Litigation

Litigation Update: January 2025

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

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Julia C. Shear Kushner
  • Editors, Dean Bochner, Colin P. Cronin, Austin Evans, Jenn French, Jennifer Hansen, Ryan Wu
It’s a Crime to Help Another Person Obtain an Abortion, Even If Legal in the State Where It Occurs.

In yet another challenge to a state law post-Dobbs v. Jackson Women’s Health Organization (2022) 597 U.S. 215, plaintiffs contested Idaho’s “abortion trafficking” statute. That statute criminalizes the act of “procur[ing] an abortion” or “obtain[ing] an abortion-inducing drug” for an unemancipated minor by “recruiting, harboring, or transporting [a] pregnant minor” with the intent to conceal the abortion from the minor’s parents or guardian. This provision appears to be the first post-Dobbs statute to criminalize the act of helping another person obtain an abortion, even if that abortion is legal in the state where it occurs. Plaintiffs contended the statute violates the First Amendment and is void for vagueness. The district court granted an injunction on both grounds. Affirming in part and reversing in part, the Ninth Circuit stated: “We affirm the injunction in part because the statute’s provision on ‘recruiting’ violates the First Amendment by prohibiting ‘a substantial amount of protected speech relative to its plainly legitimate sweep.’ [Citation.] However, we reverse the district court insofar as the ‘recruiting’ provision is severable from the other statutory provisions, including the prohibition of ‘harboring and transporting,’ which do not violate Challengers’ First Amendment rights. We also conclude that the statute is neither void for vagueness nor facially in violation of the First Amendment rights of association.” (Matsumoto v. Labrador (9th Cir., Dec. 2, 2024) 122 F.4th 787.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/02/23-3787.pdf

Late Payment of Arbitrator Fee When the Agreement to Arbitration Was Post-Dispute.

Plaintiff sued her former employer and four former coworkers. The parties entered into a stipulation for arbitration, which the trial court later signed as an order. Defendant timely paid the arbitrator’s invoices for over a year. On October 18, 2022, the arbitrator requested payment for an invoice bearing a due date of September 12, 2022, which defendant immediately paid. That evening, plaintiff gave notice of her intent to withdraw from arbitration due to the late payment. Plaintiff moved to withdraw from arbitration pursuant to Code of Civil Procedure section 1281.98, and the trial court granted the motion. Reversing, the Court of Appeal stated: “We find [Code of Civil Procedure] section 1281.98, subdivision (a) does not apply because the parties did not submit to arbitration pursuant to any pre-dispute agreement and because [defendant]] does not qualify as a ‘drafting party’ as defined by [Code of Civil Procedure] section 1280, subdivision (e).” (Trujillo v. J-M Manufacturing Company, Inc. (Cal. App. 2nd Dist., Div. 8, Dec. 2, 2024) 107 Cal.App.5th 56.)

https://www4.courts.ca.gov/opinions/documents/B327111.PDF

Challenge to Gasoline Prices Unsuccessful Because of UCC Presumption of Good Faith.

Owners of Mobil-branded gas stations in southern California are required by agreement to purchase their gas from Circle K, which purchases the gas it sells to the stations’ suppliers from ExxonMobil, a refiner. The gas station owners sued Circle K, contending the price of gas was not set in good faith. Because the contract had a “price in effect” term, under Uniform Commercial Code § 2-305(2), codified as California Commercial Code § 2305(2), the prices charged by Circle K were presumptively set in good faith. The district court granted summary judgment for Circle K. Affirming, the Ninth Circuit stated: “It is undisputed that Circle K’s prices were lower than at least one refiner. The district court was therefore correct in finding that Circle K’s prices were ‘in the range’ of those charged by its competitors.” (Windy Cove, Inc. v. Circle K Stores Inc. (9th Cir., Dec. 3, 2024) 121 F.4th 1355.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/03/23-2679.pdf

Plaintiff Did Not Produce Evidence Insurance Agent Had Authority to Bind Insurance Company.

Plaintiff owns property in Malibu. She obtained an insurance policy to insure the property against fire loss through FAIR Plan. FAIR Plan “is an insurance industry placement facility and joint reinsurance association created by the Legislature in 1968 to ensure that homeowners who live in high risk or otherwise uninsurable areas have access to basic property insurance.” At the same time and through the same independent insurance agent, plaintiff obtained a homeowner’s insurance policy from Farmers to cover the property against perils not covered by the FAIR Plan policy. Months later, the property suffered severe fire loss. The FAIR Plan covered part of the loss and Farmers denied plaintiff’s claim for the remainder of the loss. Plaintiff sued Farmers but the trial court granted summary judgment for Farmers. Affirming, the Court of Appeal stated: “[Plaintiff] submitted no evidence to show [the independent insurance agent] had authority to transact insurance business on Farmers’ behalf beyond the scope of the agreement, such that she had the authority to bind Farmers as its actual agent when she assisted [plaintiff] in obtaining the FAIR Plan policy.” (Hughes v. Farmers Insurance Exchange (Cal. App. 2nd Dist., Div. 7, Dec. 3, 2024) 107 Cal.App.5th 73.)

https://www4.courts.ca.gov/opinions/documents/B331083.PDF

Insurance Policy Exclusion Applied.

Three plaintiffs sued the owner of a massage parlor for alleged sexual assaults. The massage parlor was covered by a commercial insurance policy. Plaintiffs and defendant stipulated to liability and a judgment for $6.8 million. Defendant assigned his rights under the policy to plaintiffs in exchange for a covenant not to execute on the judgment against him. Plaintiffs then sued the insurance company. The trial court granted summary judgment for the insurance company. On appeal, plaintiffs contended the policy’s sexual abuse exclusion did not apply because the person who assaulted them was negligently trained. Affirming, the Court of Appeal stated: “An insurance policy exclusion need not use the word ‘training’ for the exclusion to apply, so long as the complaint alleges the abuse or molestation arose out of the negligent employment or supervision of the employee.” (Gordon v. Continental Casualty Company (Cal. App. 2nd Dist., Div. 7, Dec. 3, 2024) 107 Cal.App.5th 89.)

https://www4.courts.ca.gov/opinions/documents/B329455.PDF

Party Found to Be Equitably Estopped from Avoiding Arbitration.

The trial court denied defendants’ motion to compel arbitration because, while one of the ten defendants had an arbitration agreement with plaintiff, nine of the defendants did not. Reversing, the Court of Appeal held: “[W]e conclude the trial court incorrectly denied the [motion of the entities who had no written arbitration agreement with plaintiff] to compel arbitration because all of [plaintiff’s] claims against them are intimately founded in and intertwined with the employment agreement with [the entity that did have an arbitration agreement with plaintiff], an agreement which contains an arbitration provision.” “We hold [plaintiff] is equitably estopped from avoiding arbitration with the [entities who had no written arbitration agreement with plaintiff].” (Gonzalez v. Nowhere Beverly Hills LLC (Cal. App. 2nd Dist., Div. 1, Dec. 3, 2024) 107 Cal.App.5th 111.)

https://www4.courts.ca.gov/opinions/documents/B328959.PDF

No Discrimination Against the Disabled Under the Fair Housing Act.

Plaintiff operates a sober-living home in Costa Mesa for individuals recovering from addiction. In recent years, the city has changed its regulations governing the ability of group-living facilities to operate in residential zones. Plaintiff challenged the city’s zoning laws as discriminatory against the disabled in violation of the Fair Housing Act (42 U.S.C. § 3601 et seq.), California’s Fair Employment and Housing Act (Gov. Code, § 12940) and the California Planning and Zoning Law (Gov. Code, § 65008). The district court granted partial summary judgment for the city and a jury returned a verdict for the city on plaintiff’s remaining claims. Affirming, the Ninth Circuit held that plaintiff failed to establish facial disparate treatment as a matter of law because the differential treatment under the city’s group-living regulations facially benefits the protected class of disabled people. (The Ohio House, LLC v. City of Costa Mesa (9th Cir., Dec. 4, 2024) 122 F.4th 1097.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/04/22-56181.pdf

Injunction Ordered Because Idaho A.G.’s Interpretation of Abortion Statute Silences Healthcare Providers.

An Idaho law criminalizes performing or attempting to perform an abortion as a felony punishable by two to five years in prison. It also imposes professional licensing penalties on any health care professional who “assists in performing or attempting to perform an abortion.” The Idaho Attorney General wrote a letter on his official stationery to a state legislator stating he interpreted the word “assists” as prohibiting medical providers from referring a patient across state lines to an abortion provider. The letter was published on a third-party website. Planned Parenthood and two physicians sued, alleging the statute as interpreted by the attorney general violates the First Amendment, the due process clause of the Fourteenth Amendment, and the commerce clause. Based on the First Amendment, the district court preliminarily enjoined the attorney general from enforcing the statute in accordance with the interpretation set forth in his letter. Affirming, the Ninth Circuit stated: “The Attorney General’s interpretation of § 18-622(1) in the Opinion Letter is a content-based restriction on speech because it silences healthcare providers on the specific topic of abortion.” (Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky v. Labrador (9th Cir., Dec. 4, 2024) 122 F.4th 825.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/04/23-35518.pdf

No Mandatory Duty of County to Notify a Relative About Removal Warrant.

The parents of a four-year-old abused and eventually killed the child. The child had been removed from them multiple times. The child’s great-grandmother sued the County of Los Angeles for negligently failing to notify her of a removal warrant it obtained but failed to execute. The trial court overruled the county’s demurrer, holding the county had a mandatory duty under Welfare and Institutions Code § 361.3 to notify plaintiff about the removal warrant. The county sought extraordinary relief. Issuing a writ of mandate, the Court of Appeal stated: “We now hold that section 361.3 does not impose on the County a mandatory duty to notify a relative who requested preferential consideration for placement of an application for a protective custody warrant pursuant to Welfare and Institutions Code section 340 or a court order granting such a warrant prior to the minor’s removal from physical parental custody.” (County of Los Angeles v. Superior Court (Cal. App. 2nd Dist., Div. 4, Nov. 13, 2024) 107 Cal.App.5th 160.)

https://www4.courts.ca.gov/opinions/documents/B339093.PDF

Action Should Not Have Been Dismissed.

Plaintiffs filed suit against the San Francisco Unified School District claiming their minor daughter’s teacher physically abused her. The trial court sustained defendants’ unopposed demurrer and granted their unopposed motion to strike portions of plaintiffs’ complaint with leave to amend, but did not specify a deadline to amend. Several weeks after the time to amend expired under an applicable rule of court, plaintiffs filed a “[r]evised” version of their complaint, but the trial court did not consider this filing to be an amended complaint. Defendants then filed a motion to dismiss the action under Code of Civil Procedure § 581, subdivision (f)(2)(4), which the court granted. Reversing, the Court of Appeal stated: “[T]he filing of an amended complaint, even if untimely, precludes dismissal under section 581, subdivision (f)(2), unless and until the amended complaint is stricken. Here, plaintiffs’ ‘[r]evised’ pleading should have been treated as an amended complaint, and accordingly, should have precluded dismissal of the action. We therefore reverse the judgment and the order granting the motion to dismiss, and we remand for further proceedings.” (Bai v. Yip (Cal. App. 1st Dist., Div. 3, Dec. 5, 2024) 107 Cal.App.5th 188.)

https://www4.courts.ca.gov/opinions/documents/A169027.PDF

No Judicial Review of Denial of Visa Petition by Secretary of Homeland Security.

Plaintiff is a U.S. citizen who married a noncitizen who is a Palestinian national. They have three young children. A U.S. citizen may kick off the visa process by filing an immigrant visa petition on behalf of a spouse with the United States Citizenship and Immigration Services (USCIS). If USCIS approves the petition, the noncitizen may then apply for an immigrant visa to enter the country as a lawful permanent resident, or, if already in the country, for adjustment of status. USCIS initially approved plaintiff’s visa petition for her husband, but two years later, USCIS sent her a notice of intent to revoke its approval because it discovered the husband had previously entered into a sham marriage with another woman. Plaintiff challenged the revocation in federal court, and the district court dismissed her action. The Eleventh Circuit affirmed the dismissal of the action. Affirming, the U.S. Supreme Court stated: “Congress granted the Secretary broad authority to revoke an approved visa petition ‘at any time, for what he deems to be good and sufficient cause.’ Such a revocation is thus ‘in the discretion of’ the agency. [Citation.] Where [8 U.S.C.] §1252(a)(2)(B)(ii) applies, then, it bars judicial review of the Secretary’s revocation. . . .” (Bouarfa v. Mayorkas (U.S., Dec. 10, 2024) 2024 WL 5048700.)

https://www.supremecourt.gov/opinions/24pdf/23-583_onjq.pdf

Class Action Certification Reversed.

In 2012, the California Legislature enacted Insurance Code §§ 10113.71 and 10113.72 to prevent people who hold life insurance policies from inadvertently losing them due to nonpayment of premiums. One of the statutory requirements is that the insurance company must send notice of pending lapse and termination of a life insurance policy at least 30 days prior to the effective date of termination if termination is for nonpayment of premium. Here, the named plaintiff and her husband paid the premiums on a life insurance policy for 26 years until they missed a payment in 2016. The insurance company terminated the policy but did not give the required notice. Plaintiff’s husband died in 2018, and the defendant insurance company denied plaintiff’s claim for the policy proceeds. Plaintiff brought a class action, and the district court certified the class. The class has two subclasses: (1) owners of policies with currently living insureds seeking to have policies reinstated; and (2) beneficiaries of policies with deceased insureds seeking breach of contract damages. Reversing, the Ninth Circuit held that under California law, a plaintiff must show both the insurer’s violation and that the violation caused plaintiff harm. The Ninth Circuit concluded: “We hold that [plaintiff] is an inadequate representative and her claim is atypical of both Subclasses.” (Small v. Allianz Life Insurance Co. of North America (9th Cir., Dec. 10, 2024) 122 F.4th 1182.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/10/23-55821.pdf

Arbitrator’s Award Precludes Claims Under the Sarbanes-Oxley Act Despite the Fact an Arbitrator Can Never Preclude Such a Claim.

Plaintiff brought this action against Tesla’s CEO Elon Musk, and other defendants, contending they retaliated against him for reporting misconduct to Tesla management and the U.S. Securities and Exchange Commission. Defendants moved to compel arbitration of most of plaintiff’s claims, except his claims under the Sarbanes-Oxley Act of 2002 (18 U.S.C. § 1514A(e); SOX), which prevents SOX claims from being subject to mandatory predispute arbitration agreements. Some of the issues decided by the arbitrator in plaintiff’s non-SOX claims precluded relitigation of the same issues in his SOX claims. The district court confirmed the arbitrator’s award and dismissed the entire action. Affirming, the Ninth Circuit stated: “We hold that, although an arbitrator’s decision can never preclude a SOX claim, a confirmed arbitral award can sometimes preclude relitigation of the issues underlying such a claim.” (Hansen v. Musk (9th Cir., Dec. 10, 2024) 112 F.4th 1162.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/10/23-15296.pdf

Civil Action Against Police for Excessive Force Tossed.

Two police officers responded to reports of a man walking around a residential neighborhood in the middle of the night with a “machete” or a “slim jim,” behaving suspiciously, and walking up to cars and houses. When they arrived, they attempted to engage the man for several minutes, but he refused to follow their commands and repeatedly advanced towards them with what they believed was a long, bladed weapon. When he advanced upon them a final time with the weapon, coming within nine feet, both officers fired their weapons and killed him. The deceased’s parents and administrators of his estate sued the officers and the police department, alleging constitutional and state law claims. Defendants moved for summary judgment, and the district court granted their motion, determining that the officers’ use of force was reasonable as a matter of law. Affirming, the Ninth Circuit stated: “Plaintiffs have not shown that [the officers’] actions were objectively unreasonable in violation of [the deceased’s] Fourth Amendment rights or that such rights were clearly established.” (Napouk v. Las Vegas Metropolitan Police Department (9th Cir., Dec. 10, 2024) 123 F.4th 906.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/10/23-15726.pdf

Court’s Award of Costs Under Code of Civil Procedure § 998 Held Violative of Labor Code in Wage and Hour Case.

In a wage and hour case, a jury awarded plaintiff an amount lower than the defendant’s offer made under Code of Civil Procedure § 998. The trial court awarded costs for defendant under § 998 because plaintiff failed to obtain a more favorable judgment at trial. Reversing, the Court of Appeal stated: “In the case before us, there are specific Labor Code provisions pertaining to four of the causes of action Zarate raised in his complaints” “We reverse the court’s award of costs to defendants made pursuant to section 998 as being in violation of Labor Code sections 1194 and 218.5.” (Chavez v. California Collision, LLC (Cal. App.1st Dist., Div. 3, Dec. 10, 2024) 107 Cal.App.5th 298.)

https://www4.courts.ca.gov/opinions/documents/A167658.PDF

No Representation for Death Row Prisoner.

A California state prisoner sentenced to death brought a 52 U.S.C. § 1983 claim alleging that California Supreme Court justices and superior court judges violated his federal due process rights by failing, for 26 years, to appoint postconviction habeas counsel as required by California law. By statute, California promised the prisoner appointed counsel if he requested it. The state provided none. As a result, the prisoner alleged, he was unable to investigate and develop his habeas claims, as witnesses have become unavailable, evidence was lost, and memories faded. In October 2023, a three-judge panel of the Ninth Circuit ruled that the prisoner had been deprived of a protected property interest—the right under state law to representation in habeas proceedings—for over a quarter century. (Redd v. Guerrero (9th Cir. 2023) 84 F.4th 874, 901.) The prisoner died two months after the opinion issued, rendering the appeal moot. The panel, in its discretion, declined to vacate its opinion. The Ninth Circuit declined to rehear en banc. (Redd v. Guerrero (9th Cir., Dec. 11, 2024) 122 F.4th 1203.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/11/21-55464.pdf

HHS Secretary Exceeded His Authority by Artificially Inflating Medicare’s Wage Index.

Medicare reimburses hospitals based on a standardized rate for medical services—except that the rate must be adjusted for regional wage differences. Hospitals’ labor costs can vary among geographic regions. Congress thus directed the Secretary of the U.S. Department of Health and Human Services (HHS) to establish a “wage index” that “reflects” area wage differences and to adjust the Medicare payment rates accordingly. So, a hospital in a higher wage area receives a higher reimbursement rate for its services than one in a lower wage area. In 2020, the secretary tinkered with the wage index by inflating the Medicare payment rates for the lowest quartile of hospitals—and paid for it by reducing payments to all the hospitals by a small percentage, in order to help recruit and retain medical staff in lower-income, and often rural, communities. The district court found the HHS Secretary exceeded his authority in establishing the 2020 wage index. Affirming, Ninth Circuit stated: “While the Secretary may have had a laudable goal in tilting the wage index in favor of the lower-wage hospitals, Congress did not empower him to do so. And under our system of separation of powers, neither good intentions nor pressing policy problems can substitute for an agency’s lack of statutory authority to act.” (Kaweah Delta Health Care District v. Becerra (9th Cir., Dec. 11, 2024) 123 F.4th 939.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/11/23-55157.pdf

Plaintiff Satisfied Public Interest Exception to Anti-SLAPP Statute.

Plaintiff brought a class action against defendants, alleging illegal loan practices in their attempts to collect on her student loan. Defendants filed an anti-SLAPP motion pursuant to Code of Civil Procedure § 425.16, and plaintiff raised the public interest exception in Code of Civil Procedure § 425.17. The trial court granted the motion. Reversing, the Court of Appeal stated: “Because Lindsay’s action satisfied each of the requirements of the public interest exception to the anti-SLAPP law, we conclude the action was exempt from application of the anti-SLAPP law.” (Lindsay v. Patenaude & Felix APC (Cal. App. 4th Dist., Div. 1, Dec. 11, 2024) 107 Cal.App.5th 335.)

https://www4.courts.ca.gov/opinions/documents/D082750.PDF

“Plaintiffs, do not try to turn your default judgment into a windfall,” Court of Appeal.

Plaintiff paid plumber #1, defendant here, $47,883.40 to fix a rusty old sewer pipe when its toilets backed up. Plaintiff had to hire plumber #2 because the work of plumber #1 was poor. Plaintiff then sued plumber #1, who appeared but then defaulted. Plaintiff submitted a default package for $1,081,263.80, which included an attorney fee request of $308,376.75 and a punitive damage demand of $500,000. The trial court entered a default judgment of $120,319.22, which included attorney fees. Plaintiff appealed.  Affirming, the Court of Appeal stated: “This judgment of $120,319.22 was $960,944.58 less than LCPFV’s demand but was generous in the context of this case. [¶] LCPFV appeals its judgment as paltry. The trial court, however, was a dutiful gatekeeper. . . . We applaud the trial court’s vigilance.” (LCPFV, LLC v. Somatdary Incorporated (Cal. App. 2nd Dist., Div. 8, Dec. 11, 2024) 106 Cal.App.5th 743.)

https://www4.courts.ca.gov/opinions/documents/B325599M.PDF

Coastal Commission Lost Due to Lack of Substantial Evidence.

In 2018, plaintiff homeowners association (HOA) applied for a coastal development permit to construct a 257-foot seawall that would protect several structures and a coastal trail along a coastal bluff in Half Moon Bay in danger from erosion. The proposed seawall would completely armor and protect the bluff downcoast of the apartments. A few years prior, approximately 20 feet of the bluff eroded and collapsed during heavy rains. The California Coastal Act of 1976 (Pub. Resources Code, § 30000 et seq.) authorizes construction—such as a seawall—that alters the natural shoreline when necessary “to serve coastal-dependent uses or to protect existing structures . . . in danger from erosion.” The California Coastal Commission determined some condominiums and a sewer line were not entitled to any seawall or other protection, concluding a coastal trail could be relocated away from the ocean rather than protected with a seawall. The trial court construed “existing structures” to mean structures that presently exist at the time an applicant seeks a coastal development permit. Ultimately, the trial court decided for the HOA and issued a writ of mandate ordering the commission to set aside its decision. Primarily ruling in favor of the HOA, the Court of Appeal stated: “The California Coastal Commission [] construes ‘existing structures’ to mean structures that existed prior to January 1, 1977, the effective date of the Coastal Act. On that basis, it denied the request of Casa Mira Homeowners Association [] and its members for a coastal development permit to build a seawall to protect a condominium complex and sewer line built in 1984. It also concluded a 50-foot — rather than a 257-foot — seawall was sufficient to protect the California Coastal Trail [] and an apartment complex built in 1972, both in danger of erosion. The Commission determined that relocating the trail inland was a feasible alternative to shoreline armoring. . . . [¶] . . . [¶]  . . . The judgment is affirmed as to the trial court’s determination that there is no substantial evidence supporting the Commission’s finding that armoring was unnecessary to protect the Coastal Trail.” (Casa Mira Homeowners Association v. California Coastal Commission (Cal. App. 1st Dist., Div. 3, Dec. 12, 2024) 107 Cal.App.5th 370.)

https://www4.courts.ca.gov/opinions/documents/A168645M.PDF

Whistleblower to Be Awarded Attorney Fees.

Plaintiff is “an African American male” who worked for 30 years with Los Angeles County. He sued the county for race discrimination, and a jury held in his favor on his claim of retaliation after whistleblowing. While plaintiff’s case was pending, Labor Code § 1102.5 was amended, effective January 1, 2021, to add a provision authorizing courts to award reasonable attorney fees to whistleblower plaintiffs who prevail against their employer under § 1102.5. The trial court denied plaintiff’s request for attorney fees. Reversing, the Court of Appeal stated: “Case precedent establishes that a new statute authorizing an award of attorney fees applies to actions pending on the statute’s effective date. On remand we direct the trial court to determine, in the first instance, the appropriateness and reasonableness of the fee request.” (Winston v. County of Los Angeles (Cal. App. 2nd Dist., Div. 8, Dec. 13, 2024) 107 Cal.App.5th 402.)

https://www4.courts.ca.gov/opinions/documents/B323392.PDF

The People Have No Right to Appeal, but May Seek Writ Relief When Trial Court Exceeds Its Jurisdiction Pretrial.

Penal Code §17, subdivision (b) identifies circumstances in which a court may declare an alternative felony-misdemeanor offense, a wobbler, that has been charged as a felony to be a misdemeanor. The criminal defendant in this case was charged with such an offense, and the trial court reduced the felony count to a misdemeanor, but the trial court made the order prior to trial and after the preliminary hearing. The People sought review of the trial court’s order by filing both an appeal and a petition for writ of mandate in the Court of Appeal. When the case reached the California Supreme Court, the court concluded the People had no right to appeal, but held: “We hold that a trial court’s unauthorized order reducing a wobbler offense charged as a felony to a misdemeanor is an act in excess of jurisdiction, and it is therefore reviewable by writ when the balance of interests supports the intervention of a higher court.” (People v. Superior Court of Ventura County (Cal., Dec. 12, 2024) 17 Cal.5th 228.)

https://www4.courts.ca.gov/opinions/revpub/B326653.PDF

Management Company’s Maintenance Obligations Secured by a Deed of Trust. 

The defendant/cross-complainant is a homeowners association (HOA), the governing body of a gated community of 1,586 single-family homes in Murrieta. Within the community is an 18-hole golf course with landscaped extensions called “fingers” that create open space among the homes. In 2007, the prior owners sold the golf course to plaintiff/cross-defendant. By the terms of the purchase agreement, plaintiff/cross-defendant assumed the obligations of the prior owners to use the property only as a golf course, to maintain it in at least as good condition as that of other similar golf courses in the area, and to maintain and water the fingers in a manner acceptable to the HOA. The grant deed by which plaintiff/cross-defendant acquired title to the property contained the same maintenance obligations. After plaintiff/cross-defendant took over the golf course, grass and trees died, a lake dried up, and landscaping otherwise deteriorated. The trial court entered judgment directing plaintiff/cross-defendant to perform maintenance obligations which performance was secured by the deed of trust. Other than finding the trial court erred in assigning value to plaintiff/cross-defendant’s performance deed of trust, the Court of Appeal affirmed, stating: “A party whose own act or omission makes performance impossible or impracticable may not assert such impossibility or impracticability to excuse performance.” (Majestic Asset Management LLC v. The Colony at California Oaks Homeowners Association (Cal. App. 4th Dist., Div. 1, Dec. 16, 2024) 107 Cal.App.5th 413.) 

https://www4.courts.ca.gov/opinions/documents/D082407.PDF

One Part of Defendant’s Two Separate § 998 Offers Was Valid to Trigger Cost Shifting. 

Plaintiffs sued defendant car manufacturer under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.), alleging defendant failed to honor its warranty obligations. Defendant offered to have judgment entered against it pursuant to Code of Civil Procedure § 998, which offer provided plaintiff with a choice between a $65,000 option and a statutory option. Plaintiffs did not accept the offer. After plaintiffs prevailed at trial, the trial court entered judgment for plaintiffs in the amount of $276,104.61 for attorney fees and costs. On appeal, defendant contended the trial court erred in awarding fees and costs to plaintiffs because the offer to compromise was sufficiently specific and certain to trigger § 998’s cost shifting provisions. Agreeing with defendant and reversing, the Court of Appeal stated: “We conclude that HMA’s offer to compromise was valid to trigger cost shifting under section 998 because it contained two independent options for Zavala to consider, one of which was sufficiently specific and certain and in an amount greater than the jury’s eventual verdict. The trial court erred because it did not separately consider the validity of the two separate offers and therefore improperly concluded that the offer to compromise, as a whole, was invalid due to the lack of specificity of one of the options.” (Zavala v. Hyundai Motor America (Cal. App. 4th Dist., Div. 1, Dec. 17, 2024) 2024 WL 5135020.)

https://www4.courts.ca.gov/opinions/documents/D082747.PDF

Prosecutor’s Use of Peremptory Challenge for Black Juror in Trial of Black Defendant. 

A jury convicted a Black criminal defendant of certain crimes. On appeal, defendant argued the trial court prejudicially erred in denying his motion under Code of Civil Procedure § 231.7, challenging the prosecutor’s use of a peremptory challenge to strike a Black female prospective juror, the sole Black juror in the jury box at that time. Reversing the defendant’s conviction, the Court of Appeal stated: “Thus, the record makes clear that the prosecutor’s concern with the terseness of PJ No. 15 involved the way she responded to questions, not the substance of her answers. Put differently, the record clearly indicates that the prosecutor was primarily, if not entirely, concerned with PJ No. 15’s attitude.” People v. Barnes (Cal. App. 4th Dist., Div. 1, Dec. 18, 2024) 2024 WL 5164637.)

https://www4.courts.ca.gov/opinions/documents/D084512.PDF

Selective Prosecution Discovery Order Reversed.

In summer 2020, nationwide protests followed the death of George Floyd. In some cities, the protests escalated into rioting and property destruction. Public officials promised to prosecute the rioters responsible for the violence and destruction. On May 31, 2020, the two criminal defendants here allegedly joined a protest in Santa Monica and set fire to a police car. They were both federally indicted on one count of arson. Defendants moved to dismiss their indictment, arguing that they were unconstitutionally singled out for prosecution based on the perception that they held anti-government views. Alternatively, defendants sought discovery on their selective-prosecution claim. The district court denied defendants’ motion for dismissal but granted them discovery regarding selective prosecution. But after the government indicated that it would seek appellate review rather than produce the ordered discovery, the district court dismissed the indictment without prejudice. On appeal, the government contended the lower court erred in ordering selective-prosecution discovery, and defendants contended the Ninth Circuit lacked appellate jurisdiction. After concluding it had jurisdiction, the appeals court reversed, stating: “To show discriminatory effect sufficient to warrant discovery, a defendant must ‘produce some evidence that similarly situated defendants . . . could have been prosecuted, but were not.’ . . . Because Defendants failed to meet their burden to produce some evidence that similarly situated individuals could have been prosecuted but were not, we reverse the district court’s selective-prosecution discovery order and its dismissal of the Defendants’ indictment without prejudice, and we remand for further proceedings consistent with this opinion.” We conclude that we have jurisdiction, and we reverse and remand. (United States of America v. Wilson (9th Cir., Dec. 19, 2024) 123 F.4th 1021.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/19/23-50016.pdf

Summary Judgment Reversed in Case Involving Sherman Act Violation Allegations. 

Plaintiff alleged defendant illegally conditioned sales of its business management software on sales of its backend database engine in violation of the Sherman Act (15 U.S.C. § 1). The district court precluded plaintiff from using expert testimony on market definition and market-power conclusions that followed from it.  Reversing summary judgment for defendant, the Ninth Circuit stated: “The district court determined that Asker’s testimony about market definition and harm to competition was premised on unreliable methodologies. . . . We disagree and conclude that the court abused its discretion in excluding Asker’s testimony.” (Teradata Corporation v. SAP SE (9th Cir., Dec. 19, 2024) 2024 WL 5163082.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/19/23-16065.pdf

A Cause of Action for Breach of the Real Estate Brokers’ Fiduciary Duties Is Assignable. 

Plaintiff sued defendant real estate brokers and real estate company for breach of the fiduciary duty defendants owed to plaintiff’s father in connection with the sale of his Malibu house. The complaint alleged that plaintiff’s father assigned plaintiff his causes of action arising from the listing and sale of the house. The trial court granted defendants’ motion for summary judgment, concluding plaintiff lacked standing to sue because the cause of action for breach of fiduciary duty was not assignable under Civil Code § 954 (“A thing in action, arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner.”). Reversing, the Court of Appeal stated: “As a matter of first impression, we hold that plaintiff’s cause of action for breach of the real estate brokers’ fiduciary duties, which seeks only damages related to property rights and pecuniary interests, is assignable.” (Lazar v. Bishop (Cal. App. 2nd Dist. Div. 3, Dec 19, 2024) 2024 WL 5182189.)

https://www4.courts.ca.gov/opinions/documents/B321752.PDF

Public Entity Satisfied Burden of Showing Discretionary Approval as a Matter of Law. 

A bicyclist was struck and killed by a vehicle as she was crossing a marked, non-signalized crosswalk on an onramp from Jeffrey Road in the City of Irvine leading to the I-405 freeway northbound. Her parents sued for dangerous condition of public property, and the trial court granted defendant’s motion for summary judgment. Affirming, the Court of Appeal stated: “Here, Caltrans presented undisputed evidence of discretionary approval of the 1967 plans, the 2006 plans, and the 2015 plans through the declarations of Caltrans employees. . . .” (Kabat v. Department of Transportation (Cal. App. 4th Dist. Div. 3, Dec. 19, 2024) 2024 WL 5183240.)

https://www4.courts.ca.gov/opinions/documents/G063082.PDF

Co-Tenancy Provision Is Not Unreasonable Penalty Liquidated Damages. 

California Civil Code § 1671 prohibits the enforcement of liquidated damages provisions when they operate as unreasonable penalties for contractual breach. The parties disputed whether a co-tenancy provision that allows a commercial tenant to pay a reduced rent when a shopping center’s number of anchor tenants or occupancy level of retailers falls below a specific threshold was valid as an alternative performance of the contract or whether it was a penalty subject to section 1671’s reasonability limitation. The California Supreme Court upheld the co-tenancy provision as reflecting the parties’ agreement regarding acceptable alternative performance of agreed upon contract obligations, explaining: “If [plaintiff owner of the shopping center] wishes to avoid receiving a lower level of rent, it can choose to make inducements to attract additional anchor tenants or raise the overall occupancy rate. These efforts may include offering favorable lease terms, providing additional amenities to tenants, or renegotiating important leases. The totality of the relevant economic circumstances here belies [plaintiff’s] characterization of the clause as a penalty.” (JJD-HOV Elk Grove, LLC v. Jo-Ann Stores, LLC (Cal., Dec. 19, 2024) 2024 WL 5164746.)

https://www4.courts.ca.gov/opinions/documents/S275843.PDF

Arbitration Agreement Procedurally and Substantively Unconscionable. 

The trial court denied defendant employer’s motion to compel arbitration, based on an agreement signed by plaintiff on the first day on the job. Affirming, the Court of Appeal stated: “We conclude the Agreement is procedurally unconscionable based on (1) the inequality of bargaining power between the parties, (2) the signing of the Agreement by the Chief People Officer four months before the Agreement was presented to respondent, and (3) the absence of the Chief People Officer when the Agreement was presented to respondent.” As to substantive unconscionability, the appeals court stated: ““[t]he shortened [one-year] limitations period provided by [appellant’s] arbitration agreement is unconscionable and insufficient to protect its employees’ right to vindicate their statutory rights.” (Jenkins v. Dermatology Management, LLC (Cal. App. 2nd Dist., Div. 6, Dec. 19, 2024) 2024 WL 5182213.)

https://www4.courts.ca.gov/opinions/documents/B333759.PDF

Lis Pendens on Property Purchased with Trust Assets Involved a Real Property Claim Within the Meaning of CCP § 405.4. 

Plaintiff was initially the trustee and sole beneficiary of her parents’ trust. But after her father died in his early 90s, she learned he had amended the trust to name his 56-year-old caregiver as the trust’s trustee and sole beneficiary. Plaintiff filed a petition challenging the validity of the trust amendments. And when plaintiff discovered the caregiver used trust assets to purchase real property, plaintiff recorded a lis pendens against the property and amended her petition to include, among other things, a request to impose a constructive trust on the property. The caregiver moved to expunge the lis pendens under Code of Civil Procedure § 405.31.1. The probate court granted the motion, ruling plaintiff’s petition did not contain a “real property claim,” within the meaning of Code of Civil Procedure § 405.4. Issuing a peremptory writ of mandate, the Court of Appeal stated: “Because Newell’s petition, if successful, would affect title to the property, she pleaded a real property claim. Therefore, we grant Newell’s petition for writ of mandate, direct the probate court to vacate its order granting the motion to expunge, and direct the court to enter a new order denying the motion.” (Newell v. Superior Court (Cal. App. 2nd Dist., Div. 7, Dec. 20, 2024) 2024 WL 5182187.)

https://www4.courts.ca.gov/opinions/documents/B339383.PDF

Previously we reported: Anti-Muslim Discrimination Alleged Against the FBI.

Three Muslim residents of Southern California allege that, for more than a year, the FBI paid a confidential informant to conduct a covert surveillance program that gathered information about Muslims based solely on their religious identity. The three plaintiffs filed a putative class action against the United States, the FBI, and two FBI officers in their official capacities, and against five FBI agents in their individual capacities. Alleging that the investigation involved unlawful searches and anti-Muslim discrimination, they pleaded eleven constitutional and statutory causes of action. The government asserted the state secrets privilege and moved to dismiss the discrimination claims, but not the Fourth Amendment or the Foreign Intelligence Surveillance Act (FISA) claims. Both the government and the individuals moved to dismiss plaintiffs’ discrimination and unlawful search claims based on arguments other than privilege. A federal trial court dismissed all but the FISA claim. Plaintiffs appealed the dismissal of their claims, and the individual agents appealed the denial of qualified immunity on the FISA claim. In a 103-page opinion, the Ninth Circuit concluded that some of plaintiffs’ claims stated a cause of action and that the individual agents were entitled to immunity on some but not all causes of action. The matter was remanded for further action in the trial court. (Fazaga v. Federal Bureau of Investigation (9th Cir., Feb. 28, 2019) 965 F.3d 1015, 1052.)

Next:

The U.S. Supreme Court noted that, in reversing the trial court, the Ninth Circuit held that the Foreign Intelligence Surveillance Act of 1978 (FISA) displaced the state secrets privilege. The high court reversed the judgment of the Ninth Circuit, holding that FISA does not displace the state secrets privilege. (Federal Bureau of Investigation v. Fazaga (U.S., Mar. 4, 2022) 595 U.S. 344.)

The latest:

Once back in the Ninth Circuit, the circuit court dismissed plaintiffs’ claims under Bivens v. Six Unknown Named Agents (1971) 403 U.S. 388. As to the religion claims, the circuit court affirmed the lower court’s determination the government properly invoked the state secrets evidentiary privilege under United States v. Reynolds (1953) 345 U.S. 1, and that at least some of the information the government described is privileged, but concluded the application of that privilege did not warrant dismissal of the claims at this juncture, holding: “We therefore reverse the dismissal of the religion claims and remand those claims to the district court to consider how the case should proceed.” (Fazaga v. Federal Bureau of Investigation (9th Cir., Dec. 20, 2024) 2024 WL 5179919.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/20/12-56867.pdf

Children Were Not Wrongfully Removed Under the Hague Abduction Convention. 

The father, in prison in Scotland, contended that the mother wrongfully removed the children under the Hague Abduction Convention when she took them to the United States. The district court held the children were not wrongfully removed. Affirming, the Ninth Circuit stated: “In this case, as in many cases under the Hague [Abduction] Convention, reasonable minds can differ as to how evidence should be appraised. We must refrain from disturbing the district court’s habitual-residence determination unless it clearly erred. Because we find it did not, we affirm.” (Nisbet v. Bridger (9th Cir., Dec. 20, 2024) 2024 WL 5178814.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/20/23-3877.pdf

No Duty on the Part of a Management Company or an HOA to Intervene to Resolve Disputes Between Quarreling Neighbors. 

Two neighbors in homes within a homeowners association argued so much it escalated into a physical altercation. Some of the neighbors sued both the homeowners association and the management company for negligence. The trial court granted summary judgment for defendants. Affirming, the Court of Appeal stated: “Imposing a duty on homeowners associations or their managing agents to intervene and attempt to resolve disputes between homeowners (or their tenants) would place an untenable burden on these entities. Run by volunteers, they already have enough (and some would argue too much) authority and responsibility. Associations do not have police powers or subpoena power. They cannot compel owners, much less tenants of owners, to sit down and work out their differences, and they cannot adjudicate differences except in the limited context of violations of the association’s governing documents.” (Woolard v. Regent Real Estate Services, Inc. (Cal. App. 4th Dist., Div. 3, Dec. 23, 2024) 2024 WL 5208777.)

https://www4.courts.ca.gov/opinions/documents/G062897.PDF

Previously we reported: Plaintiff Alleges Hospital Added a Cover Charge to Her Emergency Room Bill.

Plaintiff sued defendant for a violation of the Consumer Legal Remedies Act (CLRA;  Civ. Code, § 1750 et seq.) and declaratory relief, alleging the hospital engaged in a deceptive practice when it did not disclose its intent to charge her a substantial emergency room evaluation and management services fee (EMS Fee). In 2018, the five levels of the hospital’s EMS Fees ranged from $773 to $3,206; the fee was added on top of the charges for each individual item of treatment and service provided during the emergency room visit. Plaintiff describes the EMS Fee as a “cover charge,” surcharge for overhead, or visitation fee. The trial court granted the hospital’s motion for judgment on the pleadings. Affirming, the Court of Appeal stated: “Although [plaintiff’s] pleading adequately alleges Hospital failed to disclose facts that were known exclusively by Hospital and were not reasonably accessible to [plaintiff], we conclude [plaintiff’s] conclusory allegation that she relied on the failure to disclose the EMS Fee and thereafter received treatment at the Hospital does not plead the element of reliance with sufficient particularity.” (Torres v. Adventist Health System/West (Cal. App. 5th Dist., Apr. 14, 2022) 77 Cal.App.5th 500.)

Next:

Posting Emergency Room Fees. Plaintiff alleged a violation of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.; CLRA), based on defendant’s failure to disclose, prior to providing emergency medical treatment, that its bill for emergency services would include an evaluation and management services fee (EMS Fee), by visibly posting signage in or around defendant’s emergency rooms or at its registration windows/desks. Defendant publishes its EMS fee on its website. However, Gray v. Dignity Health (2021) 70 Cal.App.5th 225, recently held that identical allegations did not state a cause of action under the CLRA; thus, the trial court sustained defendant’s demurrer without leave to amend. Affirming, the Court of Appeal stated: “We agree defendant does not have a duty under the CLRA to disclose the EMS Fee by posting additional signage in its emergency rooms.” (Saini v. Sutter Health (Cal. App. 1st Dist., Div. 4, July 8, 2022) 80 Cal.App.5th 1054.)

Next:

Class Action Against Hospital for E.R. Billing May Proceed. Plaintiff filed a class action lawsuit against defendant medical center seeking declaratory and injunctive relief, and alleging violations of the unfair competition law (Bus. & Prof. Code, § 17200 et seq.; UCL) and the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.; CLRA) in connection with defendant’s emergency room billing practices. Plaintiff alleges defendant charges an undisclosed “Evaluation and Management Services Fee” (EMS Fee) that is an “unfair, deceptive, and unlawful practice.” The trial court granted defendant’s demurrer without leave to amend. Reversing, the Court of Appeal stated: “Naranjo has adequately alleged a claim under the CLRA. Naranjo has alleged Medical Center’s EMS Fee billing practices were known exclusively to Medical Center and that information in that regard was not reasonably accessible to Naranjo . . . Naranjo’s FAC alleged sufficient facts to state a claim under the UCL . . . [and] Naranjo’s FAC alleges sufficient facts to state a claim for declaratory and injunctive relief.” (Naranjo v. Doctors Medical Center of Modesto, Inc. (Cal. App. 5th Dist., Apr. 28, 2023) 90 Cal. App. 5th 1193.)

Next:

Plaintiff’s Allegations Interfere with Statutory Scheme Regulating Emergency Room Costs. Plaintiff alleged defendants violated the Unfair Competition Law (Bus. & Prof. Code, § 17200; UCL) and the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.; CLRA) by failing to disclose, through signage or other methods, Evaluation and Management (EMS) fees charged in the emergency room. Defendants moved to strike the allegations regarding EMS fees, arguing their disclosure obligations were defined by statute. The trial court agreed and struck the allegations from the operative complaint. Affirming, the Court of Appeal concluded that “the trial court’s order striking the EMS fee allegations was proper. The duties Moran s[sought] to impose on defendants interfere[d] with the extensive and carefully drawn state and federal legislative and regulatory scheme governing the disclosure and transparency of hospital prices.” (Moran v. Prime Healthcare Management, Inc. (Cal. App. 4th Dist., Div. 3, Aug. 7, 2023) 94 Cal. App. 5th 166.)

The latest:

The California Supreme Court agreed with several appellate courts that hospitals do not have a duty under the UCL or CLRA, beyond their obligations under the relevant statutory and regulatory scheme, to disclose EMS Fees prior to treating emergency room patients. (Capito v. San Jose Healthcare Sys., LP (Cal., Dec. 23, 2024) 2024 WL 5196670.)

https://www4.courts.ca.gov/opinions/documents/S280018.PDF

Prior Inconsistent Statement Properly Admitted in Federal Court When Witness Feigned Lack of Recollection.

Under the prior inconsistent statement rule of the Federal Rules of Evidence 801(d)(1)(A), a federal court can admit an earlier sworn statement if a witness on the stand contradicts that statement. The issue here was whether the court can admit a prior statement if a witness claims at trial that he does not remember saying it. The Ninth Circuit held: “We hold that a feigned lack of recollection may fall within Rule 801’s prior inconsistent statement provision.” (United States of America v. Shuemake (9th Cir., Dec. 26, 2024) 2024 WL 5218473.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/26/22-30210.pdf

Charter Schools Met a Union.
  • Alliance is a nonprofit public benefit corporation that contracted with charter schools to provide certain services, including human resources and employee relations.
  • The Public Employees Relations Board (PERB) is the agency empowered by the Legislature to adjudicate unfair labor practice claims under several public employment-relations statutes.
  • United Teachers Los Angeles (UTLA) is an employee organization within the meaning of Government Code § 3552, subdivision (a), the Prohibition on Public Employers Deterring or Discouraging Union Membership.

UTLA filed representation petitions seeking to represent employees at charter schools. PERB found the schools violated Government Code § 3550 and ordered their governing boards to cease and desist from doing so. Alliance contended it was exercising its rights under the First Amendment. Concluding that statute regulates only government speech, the Court of Appeal affirmed PERB’s Order. (Alliance Marc & Eva Western Math and Science High School v. Public Employment Relations Board (Cal. App. 2nd Dist., Div. 2, Dec. 26, 2024) 2024 WL 5231678.)

https://www4.courts.ca.gov/opinions/documents/B316745.PDF

Express Warranty Duties Under the Song-Beverly Act Satisfied by Prelitigation Offer of Restitution.

Plaintiff contended defendant’s prelitigation offer to repurchase the vehicle did not bar plaintiff’s claims under the Song-Beverly Act (Civ. Code, § 1790 et seq.) for breach of an express warranty and breach of the implied warranty of merchantabilityRuling for defendants, the Court of Appeal stated: “We conclude defendants satisfied their express warranty duties under the Act by making a prompt, Act-compliant offer of restitution. Therefore, plaintiff cannot succeed on the breach of express warranty claim. We also conclude that plaintiff cannot prove that he suffered any damages from the alleged breach of the implied warranty of merchantability.” (Carver v. Volkswagen Group of America, Inc. (Cal. App. 2nd Dist., Div. 3, Dec. 26, 2024) 2024 WL 5231562.)

https://www4.courts.ca.gov/opinions/documents/B331076.PDF

Sale of Equity Is NOT a Sale of Goods or Services Under the Lanham Act.

Plaintiff operates legal-services websites. Defendant provides legal software services. Defendant bought two website domains in the United States and filed a trademark application. Defendant used the LegalForce mark while selling and advertising equity shares to investors in California. Although defendant advertised software products called LegalForce, it never offered those products in the United States. Plaintiff sued defendant for trademark infringement. The district court concluded defendant had not sold or advertised any products or services in the United States. Affirming, the Ninth Circuit stated: “This appeal presents the question, inter alia, of whether using a trademark in connection with the sale of equity constitutes using the mark in connection with ’goods or services’ within the meaning of the Lanham Act, 15 U.S.C. § 1051 et seq. We conclude that it does not, and we affirm the district court’s dismissal of the action for failure to state a claim.” (LegalForce RAPC Worldwide, PC v. LegalForce, Inc. (9th Cir., Dec. 27, 2024) 2024 WL 5231261.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/27/23-2855.pdf

Plaintiff Has Standing Under Adolph. 

Plaintiff filed a class action and an action under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) against her former employer, alleging wage-and-hour violations. In opposing defendant’s motion to compel arbitration, plaintiff argued the agreement to arbitrate was invalid because, when she attempted to sign the agreement in DocuSign, an electronic signature for someone else was already entered into the agreement. The trial court found sufficient evidence showing that plaintiff consented to the agreement and granted the motion to compel arbitration. Then, relying on the U.S. Supreme Court’s then-recent decision in Viking River Cruises, Inc. v. Moriana (2023) 596 U.S. 639, it ordered plaintiff’s claims brought on her own behalf to arbitration and dismissed the claims brought on behalf of other current or former employees without prejudice for lack of standing. Reversing, the Court of Appeal stated: “[W]e reverse based on the California Supreme Court’s decision in Adolph, supra, 14 Cal.5th 1104, which rejected Viking River’s interpretation of California law on the issue of standing. Because we are reversing based on Adolph, we need not address [plaintiff’s] additional arguments concerning the electronic signature.” (Huff v. Interior Specialists, Inc. (Cal. App. 4th Dist., Div. 1, Dec. 27, 2024) 2024 WL 5231468.)

https://www4.courts.ca.gov/opinions/documents/D082036.PDF

A Mashgiach Is a Minister for Purposes of the Ministerial Exception.

Plaintiff, an Orthodox Jewish man, worked for the Union of Orthodox Jewish Congregations of America (OU) as a mashgiach. A mashgiach is an inspector appointed by a board of Orthodox rabbis to guard against any violation of the Jewish dietary laws—colloquially known as “keeping kosher.” OU is organized as a 26 U.S.C. § 501(c)(3) not-for-profit corporation, and its mission is to serve the Orthodox Jewish community. It supports a network of synagogues, providing religious programming, advocacy, and youth programs. One of OU’s primary activities in service to its member synagogues is ensuring that kosher food is widely available. To that end, it runs the largest kosher- certification program in the United States. That program provides most of OU’s revenues. It uses those revenues to support its youth, teen, and educational programming and to further its core religious mission of serving the Orthodox Jewish community. A team administers OU’s kosher program. The team includes poskim (preeminent scholars on Jewish law); senior administration; rabbinic coordinators; mashgichim (the plural of mashgiach), such as plaintiff; and rabbinic field representatives. To qualify to serve as a mashgiach, plaintiff needed to submit a letter from an Orthodox rabbi certifying that he was Sabbath observant, knowledgeable about kosher law, and compliant with the same. When plaintiff did not receive a raise and overtime compensation, he sued the Rabbi and OU. Defendants moved for summary judgment, invoking the ministerial exception. The district court entered summary judgment for defendants. Affirming, the Ninth Circuit stated: “OU is a religious organization and [plaintiff] is its minister. [Plaintiff’s] claims implicate a tangible employment decision. And the ministerial exception protects both religious organizations and religious leaders.” (Markel v. Union of Orthodox Jewish Congregations of America (9th Cir., Dec. 30, 2024) 2024 WL 5242942.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/30/23-55088.pdf

Every PAGA Action Necessarily Includes an Individual PAGA Claim.

Plaintiff sued defendant under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; “PAGA). The trial court denied defendant’s motion to compel arbitration on the basis that plaintiff’s PAGA action did not allege any individual claims subject to arbitration under the parties’ arbitration agreement. Reversing, the Court of Appeal stated: “[E]very PAGA action necessarily includes an individual PAGA claim.” (Leeper v. Shipt, Inc. (Cal. App. 2nd Dist., Div. 1, Dec. 30, 2024) 2024 WL 5251619.)

https://www4.courts.ca.gov/opinions/documents/B339670.PDF

Person Who Signed Arbitration Agreement Lacked Explicit Authority.

A decedent’s durable power-of-attorney form explained how “the powers granted by this document are broad and sweeping,” but it “does not authorize anyone to make medical and other health-care decisions.” Decedent then appointed Lombardo as her agent to act for her in several subjects, including personal property, banking, financial transactions, family maintenance, and benefits from Medicare, Medicaid, or other government programs. On the form that decedent signed appointing Lombardo as her agent, there was a box titled “claims and litigation,” but decedent did not check that box. After decedent died while in a nursing facility, her heirs sued the facility. The facility moved to compel arbitration based on an arbitration agreement signed by Lombardo. The trial court denied the motion to compel arbitration. Affirming, the Court of Appeal stated: “Nowhere in the selected subject matter was the explicit authority to enter into arbitration agreements.” (Lombardo v. Gramercy Court (Cal. App. 3rd Dist., Dec. 31, 2024) 2024 WL 5265017.)

https://www4.courts.ca.gov/opinions/documents/C098857.PDF

No Assumption of the Risk.

Plaintiff, a jiu jitsu student, suffered a fractured neck and a spinal-cord injury due to a series of moves his instructor performed on him while sparring at defendants’ jiu jitsu club. Plaintiff sued, alleging the instructor was negligent and the club was vicariously liable. The relevant jury instruction on primary assumption of risk, CACI No. 471, provides two alternative standards under which a sports instructor may be liable to an injured student. The applicable standard depends on the particular facts of each case. Option 1the primary assumption of risk doctrine holds an instructor liable only if the instructor intentionally injured the student or acted so recklessly that the conduct was “entirely outside the range of ordinary activity involved in teaching” the sport. Option 2a sports-specific negligence standard imposes liability if the instructor “unreasonably increased the risks to” the student “over and above those inherent in” the sport. (CACI No. 471.) The court instructed the jury on option 2, finding it “most applicable for these facts.” The jury, by a vote of 9 to 3, found in favor of plaintiff and awarded him $46 million in damages. Affirming, the Court of Appeal stated: “[W]e conclude the trial court correctly instructed the jury on option 2 of CACI No. 471 and properly used the corresponding verdict form. . . . The risk an instructor will perform a maneuver on a student after immobilizing the student and knowing it will injure the student is not an inherent risk of [jiu jitsu] sparring.” (Greener v. M. Phelps, Inc. (Cal. App. 4th Dist., Div. 1, Dec. 31, 2024) 2024 WL 5265196.)

https://www4.courts.ca.gov/opinions/documents/D082588.PDF


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