Litigation Update: January 2024

Please share:

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

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Julia C. Shear Kushner
  • Editors, Dean Bochner, Colin P. Cronin, Jenn French, Jennifer Hansen, Ryan Wu
Frustrated Immigrants

Plaintiffs are natives of India who have lawfully lived and worked in the United States for years. Their employers sponsored them for green cards, which would entitle them to lawful permanent residency status. If and when plaintiffs reach that status, they would no longer face restrictions on work and international travel. They have been waiting in the immigrant queue for more than ten years. The cap placed on the number of immigrants to be admitted each year by the Immigration and Nationality Act (8 U.S.C. § 12) has not changed since 1995. When the State Department estimated that plaintiffs had reached their place in line, plaintiffs applied for a green card. At that point, the State Department revised its forecast and concluded it had already reached the immigration cap for the year, which meant plaintiffs would have to get back in line and wait indefinitely to apply for a green card. Plaintiffs petitioned a federal court for injunctive relief, requesting that it compel immigration authorities to act on their application for adjustment of their status. The district court denied plaintiffs’ request for relief. Affirming, the Ninth Circuit Court found that plaintiffs were unlikely to establish their claims were meritorious, observing that an estimate was not a guarantee and that the State Department must revise its estimate when circumstances change. (Babaria v. Blinken (9th Cir., Dec. 1, 2023) 87 F.4th 963.)

Personal Injury Action Against Ambulance Company Had to Be Filed Within One Year

Plaintiff’s vehicle was rear-ended by an ambulance while driving on a highway. At the time, the ambulance driver was transporting a patient from one medical facility to another. Almost two years later, plaintiff filed a personal injury action against the ambulance company and its driver. The trial court dismissed the case because it was time-barred by the statute of limitations. Affirming, the Court of Appeal concluded that “because [the ambulance driver] was a medical provider rendering professional services at the time the alleged negligence occurred, MICRA’s [Medical Injury Compensation Reform Act; CCP § 340.5] statute of limitations bars [plaintiff’s] claims.” (Gutierrez v. Tostado (Cal. App. 6th Dist., Dec. 1, 2023) 97 Cal.App.5th 786.)

Hotel’s Appeal to U.S. Supreme Court Against a Disabled Plaintiff Dismissed.

Plaintiff has sued hundreds of hotels whose websites failed to state whether they have rooms accessible to the disabled. She systematically searched the web to find hotels that fail to provide accessibility information and sues to force compliance with the Americans with Disabilities Act of 1990, (42 U.S.C. § 12101 et seq.; ADA). Some hotels settled, but others contended that only plaintiffs who allege a concrete injury have standing to sue in federal court, and that this plaintiff was suing to enforce the law rather than to remedy her own harms. The U.S. Supreme Court noted that plaintiff “has singlehandedly generated a circuit split.” After a federal district court in Maryland suspended plaintiff’s lawyer from the practice of law for defrauding hotels by lying in fee petitions and during settlement negotiations, plaintiff dismissed all of her pending actions and argued further appeals were moot. Dismissing the case, the nation’s highest court stated: “She voluntarily dismissed her pending ADA cases after a lower court sanctioned her lawyer. She represented to this Court that she will not file any others. [Plaintiff’s] case against [one particular hotel] is moot, and we dismiss it on that ground.” (Acheson Hotels, LLC v. Laufer (U.S., Dec. 5, 2023) 144 S.Ct. 18.)

Class Action Settlement Vacated Because Class Representative Did Not Adequately Represent the Class.

Objectors appealed a federal district court’s approval of a class action settlement. The named plaintiff’s case was subject to arbitration, but the 7,000 class members may not have to go to arbitration. For that reason, the Ninth Circuit vacated the approval of the settlement and remanded the matter back to the district court, finding the named plaintiff was not an adequate representative of the class. (Kim v. Allison (9th Cir., Dec. 5, 2023) 87 F.4th 994.)

New Law Regarding Challenging a Delegation Clause in an Arbitration Agreement.

Defendant contended plaintiff failed to specifically challenge the delegation clause in an arbitration agreement. The Ninth Circuit held: “First, a party resisting arbitration must mention that it is challenging the delegation provision and make specific arguments attacking the provision in its opposition to a motion to compel arbitration. Second, a party may challenge the delegation provision and the arbitration agreement for the same reasons, so long as the party specifies why each reason renders the specific provision unenforceable.” (Bielski v. Coinbase, Inc. (9th Cir., Dec. 5, 2023) 87 F.4th 1003.)

Summary Judgment Reversed in Sexual Harassment Case; Plus Warning About Separate Statements. 

A trial court granted summary judgment in a sexual harassment case involving 15 claims. The Court of Appeal affirmed in part and reversed in part. As to Government Code § 12023, which is part of Fair Employment and Housing Act, the appeals court held that it clarified existing law about severe or pervasive conduct by explaining that a single incident is sufficient to allege harassment. That statute went into effect on January 1, 2019, but the conduct alleged preceded its enactment. The appeals court held that because § 12023 merely clarified existing law, it could be applied when conduct predated its enactment. On a different issue, the moving party’s separate statement contained 600 separate paragraphs of purported material facts that consumed over 100 pages. The Court of Appeal stated: “Trial courts should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement—and an inappropriate separate statement includes an overly long document that includes multiple nonmaterial facts in violation of the Rules of Court.” (Beltran v. Hard Rock Hotel Licensing, Inc. (Cal. App. 4th Dist., Div. 3, Dec. 5, 2023) 97 Cal.App.5th 865.)

Injured While Working as a Term of Probation. 

As a condition of probation after pleading guilty to a felony, plaintiff entered a residential rehabilitation program sponsored by the Salvation Army and was injured while working in its warehouse. The Workers’ Compensation Appeals Board concluded that plaintiff was not employed by either the Salvation Army or the county and denied workers’ compensation benefits. The Court of Appeal affirmed in part and annulled in part, concluding: “1) The Salvation Army is statutorily excluded from being an employer for workers’ compensation purposes under [Labor Code] section 3301; and 2) the record was inadequately developed during the administrative proceedings to determine whether the County was Velasquez’s employer. The latter issue must be remanded to the Board for further consideration.” (Velasquez v. Workers’ Compensation Appeals Board (Cal. App. 2nd Dist., Div. 6, Dec. 5, 2023) 97 Cal.App.5th 844.)

Certified Question About Contractual Limitation of Damages from Ninth Circuit to the California Supreme Court.

California Civil Code § 1668 states: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” The contract at issue here had a limitation of damages, which stated in part: “in no event shall either party be liable for any punitive, special, incidental or consequential damages of any kind.” The Ninth Circuit asked the California Supreme Court the following question: “Is a contractual clause that substantially limits damages for an intentional wrong but does not entirely exempt a party from liability for all possible damages valid under California Civil Code Section 1668?” More later on this one. (New England Country Foods, LLC  v. Vanlaw Food Products, Inc. (9th Cir., Dec. 6, 2023) 87 F.4th 1016.)

State Bar Enjoys Eleventh Amendment Immunity.

Benjamin Kohn is an attorney and law school graduate and, during the period relevant to this appeal, was also seeking to become licensed to practice law in California. Kohn’s pleading alleged he has been diagnosed with autism spectrum disorder, as well as other mental and physical ailments including neurological/attention disorders, digestive system conditions, and visual impairments. Kohn applied for testing accommodations based on his disabilities for each administration and was granted substantial accommodations each time, including at least double testing time, examination in a semi-private room, the use of a laptop computer, and permission to bring ergonomic equipment to the exam. However, his other requested accommodations were denied. His opening brief acknowledged he took and passed the bar exam in 2020 and was admitted to practice law in California. His complaint alleged the California State Bar violated both federal and state disability statutes. A federal trial court dismissed his action. The Ninth Circuit affirmed, holding that the State Bar enjoys Eleventh Amendment protection in federal court. (Kohn v. State Bar of California (9th Cir., Dec. 6, 2023) 87 F.4th 1021.)

Employer’s Agreement with Health Care Plan Nor Employer’s Enrollment Form for Employees Included Required Disclosures About Arbitration.

Health and Safety Code § 1363.1 lists four requirements that any health care service plan must include in a contract requiring binding arbitration to settle disputes between the plan and the insured. Here, the trial court denied the health care plan’s petition to compel arbitration with the plaintiff because the agreement between the plan and plaintiff’s employer did not satisfy the statute’s disclosure requirements. Affirming the denial of the petition to compel arbitration, the Court of Appeal stated: “The primary aim of section 1363.1 is ‘to protect health care consumers from the consequences of unknowingly waiving their right to a jury trial.’ . . . We find the enrollment forms do not comply with section 1363.1, subdivisions (a) and (c), both of which require clarity of disclosure. . . . Assuming for the sake of argument that the enrollment form is compliant with section 1363.1, we also agree with the trial court’s ruling that the County’s agreement with Health Net did not comply with section 1363.1, subdivision (d).” (Baglione v. Health Net of California, Inc. (Cal. App. 2nd Dist., Div. 8, Dec. 6, 2023) 97 Cal.App.5th 882.)

Employer Found to Be Misleading and Coercive in Wage and Hour Action.

The lead plaintiff in a class action sought unpaid overtime wages. Plaintiff’s former employer responded to the lawsuit by trying to persuade employees to agree not to join any collective or class action and encouraged employees to settle their claims individually. The district court found the employer/defendant’s communications to solicit these agreements to be coercive and misleading. The district court, therefore, nullified the new employment agreements and release agreements, and ordered the employer to communicate with current and former employees about wage and hour issues only in writing and with prior court approval. On appeal, the employer challenged the district court’s nullification of signed agreements and its restriction on communications with employees. Affirming in part and dismissing in part, the Ninth Circuit stated: “[W]e have appellate jurisdiction over the district court’s restriction on the employer’s communication with members of the putative class and collective action, and on the merits we affirm the restriction, finding it both justified and tailored to the situation created by the employer’s misleading and coercive communications. We lack appellate jurisdiction, however, over the district court’s order nullifying agreements between the employer and current and former employees. We therefore do not reach the merits of the nullification issue.” (Dominguez v. Better Mortgage Corporation (9th Cir., Dec. 7, 2023) 88 F.4th 782.)

Inadmissible Character Evidence.

In a sexual harassment action against a plaintiff’s employer, over objection, the trial court admitted the written complaints of several employees accusing plaintiff of bullying, harassment, retaliation, yelling, making threats and other bad behavior, including discriminating against a pregnant subordinate. Additionally, those complaints were read aloud to the jury. The jury returned a defense verdict, and the trial court denied the plaintiff’s motions for new trial and judgment notwithstanding the verdict. On appeal, the plaintiff argued prejudicial error in the court’s admission of evidence. Reversing, the Court of Appeal stated: “Employee complaints about Argueta’s behavior constituted inadmissible character evidence and prejudiced appellant’s case.” (Argueta v. Worldwide Flight Services, Inc. (Cal. App. 2nd Dist., Div. 8, Dec. 7, 2023) 97 Cal.App.5th 822.)

Litigation Privilege Saves Law Firm from UCL Claims by District Attorneys.

Defendant is a law firm that has filed countless complaints in federal courts in California alleging violation of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101, et seq.; ADA). The district attorneys of Los Angeles and San Francisco alleged: (1) that these ADA complaints contained standing allegations the Potter Handy firm knew to be false; (2) that Potter Handy filed the complaints as part of a shakedown scheme to extract coerced settlements from small business owners in California; and (3) that this conduct constituted an “unlawful” business practice under the state’s unfair competition law (Bus. & Prof. Code, § 17200 et seq.; UCL). As predicate for its charge of unlawfulness, the People relied on Business and Professions Code § 6128, subdivision (a), which makes it a misdemeanor for an attorney to engage in deceit or collusion with intent to deceive the court or a party, and on two rules of professional conduct governing lawyers. The trial court sustained Potter Handy’s demurrer without leave to amend. Affirming, the Court of Appeal stated: “The question before this court is whether the People’s UCL claim can survive a demurrer brought on the ground that the litigation privilege [(Civ. Code, § 47, subd. (b))] immunizes Potter’s alleged conduct in this case. . . . Courts have long recognized that the privilege must give way where a statute like section 6128(a) ‘is more specific than the litigation privilege and would be significantly or wholly inoperable if its enforcement were barred when in conflict with the privilege.’ [Citation.] We conclude this exception does not extend to a UCL claim predicated on violation of section 6128(a) and on Rules of Professional Conduct. Carving out an exception to the litigation privilege for the People’s UCL claim would not be proper because the Legislature’s prescribed remedies—prosecution directly under section 6128(a) and State Bar disciplinary proceedings—remain viable.” (People v. Potter Handy, LLP (Cal. App. 1st Dist., Div. 3, Dec. 8, 2023) 97 Cal.App.5th 938.)

Previously we reported:
Conversion Therapy on Minors. 

Conversion therapy encompasses therapeutic practices and psychological interventions that seek to change a person’s sexual orientation or gender identity. The goal is to change an individual’s sexual orientation from gay to heterosexual or to change an individual’s gender identity from transgender to cisgender or birth sex. The state of Washington enacted a law that added conversion therapy to patients under age eighteen to the list of unprofessional conduct for licensed health care providers. Plaintiff is a licensed marriage and family therapist whose work was informed by his Christian views. Plaintiff believes that the sex each person was assigned at birth was “a gift of God” that should not be changed and trumps an individual’s “feelings, determinations, or wishes.” Plaintiff sued Washington state officials seeking to stop enforcement of the law that made conversion therapy on minors unprofessional conduct. The district court dismissed the action. Affirming, the Ninth Circuit stated: “Washington’s licensing scheme for health care providers, which disciplines them for practicing conversion therapy on minors, does not violate the First or Fourteenth Amendments. States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because those treatments are implemented through speech rather than through scalpel.” (Tingley v. Ferguson (9th Cir., 2022) 47 F.4th 1055.)

The latest:

Plaintiff, a licensed marriage and family therapist petitioned the U.S. Supreme Court for certiorari. The high court denied certiorari. Justice Kavanaugh would have granted certiorari. Justice Thomas dissented and wrote separately, stating he thought the Supreme Court should hear the matter to address a circuit split and noting: “This case is not the first instance of the Ninth Circuit, restricting medical professionals’ First Amendment rights, and without this Court’s review, I doubt it will be the last.” Justice Alito also dissented from denial of certiorari, stating: “In recent years, 20 States and the District of Columbia have adopted laws prohibiting or restricting the practice of conversion therapy. It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny.” (Tingley v. Ferguson (U.S., Dec. 11, 2023) 144 S.Ct. 33.)

Police Handcuffed and Then Forced an 83-Year-Old Woman to Kneel Down on Street During Traffic Stop. 

An 83-year-old, 117-pound, 5’2’’ tall woman sued the police for excessive force under 42 U.S.C. § 1983. Plaintiff was driving a blue Oldsmobile sedan when an automated license plate reader (ALPR) detected her vehicle as stolen. While the license plate of plaintiff’s blue vehicle matched the ALPR system, the vehicle reported stolen was a cream-colored Oldsmobile. Chino Police Department officers responded to the dispatcher and conducted a felony/high-risk stop for suspected vehicle theft. During the stop, officers ordered plaintiff to step out of her vehicle and provide visual proof of being unarmed. They forced her to kneel so that she could be handcuffed. Plaintiff complied. At least three officers aimed their firearms towards plaintiff. Plaintiff was in the kneeling position for about twenty seconds and in handcuffs for about two and a half minutes when police determined her car had not been stolen. The district court granted summary judgment for defendants. In February 2023, the Ninth Circuit held the lower court erred in granting summary judgment as to the excessive force claim but did not err in granting the motion as to the unlawful arrest claim because the officers were entitled to qualified immunity. Contending they were just following protocols, the police petitioned the U.S. Supreme Court for certiorari. On December 11, 2023, the Supreme Court denied certiorari. Presumably the case will proceed to trial.  (Gregory v. Brown (U.S., Dec. 11, 2023) 2023 WL 8531877.)

Firefighter’s Remedy Is Workers’ Compensation. 

Plaintiff is a firefighter who was injured when a municipal bus driver drove through an active emergency scene and over a fire hose, which broke off from a fire engine and struck plaintiff. The trial court dismissed plaintiff’s personal injury case after it sustained defendant’s demurrer to the complaint without leave to amend on the basis that the action was barred by the exclusivity provisions of the Workers’ Compensation Act (Lab. Code, § 3200 et seq.). Affirming, the Court of Appeal stated: “[T]he purpose of the exclusivity rule would be defeated if employees could bring actions against fellow employees acting in the scope of employment such that the fellow employees’ negligence could be imputed to their employers.” (Vann v. City and County of San Francisco (Cal. App. 1st Dist., Div. 2, Dec. 12, 2023) 97 Cal.App.5th 1013.)

Criminal Defendant Argued: “Criminal courts are not supposed to be gambling halls where juries are faced with all or nothing verdicts.” 

An expert testified that at the time of a collision, a criminal defendant’s blood alcohol indicated he had between 11 and 12 standard drinks in his system. When the incident happened, a six-year-old girl was sitting on a lawn playing with her cousin. The defendant came to a T-intersection, did not make the turn, jumped the curb, and killed the little girl. Evidence at trial included a statement defendant made on a 2015 guilty plea form: “I have been advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of that driving someone is killed, I can be charged with murder.” In the current case, a jury convicted him of second-degree murder. On appeal, the defendant argued the trial court erred by not instructing the jury on a lesser-related offense, such as gross vehicular manslaughter while intoxicated. His brief stated: “Criminal courts are not supposed to be gambling halls where juries are faced with all or nothing verdicts.” Rejecting the defendant’s argument and affirming his conviction, the Court of Appeal stated: “We are not taking a position on this oft-raised argument, but we are publishing this opinion to make clear that this argument is more properly directed to the Legislature.” (People v. Lagunas (Cal. App. 4th Dist., Div. 3, Dec. 12, 2023) 97 Cal.App.5th 996.)

Previously we reported: 
Procedures Universities Must Follow When Investigating Sexual Misconduct. 

A University of Southern California (USC) student was found to have committed sexual misconduct and was expelled. The Court of Appeal held that USC’s disciplinary procedures were unfair because they denied the student a meaningful opportunity to cross-examine critical witnesses at an in-person hearing. Reversing the judgment of the Court of Appeal, the California Supreme Court stated: “We hold that, though private universities are required to comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard, they are not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in attendance, either in person or virtually. . . . Instead, private organizations should ‘retain the initial and primary responsibility for devising a method’ to ensure adequate notice and a meaningful opportunity to be heard. (Ibid.) We accordingly reverse the Court of Appeal’s judgment.” (Boermeester v. Carry (2023) 15 Cal.5th 72.)

The latest:

Defendant dismissed plaintiff from its vocational nursing program. Plaintiff brought a writ petition under Code of Civil Procedure § 1094.5. The trial court denied the petition because defendant’s policies did not require it to hold a hearing. Since the trial court’s ruling, the California Supreme Court issued its landmark decision about the doctrine of fair procedure in Boermeester v. Carry (2023) 15 Cal.5th 72. Vacating the trial court’s ruling and remanding the case back to the lower court, the Court of Appeal stated: “On remand, the trial court may allow or order the parties to submit additional records of the proceedings, which could include affidavits from Campbell and the Institute about the procedures the Institute followed.” (Campbell v. Career Development Institute, Inc. (Cal. App. 2nd Dist., Div. 8, Dec. 13, 2023) 97 Cal.App.5th 1109.)

Dismissal Under Five-Year Statute Reversed. 

Plaintiff filed suit for negligence against defendant in 2017. After a few continuances at plaintiff’s request, the trial date was rescheduled for July 1, 2020 but was taken off calendar due to the pandemic. A new trial setting conference was subsequently set for January 26, 2021 but was continued to May 25, 2021, as plaintiff had not yet had surgery for her injuries sustained in the accident. Due to conflicting schedules of the experts expected to testify, a new trial date was set for May 9, 2022. Although plaintiff and her counsel appeared on this date ready for trial, the trial court continued the May 9, 2022 trial date on its own motion due to lack of courtroom availability. On May 20, 2022, defendants filed a motion to dismiss the complaint pursuant to Code of Civil Procedure § 583.310. Granting the motion, the trial court opined that nothing had occurred during the five-year period that would justify tolling the time under Code of Civil Procedure § 583.340 to bring the action for trial. Reversing, the Court of Appeal noted: “The five-year and six-month statute of limitations period under section 583.310 and Emergency rule 10(a) had not expired at the time the trial court granted the motion to dismiss.” (Barron v. Santa Clara County Valley Transportation Authority (Cal. App. 6th Dist., Dec. 14, 2023) 97 Cal.App.5th 1115.)

Workers’ Compensation Appeals Board Lacked Jurisdiction to Consider Petition of the California Insurance Guarantee Association. 

Labor Code § 5909 provides that if the Workers’ Compensation Appeals Board does not act on a party’s petition for reconsideration of a decision by the workers’ compensation judge or arbitrator within 60 days, the petition is “deemed to have been denied.” Here, the board granted a petition for reconsideration filed by real party in interest, California Insurance Guarantee Association (CIGA), more than nine months after CIGA filed its petition. The board sought to justify its late decision on the basis its delay was the result of an “administrative irregularity” in the workers’ compensation appeals process that delayed transmission of CIGA’s timely filed petition to the board. Zurich American Insurance Company sought a writ of mandate directing the board to rescind its order granting CIGA’s petition, arguing the petition had already been denied by operation of law under § 5909. In response, the board relied on an exception to § 5909’s 60-day deadline recognized over three decades ago by the Court of Appeal in Shipley v. Workers’ Compensation Appeals Board (1992) 7 Cal.App.4th 1104, which found the 60-day deadline was tolled because the claimant diligently inquired into the status of his petition for reconsideration and the board misled the claimant to believe his petition would be considered once the lost file on his case was retrieved or reconstructed. Granting the insurance company’s petition for writ of mandate, the Court of Appeal stated: “We conclude the language and purpose of section 5909 show a clear legislative intent to terminate the Board’s jurisdiction to consider a petition for reconsideration after the 60 days have passed, and thus, decisions on the petition made after that date are void as in excess of the agency’s jurisdiction. . . . [¶] . . . [¶] We issue a writ of mandate directing the Board to rescind its order granting CIGA’s petition for reconsideration and ordering Zurich dismissed as a party defendant from the proceeding.” (Zurich American Insurance Company v. Workers’ Compensation Appeals Board (Cal. App. 2nd Dist., Div. 7, Dec. 18, 2023) 2023 WL 8711736.)

Trivial Defect. 

Plaintiff tripped on a vertical misalignment of less than one inch between the metal plate covering an underground utility vault owned by defendant utility company and the surrounding sidewalk adjacent to the property of another defendant. She fell and was injured. The trial court granted summary judgment for defendants. Affirming, the Court of Appeal held “the vertical misalignment of the metal plate cover surrounding sidewalk was a trivial defect as matter of law barring this lawsuit.” (Miller v. Pacific Gas and Electric Company (Cal. App. 1st Dist., Div. 3, Dec. 18, 2023) 2023 WL 8714121.)

Anti-SLAPP Motion Should Have Been Granted in Malicious Prosecution Action. 

In a hotly litigated underlying real property dispute involving an easement, the plaintiff in the underlying action faced a second demurrer, three motions for sanctions, and extensive discovery. So, plaintiff dismissed the underlying complaint. Thereafter, the present action for malicious prosecution was filed against plaintiff and her lawyer. Both plaintiff and her lawyer, the defendants in the present action, filed a motion to strike pursuant to Code of Civil Procedure § 425.16. The trial court denied both motions. Reversing, the Court of Appeal noted that two documents in the underlying case created an ambiguity that “provided a minimally sufficient basis for Crawford to seek the damages remedy she sought.” (Green Tree Headlands LLC v. Crawford (Cal. App. 1st Dist., Div. 4, Dec. 19, 2023) 2023 WL 8742946.)

Petition to Order Matter to Arbitration Denied. 

In October 2022, the daughter of a resident of a residential care facility informed the facility her mother had a cognitive disorder. In December 2022, the facility had the patient/resident sign an arbitration agreement. The trial court denied the facility’s request to order this action into arbitration. Affirming, the Court of Appeal considered all of the evidence, including the placement of the signature block for the agreement, stating: “In sum, the circumstances surrounding Haydon’s execution of the arbitration provision reflect a high degree of procedural unconscionability.” Regarding the claim the trial court erred by failing to address whether any unconscionable components could be severed, the appeals court stated: “When unconscionability is shown, the trial court has discretion to ‘refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.’ (Civ. Code, § 1670.5, subd. (a).) We review the trial court’s decision for abuse of discretion. . . . [¶] . . . [¶] . . . We presume the trial court found the provision here was permeated by unconscionability, and we see no abuse of discretion in that finding.” (Haydon v. Elegance at Dublin (Cal. App. 1st Dist., Div. 3, Dec. 19, 2023) 2023 WL 8743357.)

Trial Court Erred in Dismissing Complaint with Prejudice. 

The district court dismissed a complaint with prejudice after plaintiff requested that it be dismissed without prejudice. Reversing, the Ninth Circuit stated: “[B]ecause Defendants failed to demonstrate that they would suffer legal prejudice if the court dismissed Plaintiffs’ claims without prejudice, the district court abused its discretion by denying Plaintiffs’ motion to dismiss without prejudice.” (Kamal v. Eden Creamery, LLC (9th Cir., Dec. 21, 2023) 2023 WL 8820210.)

Nirvana’s  1991 Hit Album Nevermind Has a Naked Photograph of Plaintiff When He Was a Baby.

Under 18 U.S.C. § 2255, a person who, while a minor, was a victim of specified offenses, including child pornography offenses, may bring a civil suit for damages for personal injuries. The suit must be brought within ten years after the later of the violation or the injury “that forms the basis for the claim.” Plaintiff alleged that he was the victim of a child pornography offense when, as a four-month-old baby, he was photographed naked in a pool for the cover of Nirvana’s iconic album Nevermind. Now an adult, plaintiff argued that the continued use of this photo causes ongoing personal injuries. The district court granted defendants’ motion to dismiss. Reversing, the Ninth Circuit stated: “We hold that, because each republication of child pornography may constitute a new personal injury, Elden’s complaint alleging republication of the album cover within the ten years preceding his action is not barred by the statute of limitations set forth in 18 U.S.C. § 2255(b)(1)(B) (2018).” (Elden v. Nirvana, L.L.C. (9th Cir., Dec. 21, 2023) 2023 WL 8820263.)

Taxability Question Must Be First Determined by the California Department of Tax and Fee Administration Before Suit Is Brought. 

Plaintiffs challenged the taxability of a vehicle turn-in fee defendant charges at the end of their lease agreements. Without first submitting their claims to respondent California Department of Tax and Fee Administration, plaintiffs filed suit for violation of California’s Unfair Competition Law (Bus. & Prof. Code, §§ 17200, 17203). The trial court sustained defendant’s demurrers and denied plaintiffs’ request for leave to amend the complaint to include a copy of the lease agreements. Affirming, the Court of Appeal stated: “At its core, this is a tax refund action that cannot be maintained in any court unless the Department first determines the taxability question.” (Stettner v. Mercedes-Benz Financial Services USA, LLC (Cal. App. 3rd Dist., Dec. 21, 2023) 2023 WL 8818219.)

Mineral Rights Holders Have Interest in Extraction of Sand and Gravel. 

In the 1950s and 1960s, landowners in southwest San Bernardino County transferred 19 parcels of land to various individuals by grant deed, reserving a partial interest in “all oil, gas, and other hydrocarbons and minerals” beneath the surface. Once severed, the surface and mineral estates changed hands over the years. The current owners of the surface estate are mining companies that wish to extract sand and gravel from the combined 196-acre tract. Mineral rights holders claimed a one-half interest in their mining proceeds. At issue was whether “minerals” in the original reservations included rights to mine sand and gravel. Concluding they did, the trial court granted summary judgment and entered judgment in the mineral rights holders’ favor. Affirming, the Court of Appeal stated: “At most, anticipated surface destruction through open-pit mining merely creates an ambiguity that Civil Code section 1069 resolves in favor of the mineral rights holders.” (Vulcan Lands, Inc. v. Victoria Older Currier (Cal. App. 4th Dist., Div. 1, Dec. 21, 2023) 2023 WL 8821307.)

State of California Was Not a Joint Employer of a Worker Who Was Working Under a State Welfare Program. 

Under Welfare & Institutions Code § 12300 et seq., certain disabled and elderly Californians are entitled to receive in-home services from third parties or family members, paid for with public funds. While working as a service provider under the program, a driver ran a stop sign and crashed into a car with six occupants, severely injuring some and killing one. The injured persons and family members of the deceased sued various persons, including the State of California, contending the worker was an employee of the state. The Court of Appeal concluded the state was not the worker’s employer as a matter of law, as it did not exercise control over the worker. (Yalung v. State of California (Cal. App. 5th Dist., Dec. 21, 2023) 2023 WL 8821363.)

Writ Sought by United States Department of Justice Denied. 

Petitioner United States of America sought a writ of certiorari: “Whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he was impeached but not convicted before the criminal proceedings begin.” The U.S. Supreme Court denied the writ. (United States v. Trump (U.S. Dec. 22, 2023) 2023 WL 8857247.)

Another Insurance Company Prevails in COVID-19 Claim. 

In March 2020, plaintiffs closed their hockey arenas because of the presence of the COVID-19 virus. Plaintiffs lost earnings due to canceled hockey games and limited fan access to games. The parties disputed whether losses plaintiffs incurred because of the COVID-19 pandemic are covered by a commercial insurance policy issued by defendant insurance company. The trial court struck most plaintiff’s coverage theories. Plaintiff filed a petition for extraordinary relief in the Court of Appeal. Denying plaintiff’s petition, the appeals court stated: “We conclude that the policies’ contamination exclusion, which the trial court did not reach, unambiguously operates to exclude viral contamination such that the trial court’s ultimate determination that plaintiffs cannot allege covered physical loss or damage to property is correct.” (San Jose Sharks, LLC v. Superior Court of Santa Clara County (Cal. App. 6th Dist., Dec. 21, 2023) 2023 WL 8827509.)

Welfare Benefit Plan’s Claims Not Preempted by ERISA. 

The administrator of a self-insured employee welfare benefit plan governed by the Employment Retirement Income Security Act of 1974 (29 U.S.C. §§ 1001 et seq.; ERISA) brought an action against defendant seeking damages related to an allegedly defective birth control device that caused injuries defendant allegedly did not disclose. The trial court sustained defendant’s demurrer without leave to amend, concluding ERISA preempted plaintiff’s claims because they related to an employee benefit plan. Reversing, the Court of Appeal held that plaintiff’s state law claims did not relate to an ERISA plan and were not preempted. (LHC Group, Inc. v. Bayer Corporation (Cal. App. 1st Dist., Div. 3, Dec. 22, 2023) 2023 WL 8861611.)

Filing a Federal Lawsuit Against Persons Protected by a Restraining Order Is a Constitutionally Protected Activity. 

Plaintiffs were protected by a restraining order issued pursuant to Code of Civil Procedure § 527.6. The trial court granted a five-year renewal of the restraining order. Reversing, the Court of Appeal stated: “We hold section 527.6, subdivision (j)(1) did not authorize the court to enter its order without Leahy making a showing of new harassment, i.e., Peterson’s wrongful acts within the meaning of section 527.6, subdivision (b)(3) occurring after issuance of the original restraining order. Though Leahy maintains he made this showing by presenting evidence Peterson filed a federal court lawsuit against him in 2021, this is constitutionally protected activity that cannot constitute harassment.” (Leahy v. Peterson (Cal. App. 4th Dist., Div. 1,Dec. 22, 2023) 2023 WL 8866567.)

Free Room and Board Are Remuneration for Care Custodian.

Under Probate Code § 21380, a term in a dependent adult’s testamentary instrument that makes a donative transfer to the adult’s “care custodian” is presumed to arise from fraud or undue influence if the former executed the instrument during the period when the latter provided services to the adult or within 90 days before or after that period. For purposes of § 21380’s presumption, however, a “care custodian” does not include a person “who provided services without remuneration if the person had a personal relationship with the dependent adult” as established by statutory criteria. Here, the decedent’s intestate heirs at law brought an action contending the decedent’s care custodian was being given remuneration. The trial court ruled that the defendant was not a care custodian because room and board did not constitute remuneration for her services, and she had a prior personal relationship with the decedent that met the other criteria set forth in § 21362, subdivision (a). Reversing, the Court of Appeal stated: “Free room and board in exchange for care services are remuneration for purposes of section 21362.” (Robinson v. Gutierrez (Cal. App. 3rd Dist., Dec. 26, 2023) 2023 WL 8888568.)

Defendant Used the Internet to Allegedly Defame Private Figures; Anti-SLAPP Motion Denied. 

Dissatisfied with the work done by a contracting company on her home, defendant reported the contractor to the Contractors State License Board. She also spent years attacking the contractor on her blog and on Yelp. The contractor sued defendant for libel per se, alleging the postings were false and defamatory. Defendant filed a special motion to strike pursuant to Code of Civil Procedure § 42.16. The trial court denied the motion. Affirming, the Court of Appeal stated: “Using the internet to speak publicly is every American’s right but, if people wish to defame private figures online, they do so at their own risk.” (Paglia & Associates Construction, Inc. v. Hamilton (Cal. App. 2nd Dist., Div. 8, Dec. 27, 2023) 2023 WL 8915539.)

Unforgiving 120-Day Statute of Limitations in Probate. 

Plaintiffs filed a lawsuit challenging the validity of a trust amendment that removed them as beneficiaries of their late grandmother’s trust. Plaintiffs alleged defendant, their aunt, forged the trust amendment to eliminate their interest in the trust. Defendant filed a demurrer to plaintiffs’ complaint on the ground that all of plaintiffs’ causes of action were time-barred under Probate Code § 16061.8. The trial court agreed and sustained the demurrer without leave to amend. Affirming, the Court of Appeal stated: “Would-be beneficiaries of a trust failed to bring a challenge within Probate Code section 16061.8’s 120-day statute of limitations. Here we decide they may not later bring a civil complaint alleging forgery of a purported trust amendment.” (Hamilton v. Green (Cal. App. 2nd Dist., Div. 4, Dec. 28, 2023) 2023 WL 8947126.)

Statutory Interpretation Vis-à-Vis Peace Officers’ Personnel Records. 

Journalists filed requests to obtain records in the possession of the California Attorney General relating to the discharge of a firearm by police officers. The trial court denied the request, citing Government Code § 11183, which prohibits disclosure of certain records. The journalists petitioned the Court of Appeal for extraordinary relief. In its analysis, the appeals court discussed that under Penal Code § 832.7, “records relating to officers who engage in specified types of harmful or unlawful conduct are deemed nonconfidential and must be made available for public inspection pursuant to the California Public Records Act, Government Code sections 7920.000 et seq. [(CPRA).]” However, under § 7927.705, the CPRA “does not require disclosure of records, the disclosure of which is exempted or prohibited pursuant to . . . state law.” Issuing a writ of mandate, the appellate court stated that “‘categorical application of Government Code section 11183’s disclosure prohibition stands in direct conflict with section 832.7(b)’s express contemplation that officer-related records “shall not be confidential and shall be made available for public inspection pursuant to the [CPRA].”’” (First Amendment Coalition v. Superior Court for the City and County of San Francisco (Cal. App. 1st Dist., Div. 3, Dec. 28, 2023) 2023 WL 9010851.)

Findings Necessary When Awarding Attorney Fees Under CCP § 1021.5.

Both a high school district and a city school district contended that the trial court erred in ordering them to pay the attorney fees incurred by charter school entities. In its analysis, the Court of Appeal discussed that Code of Civil Procedure § 1021.5 is an exception to the rule that parties to litigation pay their own attorney fees. “‘Derived from the judicially crafted “private attorney general doctrine” [citation], § 1021.5 is aimed at encouraging litigants to pursue meritorious public interest litigation vindicating important rights and benefitting a broad swath of citizens, and it achieves this aim by compensating successful litigants with an award of attorney’s fees.’ [Citation.]” Despite finding the trial court did not abuse its discretion in the amount awarded, the appeals court reversed and remanded because the trial court failed to evaluate whether the financial burden of private enforcement made the award appropriate, as required under § 1021.5 (b). (Grossmont Union High School District v. Diego Plus Education Corporation (Cal. App. 4th Dist., Div. 1, Dec. 29, 2023) 2023 WL 9014912.)

Error by Family Court in Excluding Video Showing Domestic Violence.

Under Family Code § 4320, a court is mandated to consider “all documented evidence of any history of domestic violence.” Here, the husband’s request to introduce a video of his wife’s domestic violence was denied by the family court. Finding error, the Court of Appeal stated: “Here, the family court erred in excluding the videotape because it was documented evidence of wife’s domestic violence.” (In re Marriage of Gilbert-Valencia and McEachen (Cal. App. 3rd Dist., Dec. 29, 2023) 2023 WL 9014761.)

Exonerated Inmate Not Entitled to Compensation for Time He Spent in Prison. 

Plaintiff had been convicted of crimes in California. A federal court granted his petition for habeas corpus based on insufficiency of evidence and he was released from prison. At that point, plaintiff applied for compensation for the time he was erroneously convicted. Under the statutes in effect at pertinent times, plaintiff was required to show he was factually innocent by a preponderance of evidence to be entitled to compensation. The administrative board denied his request for compensation, and the trial court denied his petition for administrative mandamus. Two issues were before the Court of Appeal:

(1) Does the grant of habeas corpus due to insufficiency of evidence to support conviction beyond a reasonable doubt automatically establish factual innocence?

(2) Are the habeas court’s findings binding in subsequent administrative hearings?

Noting that the administrative board found plaintiff’s testimony to be not credible and that the habeas court could not find plaintiff’s trial testimony credible because he did not testify at trial, the appellate court affirmed. (Gonzales v. California Victim Compensation Board (Cal. App. 2nd Dist., Div. 2, Dec. 29, 2023) 2023 WL 9016418.)

Forgot Password

Enter the email associated with you account. You will then receive a link in your inbox to reset your password.

Personal Information

Select Section(s)

CLA Membership is $99 and includes one section. Additional sections are $99 each.