section 1102.5 of California’s Labor Code?” (Lawson v. PPG Architectural Finishes, Inc. (9th Cir., Dec. 7, 2020) 982 F.3d 752.)

Offshore Vessel Subject to California Labor Laws.

Petitioners, Louisiana-based employers, employed real parties in interest, non-California residents, to work as crew members on a vessel that provided maintenance services to offshore oil platforms. The vessel docked at a California port and sailed through California waters to the platforms located outside the state’s boundaries. Crew members alleged that petitioners violated numerous provisions of California’s wage and hour laws. Petitioners moved for summary judgment on the theories that: (1) Louisiana rather than California law governed these employment relationships; and (2) that the federal Fair Labor Standards Act (29 U.S.C. § 203(o)) preempted California law with respect to these employees. The trial court denied the motion because petitioners had neither demonstrated that Louisiana law should apply nor that California law was preempted. Considering the holdings in in light of Ward v. United Airlines, Inc. (2020) 9 Cal.5th 732 and Oman v. Delta Air Lines, Inc. (2020) 9 Cal.5th 762, the Court of Appeal concluded the trial court correctly denied petitioner’s motion for summary judgment and denied the petition for writ of mandate. (Gulf Offshore Logistics, LLC v. Superior Court of Ventura County (Cal. App. 2nd Dist., Div. 6, Dec. 7, 2020) 58 Cal.App.5th 264.)

Reading Your Spouse’s Emails? You May Be Violating the Stored Communications Act.

Plaintiff and defendant were married for ten years. During the marriage, defendant “regularly and routinely” sought access to plaintiff’s cell phone, text messages, e-mail, computer, and other electronic equipment. As their relationship deteriorated and she became unhappy with his behavior, she told him to stop looking at her messages and attempted to block his access by changing her iPhone passcode. The phone could be accessed only with her thumbprint or with the new passcode, which she did not share with him. One night while she slept, he used her thumbprint to unlock her phone, accessed her work email through Microsoft Exchange, and forwarded approximately ten e-mails to himself. When she moved out of the family home, plaintiff continued her efforts to stop defendant’s invasions of privacy by changing cell phone carriers and purchasing a new iPhone. His conduct continued. He accessed and read her work e-mail on a formerly shared iPad and used the information he learned to his advantage during the couple’s divorce proceedings. This conduct, some of which he admitted, formed the basis of the case that plaintiff and her law firm employer later initiated against him and his divorce lawyer. Plaintiff sued, alleging a cause of action under the Stored Communications Act (18 U.S.C. § 2701 et seq.; SCA). Defendant moved for summary judgment, contending that plaintiff lacked evidence that the e-mails he accessed were in backup storage within the meaning of the SCA. In opposition, she submitted the declaration of an employee of the information technology company that provided data protection services to her law firm. The declaration stated the expert concluded that an device other than her cell phone or home computer logged in using her credentials in both 2017 and 2018, and it also described the private server that the expert and his company maintained for backup storage of the firm’s emails. The district court granted summary judgment for defendant. Reversing, the Ninth Circuit concluded the IT expert declaration created a genuine issue of material fact. (Clare v. Clare (9th Cir., Dec. 8, 2020) 982 F.3d 1199.)

Discrimination Claim by HIV/AIDS Patients to Continue.

Doe plaintiffs are individuals living with HIV/AIDS who have employer-sponsored health plans, and who rely on those plans to obtain prescription drugs. Until recently, Does could fill their prescriptions at community pharmacies, where they were able to consult with knowledgeable pharmacists who were familiar with their personal medical histories and who could make adjustments to their drug regimens to avoid dangerous drug interactions or remedy potential side effects. Does allege these services, among others, are critical to HIV/AIDS patients, who must maintain a consistent medication regimen to manage their disease. Now, Does’ pharmacy benefits manager requires all health plan enrollees to obtain specialty medications, including HIV/AIDS drugs, through its designated specialty pharmacy for those benefits to be considered “in-network.” The in-network specialty pharmacy dispenses specialty drugs only by mail or drop shipments to CVS pharmacy stores for pickup. Does allege this program violates the anti-discrimination provisions of the Affordable Care Act, the Americans with Disabilities Act, and the California Unruh Civil Rights Act; denies them benefits to which they are entitled under the Employee Retirement Income Security Act of 1974; and violates California’s Unfair Competition Law. The district court granted defendants’ motion to dismiss. The Ninth Circuit affirmed dismissal of all but the contentions under the Affordable Care Act, finding the allegations are sufficient to proceed on their discrimination claim because they claim the program discriminates against HIV/AIDS patients who are denied meaningful access to the benefit of the same quality of pharmaceutical care as non-HIV-AIDS patients. (Doe v. CVS Pharmacy, Inc. (9th Cir., Dec. 9, 2020) 982 F.3d 1204.)

Jurors From a Cross-Section of the Community.

Pantos v. City and County of San Francisco (1984) 151 Cal.App.3d 258, held that a court’s master list of qualified jurors was a public record. Petitioner here is a criminal defendant who sought discovery of records of the county’s master list of prospective jurors in connection with his claim that juries in the county are not selected from a fair cross-section of the community. The trial court denied the request. Analyzing the situation, the Court of Appeal wrote that it was “not persuaded that, as a general matter, prospective jurors’ privacy rights overcome the presumption of public access to names and zip codes appearing on master and qualified jury lists.” Issuing a writ of mandate, the appellate court stated: “In sum, we conclude that master and qualified jury lists—at least with respect to the names and zip codes on the lists—are disclosable as public records.” The trial court was ordered to “enter a new order granting Defendant’s renewed discovery motion as to the master and qualified jury lists.” (Alfaro v. Superior Court of Marin County (Cal. App. 1st Dist., Div. 5, Dec. 9, 2020) 58 Cal.App.5th 371.)

SCOTUS Says ERISA Does Not Preempt a State’s Curtail of Low Pharmacy Reimbursement.

Pharmacy Benefits Managers (PBMs) serve as intermediaries between prescription-drug plans and the pharmacies that beneficiaries use. When a beneficiary goes to a pharmacy to fill a prescription, the pharmacy checks with a PBM to determine coverage and copayment information. After the beneficiary leaves, the PBM reimburses the pharmacy for the prescription, less the amount of the beneficiary’s copayment. The prescription-drug plan, in turn, reimburses the PBM. The amount a PBM “reimburses” a pharmacy for a drug is not necessarily tied to the wholesale purchase price. In 2015, Arkansas adopted Act 900 in response to concerns that the reimbursement rates set by PBMs were often too low to cover pharmacies’ costs, and that many pharmacies, particularly rural and independent ones, were at risk of losing money and closing. Arkansas’s statute requires PBMs to reimburse Arkansas pharmacies at a price equal to or higher than that which the pharmacy paid to buy the drug from a wholesaler. The question presented here is whether the Employee Retirement Income Security Act of 1974 (29 U.S.C. §1001 et seq.; ERISA) preempts the Arkansas statute. The U.S. Supreme Court held that the Act has neither an impermissible connection with nor reference to ERISA and is therefore not preempted. (Rutledge v. Pharmaceutical Care Management Association. (U.S., Dec. 10, 2020) 141 S.Ct. 474.)

Rapes in the Military Have No Statute of Limitations.

Three armed forces service members were convicted of committing rapes in 1998, 2000, and 2005. During the relevant periods, the Uniform Code of Military Justice (UCMJ) provided that rape could be punished by death. In another provision, the UCMJ provided that an offense punishable by death could be tried and punished at any time without limitation. At the same time, the stated statute of limitations for non-capital offenses in the UCMJ was five years. Here, the government argued to the U.S. Supreme Court that “punishable by death” means capable of punishment by death under the penalty provisions of the UCMJ, and that since the UCMJ said that rape could be punished by death, it follows that there was no time limit for filing rape charges against the three service members. But the three accused argued that because the court held in Coker v. Georgia, 433 U. S. 584, 592 (1977), that the Eighth Amendment forbids a death sentence for the rape of an adult woman, they could not, in fact, have been sentenced to death, and therefore the statute of limitations for their crimes was the 5-year statute governing non-capital offenses. The Court of Appeals for the Armed Forces (CAAF) reversed the convictions, applying the 5-year statute of limitations. Reversing, the U.S. Supreme Court stated: “[W]e are convinced that ‘punishable by death’ is a term of art that is defined by the provisions of the UCMJ specifying the punishments for the offenses it outlaws. And under this interpretation, respondents’ prosecutions were timely.” (United States v. Briggs (U.S., Dec. 10, 2020) 141 S.Ct. 467.)

Lack of Standing.

The Delaware Constitution contains a political balance requirement for its judiciary: no more than a bare majority of the judges on any of its five major courts may belong to any one political party. With respect to three of those courts, it also requires that the remaining judges belong to “the other major political party.” Plaintiff, a registered independent, claimed these requirements violated his freedom of association rights by precluding him from becoming a judge unless he became a Democrat or a Republican. The U.S. Supreme Court ordered the case dismissed for lack of standing because the plaintiff could not show that he was “able and ready” to apply for a judgeship. While he claimed that he would have applied, he did not show any preparatory effort to apply for a judicial opening, and the context of the case suggested an abstract grievance rather than an actual desire to become a judge. For instance, while plaintiff had previously been a registered Democrat, he did not apply for any judicial vacancies. Instead, he read an article arguing that the political balance requirement was unconstitutional, changed his political affiliation to independent, and then filed suit. (Carney v. Adams (U.S., Dec. 10, 2020) 141 S.Ct. 493.)

“America’s answer to the intolerant man is diversity—the very diversity which our heritage of religious freedom has inspired,” Robert Kennedy.

Three practicing Muslims claim the FBI placed them on the No Fly List in retaliation for their refusal to act as informants against their religious communities. They sued various agents in both their official and individual capacities for money damages. The question before the U.S. Supreme Court was whether the term “appropriate relief” set forth in the Religious Freedom Reformation Act (42 U.S.C. § 2000bb et seq; RFRA) includes claims for money damages against government officials in their individual capacities. Holding that money damages are available, the Court stated: “there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so. But there are no constitutional reasons why we must do so in its stead. . . . RFRA’s express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities.” (Tanzin v. Tanvir (U.S., Dec. 10, 2020) 141 S.Ct. 486.)

“The trial court abused its discretion by failing to limit the expert’s opinion to what was actually supported by the material the expert relied on,” Court of Appeal.

An expert witness in a multiple murder prosecution testified that bullet casings recovered from two separate crime scenes were almost certainly fired from the same gun. The method used to reach that conclusion—visually comparing marks on the casings—was not necessarily “so foreign to everyday experience that jurors would have unusual difficulty evaluating it,” so it was not necessarily subject to Kelly/Frye gatekeeping procedures. However, even “[e]xpert evidence that does not require a Kelly analysis must still be admissible under Evidence Code section 801.” Here, the expert testified that his conclusions were virtually certain based merely on “supervisor approval” and a “broad reference to having ‘done numerous studies.’ ” Reversing the murder convictions, the Court of Appeal found that this testimony was not definitive enough to say the various bullets were almost certainly fired from the same gun. (People v. Azcona (Cal. App. 6th Dist., Dec. 10, 2020) 58 Cal.App.5th 504.)

Defendant Killed Plaintiff’s Tree.

Defendants purchased a vacant lot in Big Bear Lake, with a “massive” pine tree straddling the property line. The city approved defendant’s plans to build a house on the lot, even though, under the city’s development code, almost any house would be too close to the tree’s “critical root zone.” During construction, workers digging a trench cut the roots of the tree and the tree died. The neighbors sued for trespass and negligence. After a bench trial, the court found $73,265 in damages, which it trebled pursuant to Civil Code § 3346 governing damages to timber. But the Court of Appeal found that, while the defendants may have committed common law trespass,  “not just any common law trespass will do” when it comes to trees. Under Scholes v. Lambirth Trucking Co. (2020) 8 Cal.5th 1094, such a claim requires a “timber trespass,” which includes an intentional crossing of boundary lines onto the land of another to injure timber. Accordingly, the appellate court affirmed as to negligence, but found that trebling under Civil Code § 3346 was unavailable. The appellate court also found the damages calculation was excessive and reduced it to $37,000. (Russell v. Man (Cal. App. 4th Dist., Div. 2, Dec. 11, 2020) 58 Cal.App.5th 530.)

“Thousands have lived without love, not one without water,” W.H. Auden.

 In the Southwestern United States, the Pecos River begins near Santa Fe, New Mexico, and winds its way south for hundreds of miles through New Mexico and Texas before flowing into the Rio Grande River on the Texas-Mexico border. The 1949 interstate Pecos River Compact provides for equitable apportionment of the use of the River’s water by New Mexico and Texas. The dispute in this original jurisdiction case started in 2014, when a tropical storm hit the Pecos River Basin. To prevent flooding, Texas asked New Mexico to temporarily store water from the Pecos River that would otherwise flow into Texas. New Mexico agreed to do so. A few months later, New Mexico released the water to Texas. But, in the interim, some water evaporated. The question presented to the U.S. Supreme Court was whether, under the Pecos River Compact, New Mexico should receive delivery credit for the evaporated water even though that water was not delivered to Texas. The high court held that New Mexico’s obligation to deliver water to Texas was reduced by the amount that evaporated during storage in New Mexico’s reservoir. (Texas v. New Mexico (U.S., Dec. 14, 2020) 141 S.Ct. 509.)

Federal Appeals Court Erred in Granting Habeas Relief in State Court Death Penalty Case.

The Antiterrorism and Effective Death Penalty Act of 1996 restricts the power of federal courts to grant writs of habeas corpus based on claims that were adjudicated on the merits by a state court. (28 U.S.C. § 2254(d).) A federal habeas court may not disturb the state court’s decision unless its error lies “beyond any possibility for fairminded disagreement.” Harrington v. Richter (2011) 562 U.S. 86, 103. Here, the Arizona state court convicted defendant of premeditated murder and sentenced him to death. Seeking postconviction relief, defendant argued that his trial lawyer failed to investigate mitigating circumstances: (1) that he was addicted to alcohol and gambling; (2) that he had suffered a heart attack about six weeks before the murder; (3) that he was bipolar; and (4) that members of his family had suffered from similar addictions and illnesses, which affected his childhood. Habeas relief was denied in Arizona state courts as well as in the federal district court, but granted by the Ninth Circuit. Reversing, the U.S. Supreme Court found that the Ninth Circuit had “only tack[ed] on a perfunctory statement at the end of its analysis asserting that the state court’s decision was unreasonable. . . . Indeed, the panel repeatedly reached conclusions . . . without ever framing the relevant question as whether a fairminded jurist could reach a different conclusion.” (Shinn v. Kayer (U.S., Dec. 14, 2020) 141 S.Ct. 517.)

Pension Reduced After Public Employee Was Convicted of a Felony.

Plaintiff retired from the Los Angeles County Fire Department. Shortly thereafter he was convicted of a federal felony. The Los Angeles County Employees Retirement Association reduced his vested retirement benefits under the Public Employees’ Pension Reform Act of 2013 (Gov. Code, § 7522 et seq.), after determining plaintiff’s conduct was committed in the scope of his official duties. Although it remanded the matter to afford the plaintiff greater due process rights, the Court of Appeal stated: “[S]ection 7522.72’s public purpose—to protect the pension system from abusive practices of faithless public employees and preserve public trust in government—justifies any concomitant diminution in [plaintiff’s] pension rights.” (Hipsher v. Los Angeles County Employees Retirement Association (Cal. App. 2nd Dist., Div. 4, Dec. 15, 2020) 58 Cal.App.5th 671.)

Timing Is Everything.

Two ambulance employees filed a class action against several ambulance entities, claiming the entities violated wage and hour laws by requiring the employees to remain on call during their rest breaks. One day after the court denied plaintiffs’ class certification motion, voters passed Proposition 11, which required ambulance employees to remain reachable by a communications device throughout their work shifts, including on rest breaks. Dismissing the appeal, the Court of Appeal found that Proposition 11 was retroactive, and that the plaintiffs’ claims had, therefore, been rendered moot. (Calleros v. Rural Metro of San Diego, Inc. (Cal. App. 4th Dist., Div. 1, Dec. 15, 2020) 58 Cal.App.5th 660.)

Requirement to Identify a Trade Secret with Reasonable Particularity.

Plaintiff claimed two trade secrets relating to medical billing. Code of Civil Procedure § 2019.210 specifies that, before commencing discovery, the party alleging the misappropriation must “identify” the trade secret with “reasonable particularity.” After plaintiff made that designation, defendant moved for summary judgment. When opposing the motion, plaintiff asked to add another trade secret. The trial court granted summary judgment for defendant. Affirming, the Court of Appeal explained: “ [T]rade secret owners themselves spell out the boundaries of their property claims, which they typically specify only in the course of litigation. . . . ¶ Until a plaintiff does so, the opposing party and the court literally may not know what the plaintiff is talking about. . . . ¶ The defense typically will aim its summary judgment motion at the trade secret identification the plaintiff served under Code of Civil Procedure section 2019.210. . . . ¶ What the plaintiff cannot do is to wait until the defense has loosed its arrow at the bullseye, then move the target, and finally claim victory when the defense’s arrow misses the mark. . . . ¶ In sum, Coast waited too long to suggest it had a new trade secret it wanted to add to its case.” (Coast Hematology-Oncology Associates Medical Group, Inc. v. Long Beach Memorial Medical Center (Cal. App. 2nd Dist., Div. 8, Dec. 15, 2020) 58 Cal.App.5th 748.)

Defendant Did Not Show Wife and Son Acted Within Their Authority as Agents When They Signed the Arbitration Agreements.

Decedent’s wife and son signed separate arbitration agreements when he was admitted to defendant’s hospitals. Following his death, decedent’s widow sued defendant for negligence and wrongful death, and defendant moved to compel arbitration. The trial court denied the motion after concluding defendant did not show the wife and son acted within their authority as decedent’s agents when they signed the agreements. On appeal, defendant contended the trial court discriminated against arbitration contracts. The Court of Appeal affirmed, stating: “In reaching that conclusion, the court relied on generally applicable law conditioning the validity of an arbitration agreement executed by a purported agent—like any other contract executed by a purported agent— on an adequate evidentiary showing that the agreement falls within the scope of authority, if any, conferred by the principal. The court did not apply this law in a fashion disfavoring arbitration contracts, and thus did not violate the FAA.”  (Garcia v. KND Development 52, LLC (Cal. App. 2nd Dist., Div. 4, Dec. 16, 2020) 58 Cal.App.5th 736.)

Sanctions for a Frivolous Appeal.

A trial court confirmed an arbitration award. On appeal, the losing party contended the arbitrator failed to make a required disclosure that decades ago he was the founding member of an organization active in LBGTQ issues because the instant case included issues of inappropriate sexual conduct. The Court of Appeal held the arbitrator was not required to disclose his prior relationship with the organization, explaining the instant arbitration had nothing to do with LBGTQ issues. The losing party also contended that the arbitrator erred in making certain evidentiary rulings. The appeals court disagreed because there was nothing in the record to support the contentions, and affirmed the judgment. The court found the appeal to be frivolous and ordered $56,000 in sanctions, noting: “The Court of Appeal is not an appropriate forum to peddle far-fetched conspiracy theories, laced with sexism and homophobia, disguised as a legitimate appeal. Nor is it a forum to launch personal attacks against an arbitrator.”(Malek Media Group LLC v. AXQG Corp. (Cal. App. 2nd Dist., Div. 3, Dec. 16, 2020) 58 Cal.App.5th 817.)

Waiver and Equitable Estoppel.

Plaintiff is an out of network medical provider. Plaintiff contacted defendant health plan prior to surgery after 14 patients assigned to plaintiff the rights to collect benefits under defendant’s plan. Each time, defendant represented to plaintiff: “that benefits were paid on an out-of-network basis at a ‘typical’ rate of 50% to 100% of the claim and provided additional information such as the deductible amount and the patient’s account type.” When plaintiffs submitted bills for the 14 surgeries, defendant either denied them or paid less than 10 percent, asserting for the first time that the patients’ plans contained anti-assignment clauses. Plaintiff sued and the district court dismissed the action. Reversing, the Ninth Circuit noted that if defendant had stated in any of the telephone communications that it intended to rely upon an anti-assignment clause, plaintiff would not have performed the surgeries, and held that plaintiff had adequately pled waiver and equitable estoppel.  (Beverly Oaks Physicians Surgical Center, LLC v. Blue Cross and Blue Shield of Illinois (9th Cir., Dec. 17, 2020) 2020 WL 7393554.)

The President’s Memorandum Stating Aliens Should Be Excluded From the Census.

The President issued a memorandum to the Secretary of Commerce that aliens without lawful status be excluded from the apportionment base for the 2020 census conducted pursuant to U. S. Const., Art. I, §2, cl. 3. Several states challenged the memorandum. A three-judge district court in New York held that the plaintiffs had standing to proceed in federal court because the memorandum was chilling aliens and their families from responding to the census, thereby degrading the quality of census data used to allocate federal funds and forcing some plaintiffs to divert resources to combat the chilling effect. The U.S. Supreme Court reasoned, “But the President qualified his directive by providing that the Secretary should gather information ‘to the extent practicable’ and that aliens should be excluded ‘to the extent feasible.’ 85 Fed. Reg. 44680. Any prediction how the Executive Branch might eventually implement this general statement of policy is ‘no more than conjecture’ at this time.” In ordering the judgment vacated, the United States Supreme Court held: “The judgment of the District Court is vacated, and the case is remanded with instructions to dismiss for lack of jurisdiction.” (Trump v. New York (U.S., Dec. 18, 2020) 141 S.Ct. 530.)

“Sometimes the questions are complicated and the answers are simple,” Dr. Seuss.

Plaintiffs sued defendants for copyright and trademark infringement of Dr. Seuss’s “Oh, the Places You’ll Go!” (Go!),  after defendants presented an episode of Star Trek titled “Oh, the Places You’ll Boldly Go!” (Boldly!). Defendants contended their use was parody and fair use. The district court granted summary judgment for defendants on both claims. Affirming in part and reversing in part, the Ninth Circuit explained: “This appeal involves two different contexts in which an author’s expression collides with the intellectual property rights in existing works. Here, the results for the copyright and the trademark claims diverge. Although Boldly did not make fair use of the copyrighted expression in Go!, Boldly’s use of Go! trademarks was permitted under the Rogers test [(Rogers v. Grimaldi (1989) 875 F.2d 994, 999)]. Accordingly, we affirm the district court’s Rule 12(c) dismissal and summary judgment in favor of ComicMix as to the trademark infringement claim, but reverse and remand the district court’s grant of summary judgment in favor of ComicMix as to copyright fair use.” (Dr. Seuss Enterprises, L.P. v. ComicMix LLC (9th Cir., December 18, 2020) 2020 WL 7416324.)

Subrogation Claim Against Non-Builder Manufacturer of a Plumbing Part to Proceed in Court Despite the Right to Repair Act.

Homeowners insured their residence with plaintiff insurance company. Defendant manufactured a stainless steel ear clamp attached to plumbing pipes in the home. In 2004, construction of the home was substantially completed, and a Notice of Completion recorded. In 2016, significant water damage occurred. The homeowners filed a claim, which plaintiff paid. In 2018, plaintiff brought a subrogation action against defendant to recover the amount plaintiff paid the homeowners, alleging the home was “damaged by a water leak from the failure of a defective stainless steel ear clamp on a water PEX fitting” and that the clamp was “defective when it left the control of [defendant].” The complaint included causes of action for negligence, strict products liability, and breach of implied warranty. The trial court granted defendant’s motion for summary judgment, finding plaintiff’s claim came under the 10-year statute of limitations in the Right to Repair Act (Civ. Code, § 895 et seq.). Reversing, the Court of Appeal held: “Here we hold that as applied to non-builders such as Oetiker, the Act covers claims based on negligence and breach of contract, but not those based on strict liability and breach of implied warranty. We accordingly reverse and remand with directions to allow the claims based on strict liability and implied warranty to proceed.” (State Farm General Insurance Company v. Oetiker, Inc. (Cal. App. 2nd Dist., Div. 6, Dec. 18, 2020) 58 Cal.App.5th 940.)

Fear of Prosecution in Home Country for Drug Use Is Not Reason to Grant Asylum.

Plaintiff is a native citizen of Vietnam admitted to the United States through a family-based visa petition as a lawful permanent resident in 1997. His extensive criminal record eventually caused the Department of Homeland Security to initiate removal proceedings. After numerous hearings, the Immigration Judge (IJ) granted his asylum application for asylum. The IJ held that plaintiff had established his membership in a cognizable particular social group: known drug users. The IJ also held that plaintiff had established a well-founded fear of future persecution due to the 2008 repatriation agreement between the United States and Vietnam, which requires the United States to share a deportee’s criminal record, and due to Vietnam’s policy of placing known drug users in compulsory rehabilitation centers. The IJ acknowledged that plaintiff had been sober for ten years, so it was unclear whether Vietnam would consider him a current user in need of rehabilitation. The Board of Immigration Appeals reversed and held that the IJ committed clear error by granting the application. The Ninth Circuit affirmed, finding plaintiff did not establish a well-founded fear of prosecution and that he failed to show he was a member of a cognizable group. (Nguyen v. Barr (9th Cir., Dec. 21, 2020) 2020 WL 7485699.)

Title to Home Quieted.

Joseph Trenk is a lawyer who previously represented Sohyly. Sohyly sued him for malpractice, and the parties settled in 2003. Joseph agreed to pay $100,000 and executed a promissory note and a trust deed on his residence to secure the obligation. Sohyly designated his sister, Maryam Soheili, as the beneficiary of the trust deed. Joseph’s wife did not sign the deed or the note. Joseph stopped regular payments on the note after 2003, and by 2018 he still owed about $75,000. Sohyly (through his sister) began nonjudicial foreclosure proceedings in January 2018. The Trenks then filed this lawsuit to clear title to their house, alleging that the trust deed was no longer enforceable. After trial, the trial court quieted title in the Residence in favor of the Trenks, ruling that both the statute of limitations and the Marketable Record Title Act (Civ. Code, § 880.020 et seq.) barred enforcement of the trust deed. Appellants argued that the 60-year time period for enforcement of a trust deed applied. The Trenks disputed that claim, but also argued as an alternative ground that the trust deed was unenforceable because Joseph’s wife did not sign it. The Court of Appeal agreed with both arguments, and affirmed the judgment, explaining: A power of sale in a trust deed is enforceable even if the statute of limitations has run on the underlying obligation. Because the trust deed here did not state the last date for payment under the promissory note appellants would have 60 years to exercise the power of sale in the trust deed. However, the power of sale was not enforceable because the residence was presumptively community property. Appellants did not rebut that presumption at trial. Because Joseph’s wife did not execute the trust deed, she had the power to void it. (Trenk v. Soheili (Cal. App. 2nd Dist., Div. 2, Dec. 21, 2020) 2020 WL 7487825.)

Qui Tam Action Not Subject to Arbitration.

A private insurance company, that contracts with a surgical center to provide medical services for its insureds, brought a qui tam action to recover damages and fees occasioned by the surgical center’s fraudulent billing practices. The contract between the insurance company and the surgical center contained an arbitration clause. The trial court denied the surgical center’s arbitration petition. Affirming, the Court of Appeal held the matter was not subject to arbitration because it was brought on behalf of the state which was not a party to the contract between the insurance company and the surgical center. (State v. Pain Management Specialist Medical Group (Cal. App. 2nd Dist., Div. 2, Dec. 21, 2020) 2020 WL 7488654.)

Summary Adjudication of Plaintiffs’ PAGA Claim Reversed.

Before bringing a PAGA action, the Labor Code requires a plaintiff to provide notice to the employer and the Workforce Development Agency “of the specific provisions of [the Labor Code] alleged to have been violated, including the facts and theories to support the alleged violation.” (Labor Code, § 2699.3, subds. (a)(1)(A), (c)(1)(A).) To that end, plaintiffs sent a letter to defendant and the agency in which he alleged that the defendant “systematic[ally] fail[ed] to pay current and former California non-exempt employees of AMS in conformance with [certain California laws].” Plaintiff alleged that the “core” of these violations concerned “the systematic failure to keep accurate time and payroll records, and systematic failure to compensate employees for substantial portions of their workday.” The trial court found plaintiff failed to satisfy the threshold requirement and granted the defendant employer’s motion for summary adjudication. Granting the plaintiffs’ petition for writ of mandate, the Court of Appeal held that plaintiffs satisfied the statutory requirement. (Rojas-Cifuentes v. Superior Court of San Joaquin County (Cal. App. 3rd Dist., Dec. 21, 2020) 2020 WL 7488653.)

As Applies to Qui Tam Actions, Just Because You Can Doesn’t Mean You Should.

Plaintiff filed a qui tam action against defendant. As required by law, the complaint was originally filed under seal and remained under seal while the California Attorney General and local prosecutors decided whether to intervene in the action, which they declined to do. (Gov. Code, §§ 12650-12656; California False Claims Act.) Thereafter, plaintiff successfully moved to extend the seal for an additional three years. (Gov. Code, §12652, subd. (c)(8)(C).) After the seal was lifted, plaintiffs began serving all defendants. Defendants moved to dismiss the action for failure to timely serve pursuant to Code of Civil Procedure § 583.210, subdivision (a). The trial court granted the motion. Affirming, the Court of Appeal stated: “We conclude that the extended period of sealing after the Attorney General declined to intervene cannot be considered a cause beyond Edelweiss’s control, so the court had no choice but to grant these defendants’ motion to dismiss.” (State of California ex rel. Edelweiss Fund, LLC v. JP Morgan Chase & Co. (Cal. App. 1st Dist., Div. 4, Dec. 22, 2020) 2020 WL 7586817.)

From Dillon v. Legg to Virtual Presence.

Parents of a two-year-old with a developmental disorder hired defendant to provide in-home care for the child. While away, the parents watched in horror, live-stream on a “nanny cam,” as the nurse physically assaulted their son. They alleged the abuse was so violent one of the child’s eyes had to be surgically removed. The child died a year later. The parents sued the service and the nurse. The trial court sustained defendants’ demurrers, ruling the parents could not state a cause of action for negligent infliction of emotional distress (NIED) because they could not satisfy the requirement established by the California Supreme Court in Thing v. La Chusa (1989) 48 Cal.3d 644, 668, that to recover on an NIED claim, a bystander plaintiff must be “present at the scene of the injury-producing event at the time it occurs and . . . then aware that it is causing injury to the victim.” Reversing, the Court of Appeal stated: “In the three decades since the Supreme Court decided Thing, technology for virtual presence has developed dramatically, such that it is now common for families to experience events as they unfold through the livestreaming of video and audio. Recognition of an NIED claim where a person uses modern technology to contemporaneously perceive an event causing injury to a close family member is consistent with the Supreme Court’s requirements for NIED liability and the court’s desire to establish a bright-line test for bystander recovery.” (Ko v. Maxim Healthcare Services, Inc. (Cal. App. 2nd Dist., Div. 7, Dec. 23, 2020) 2020 WL 7639590.)

Taking a Default in an Action for an Accounting.

Code of Civil Procedure § 580, subdivision (a)  provides that “[t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . . .” Thus, in all default judgments the demand sets a ceiling on recovery, and a judgment purporting to grant relief beyond that ceiling is in excess of jurisdiction and void. In an accounting action, however, a plaintiff does not know the sum certain owed by the defendant. As such, a complaint seeking an accounting cannot state the precise amount of damages sought. At issue in this case was how to reconcile the restrictions of § 580 with the limitations inherent in an action for accounting. The California Supreme Court held: “[I]n cases where plaintiffs seek monetary relief, the mere fact that they have pleaded an accounting action does not insulate them from the obligation to notify defendants of the dollar amounts sought before such relief may be granted in default. . . . [¶] [D]espite their relative lack of knowledge about the precise amounts owing, plaintiffs bringing accounting claims (1) are generally able to estimate their damages, (2) must ultimately prove the sums to which they are entitled after default, and (3) may request that the trial court take an accounting in circumstances where an accounting is necessary to discover the information needed to determine the amount owing. . . . [¶] [A] plaintiff seeking an accounting is not excused from section 580’s requirement to state a specific dollar amount to support a default judgment granting monetary relief. In particular, it is not enough that the complaint identifies the assets in a defendant’s possession and requests some fraction of their value.” (Sass v. Cohen (Cal., Dec. 24, 2020) 2020 WL 7653773.)

No Attorney Fees when No Substantial Benefit Resulting from Public Records Act Production of Documents.

A news outlet intervened in an action against a school district alleging molestation by one of the district’s employees. The news outlet sought disclosure of certain documents from the district under the California Public Records Act (Gov. Code, § 6250 et seq.). The trial court ordered the district to disclose publicly available court filings. Thereafter, the trial court denied the news outlet’s request for attorney fees under Code of Civil Procedure, § 1021.5, finding the production of the documents did not confer significant public benefit. Affirming, the Court of Appeal noted that § 1021.5 fees require more than a mere statutory violation, the trial court did not abuse its discretion, and the court acted reasonably in denying the news outlet’s fee request. (Burgess v. Coronado Unified School District (Cal. App. 4th Dist., Div. 1, Dec. 24, 2020) 2020 WL 7653955.)

Summary Judgment Granted to Caltrans for Freeway Offramp Design.

Plaintiff was a passenger in a car waiting for a green light when a tractor-trailer truck exiting the freeway broadsided the car, seriously injuring her. The driver of the truck did not remember what happened and said he had no reason to exit the freeway there; no drugs or alcohol were found in his system. Plaintiff sued Caltrans, asserting a dangerous condition of public property, contending the signage for the offramp was confusing. Determining it was entitled to summary judgment based on design immunity, the trial court granted summary judgment in favor of Caltrans. Affirming, two of the three Court of Appeal justices noted that the usual rules for a typical summary judgment do not apply in a case involving design immunity, stating: “[Plaintiff], apparently ignoring the proper standard, asks us to consider evidence of how the off-ramp looked and testimony from her expert witnesses to determine whether the design was reasonable. However, given our standard of review in this specific scenario, we are unable to interpret that evidence de novo. Indeed, as detailed below, Caltrans provided substantial evidence to support discretionary approval of the design plans, an expert opinion as to the reasonableness of the design, and evidence the design complied with California’s approved standards.” The third justice dissented, stating: “Design immunity is only a defense if the improvements are constructed in substantial conformity with the approved design. If Caltrans designed an off-ramp but constructed a wall instead, the reasonableness of the off-ramp design would have no bearing on its liability if someone drives into the wall.” (Menges v. Department of Transportation (Cal. App. 4th Dist., Div. 3, Dec. 24, 2020) 2020 WL 7653957.)

Rebutting Presumption that Notice Was Received.

Plaintiff claimed she never received notice of the Social Security Administration Appeals Council’s decision affirming the denial of disability benefits. She learned of the decision eighteen months after it was issued when her counsel called the Appeals Council. She filed a lawsuit the following day. The district court dismissed the action with prejudice as time-barred. The court found that declarations by plaintiff and her attorney were insufficient to rebut the presumption that plaintiff received notice five days after the denial, triggering a 60-day deadline to file a lawsuit. (20 C.F.R. § 422.210(c).) Reversing and remanding, the Ninth Circuit noted that the combination of circumstances in this case—including unrebutted declarations by both plaintiff and her attorney, an officer of the court, that neither received the notice, where the face of the notice indicated that both were supposed to have been mailed copies—was sufficient to rebut the presumption and shift the burden of proving actual receipt to the government. (Ashe v. Saul (9th Cir., Dec. 28, 2020) 2020 WL 7690334.)

The Always Unforgiving Government Claim.

Plaintiff appealed from a judgment denying her petition under Government Code § 946.6 seeking relief from the requirement in the Government Claims Act (§ 810 et seq.) that she timely present a claim with the County of San Diego prior to bringing a suit for damages. Plaintiff’s proposed claim against the county arose from an alleged sexual assault by a San Diego County deputy sheriff. Plaintiff’s petition for relief alleged that due to the emotional trauma and psychological difficulties faced by victims of sexual assaults committed by law enforcement officers, which can cause those victims to delay in coming forward, her failure to timely present a claim should be excused due to mistake or excusable neglect. Affirming, the Court of Appeal stated: “We conclude that the trial court was within its discretion to conclude that N.G. did not establish mistake or excusable neglect to support her petition for relief from the claim filing requirement.” (N.G. v. County of San Diego (Cal. App. 4th Dist., Div. 1, Dec. 28, 2020) 2020 WL 7692285.)

Previously we reported:
Treatment of Children in Border Facilities.

 In 1997, the federal district court entered a consent decree (Agreement) in a case filed on behalf of a class of minors detained by U.S. immigration authorities. The Agreement requires immigration facilities to hold minors in their custody “in facilities that are safe and sanitary.” In May 2016, plaintiffs filed a motion to enforce the Agreement, alleging the government continued to violate it by detaining class members in unsafe and unsanitary conditions at Border Patrol stations. After an evidentiary hearing, the federal district court granted the motion. The court found that the government was violating the Agreement’s express requirements to provide adequate access to appropriate food and water and “adequate temperature controls at a reasonable and comfortable range.” The court further found that although the Agreement “makes no mention of the words ‘soap,’ ‘towels,’ ‘showers,’ ‘dry clothing,’ or ‘toothbrushes,’ . . . these hygiene products fall within the rubric of the Agreement’s language requiring ‘safe and sanitary’ conditions.” Appealing from the order, the government argued the court modified the Agreement by adding “that Border Patrol stations provide the most basic human necessities—accommodations that allow for adequate sleep, essential hygiene items, and adequate, clean food and water . . . .” The Ninth Circuit dismissed the appeal, stating the lower court did not modify the original Agreement, but only interpreted the Agreement’s requirement that minors be held in “safe and sanitary” conditions. (Flores v. Barr (9th Cir., Aug. 15, 2019) 934 F.3d 910.)

The latest:

By the Agreement’s own terms, it terminates after the government’s “publication of final regulations implementing this Agreement.” In 2019, the government issued final regulations represented as implementing, and thus terminating, the Agreement. The new regulations largely mirror the Agreement’s protections for unaccompanied minors, but they significantly reduce the limits on accompanied minors. The district court concluded that the new regulations, on the whole, were inconsistent with the Agreement. It enjoined the regulations from taking effect and denied the government’s motion to terminate the Agreement. Largely affirming, the Ninth Circuit stated: “We hold that the provisions of the new regulations relating to unaccompanied minors are generally consistent with the Agreement and may take effect, with two exceptions. Additionally, some of the regulations regarding initial detention and custody of both unaccompanied and accompanied minors are consistent with the Agreement and may take effect. The remaining new regulations relating to accompanied minors depart from the Agreement in several important ways. We therefore affirm the district court’s order enjoining those regulations. Additionally, the district court correctly concluded that the Agreement was not terminated by the adoption of the regulations.” (Flores v. Rosen (9th Cir., Dec. 29, 2020) 2020 WL 7705556.)

Appeal from Voluntary Dismissal Dismissed.

Plaintiff is a Verizon Wireless customer who purchased the company’s extended warranty program for his cellphone. He was unhappy to learn that the Verizon warranty offered similar protections to those already provided by his cellphone manufacturer for the first year. He filed a class action complaint against Verizon for violation of federal and state consumer protection statutes. Verizon moved to compel arbitration and stay judicial proceedings. The district court granted the motion. Plaintiff then voluntarily dismissed his claims with prejudice. He did so because arbitration was not “economically feasible,” and he felt that appealing the arbitration order was his only viable option. Plaintiff then appealed his own voluntary dismissal and the trial court’s order to arbitrate. The Ninth Circuit granted Verizon’s motion to dismiss the appeal for lack of appellate jurisdiction. (Langere v. Verizon Wireless Services, LLC (9th Cir., Dec. 29, 2020) 2020 WL 7705568.)

Attorney Fees when a Defendant Challenges a Default Judgment.

Plaintiff sued defendant over a lease dispute. The lease contained a prevailing party attorney fee provision. Defendant did not answer the complaint, and plaintiff obtained a default judgment, but did not request attorney fees. Defendant filed a motion to set aside the default. The court denied the set aside motion and two motions for reconsideration. The court then denied plaintiff’s motion for attorney fees. Reversing, the Court of Appeal stated: “When a plaintiff requests entry of judgment by default, a request for attorney fees must be made at the same time or the fees are forfeited. (Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479.) But attorney fees are not forfeited absent such request when defendant contests a default judgment.” (Vincent v. Sonkey (Cal. App. 6th Dist., Dec. 29, 2020) 2020 WL 7706260.)

Gender Discrimination in the Workplace.

Plaintiff is a former employee of defendant bank. A bank customer harassed and stalked plaintiff for over a year, and plaintiff’s requests for the bank to take effective action to protect her allegedly went unheeded. She sued the bank for gender harassment and retaliation under title VII of the Civil Rights Act of 1964 and the Washington Law Against Discrimination. The district court granted summary judgment in favor of the bank. Reversing, the Ninth Circuit held the purpose of title VII is to liberate the workplace from the demeaning influence of discrimination, and thereby to implement the goals of human dignity and economic equality in employment, holding: “Because gender-based harassment threatens the ability of its victims to thrive in the workplace, employers must act promptly to remedy its effects and prevent its recurrence. Genuine issues of material fact exist as to whether [the bank] met this mandate and, accordingly, we reverse the district court’s grant of summary judgment and remand for further proceedings consistent with his opinion.” (Christian v. Umpqua Bank (9th Cir., Dec. 31, 2020) 2020 WL 7777882.)

Education for Children with Behavioral Disabilities.

Plaintiff is an elementary school student who has attention deficit hyperactivity disorder and severe, disability-related behavioral issues. As early as kindergarten, his mother was regularly called to take him home early because his behaviors interfered with other students. His mother requested and was denied a one-to-one aide to accommodate his needs and enable him to participate with his peers. He sued under the Americans with Disabilities Act (42 U.S.C. § 12182(b); ADA) seeking damages for harms stemming from his repeated exclusion from school and for abusive treatment he experienced when he attended. The district court dismissed the action. Reversing, the Ninth Circuit found plaintiff’s claim for discriminatory exclusion from the classroom to be separate and apart from intentional discrimination under the ADA and from his right to a free appropriate public education. (D.D. v. Los Angeles Unified School District (9th Cir., Dec. 31, 2020) 2020 WL 7776924.)

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