Litigation Update: July 2020

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

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Reuben Ginsburg
  • Editors, Dean Bochner, Julia Shear Kushner, Jessica Riggin, and David Williams
Nonsignatories Can Be Bound by Arbitration Agreement.

Two companies entered into three contracts that contained identical arbitration clauses. Thereafter, a subcontractor of one of the signatories and the subsequent owner of the other signatory had a dispute. Respondent sued in Alabama state court, then petitioner removed the matter to federal court and moved to compel arbitration. The district court dismissed the action, ordering it to arbitration. Reversing, the Eleventh Circuit Court of Appeals found that an applicable provision of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards—unlike the Federal Arbitration Act (FAA)—included a “requirement that the parties actually sign an agreement to arbitrate their disputes in order to compel arbitration.” Reversing again, the U.S. Supreme Court held that the convention does not conflict with the FAA, and therefore allows enforcement of the arbitration agreements by nonsignatories under domestic-law equitable estoppel doctrines. (GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC (U.S., June 1, 2020) 140 S.Ct. 1637.)

Confirmation by the Senate Not Required.

The appointments clause of the U.S. Constitution says that the President, “by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States.” However, in 2016, Congress provided that the President could appoint members of a newly-created Financial Oversight and Management Board for Puerto Rico without Senate confirmation. The Supreme Court held that this rule did not violate the appointments clause: “the Appointments Clause governs the appointments of all officers of the United States, including those located in Puerto Rico. Yet . . . the Clause’s term ‘Officers of the United States’ has never been understood to cover those whose powers and duties are primarily local in nature . . . . The Board’s statutory responsibilities consist of primarily local duties, namely, representing Puerto Rico in bankruptcy proceedings and supervising aspects of Puerto Rico’s fiscal and budgetary policies. We therefore find that the Board members are not ‘Officers of the Court the United States.’” (Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC (U.S., June 1, 2020) 140 S.Ct. 1649.)

Lack of Standing.

Plaintiffs filed a class action against the managers of their retirement plan for mismanagement. Both of the named plaintiffs were defined benefit beneficiaries. However, their retirement payments have been paid in full thus far, and they are due the same amount each month for the rest of their lives. To establish standing under Article III of the Constitution, a plaintiff must demonstrate that (1) he or she suffered an injury in fact that is concrete, particularized, and actual or imminent, (2) the injury was caused by the defendant, and (3) the injury would likely be redressed by the requested judicial relief. Both the district court and the Court of Appeals found plaintiffs lacked standing. Affirming, the U.S. Supreme Court stated plaintiffs “have no concrete stake in this lawsuit.” (Thole v. U.S. Bank N.A. (U.S., June 1, 2020) 140 S.Ct. 1615.)

Arbitration Agreement in Continuing Care Facility’s Contract Void.

Five residents of a continuing care facility were ordered into arbitration for their residency fee dispute against the facility. The continuing care contracts stated that the residents’ fees “shall be deemed payment for your residence, care and services.” The contracts also included “a right to live in” a specified living unit and meals provided every day. The contracts required binding arbitration for “any and all claims and disputes arising from or related to the Agreement or to your residency, care or services at University Village.” Reversing, the Court of Appeal stated: “Public policy prohibits arbitration agreements in residential lease or rental agreements.” (Civ. Code, § 1953, subd. (a)(4).) These agreements, compelling arbitration arising from or related to the tenancy provisions of the continuing care contracts, were therefore void. (Harris v. University Village Thousand Oaks, CCRC, LLC (Cal. App. 2nd Dist., Div. 6, June 1, 2020) 49 Cal.App.5th 847.)

Plaintiff May Pursue Civil Action for Damages Against the Police, Despite Being Convicted of Disturbing the Peace.

A man was convicted of disturbing the peace after he was arrested at LAX while waiting to transport a customer in his limousine. Paramedics took him to the hospital after the officer allegedly placed his knee on the man’s back and hit him while handcuffing him. The issue was whether a plaintiff can sue in civil court for unreasonable use of force by the police after being convicted in criminal court. The Court of Appeal found the man can pursue his civil action even though he was convicted, explaining: “How you act and how police respond are two different issues. The criminal case was about the former. This civil case is about the latter. That is, fighting or challenging someone to fight does not entitle the other to respond with excessive force.” (Kon v. City of Los Angeles (Cal. App. 2nd Dist., Div. 8, June 1, 2020) 49 Cal.App.5th 858.)

Unexpected College Fund.

N.L. is 11 years old. Over a period of four months, the child received 189 automated phone calls from a debt collector. The person the debt collector intended to call had formerly possessed N.L.’s cell number, and that person gave permission for the automated calls. However, under the Telephone Consumer Protection Act (47 U.S.C. § 227(b); TCPA), it is unlawful to call a cell phone using any automatic dialing system without prior express consent of “the called party.” So, when the child’s case went to trial, the judge instructed the jury that “the law requires the consent of the current subscriber of the called phone,” i.e., it required N.L.’s consent. The jury awarded $500 in statutory damages to N.L. for each of the 189 unwanted calls. Affirming, the Ninth Circuit found that a debt collector could not escape liability merely because “the party it intended to call (its customer) had given consent to be called, even though the party it actually called had not.” The debt collector was therefore liable under the TCPA for all of its calls to N.L. (N.L. by Lemos v. Credit One Bank, N.A. (9th Cir., June 3, 2020) 960 F.3d 1164.)

When Named Plaintiff Settled Individual Claim, Class Action Became Moot.

Plaintiff filed an action for damages on behalf of himself and a putative class for alleged violations of Washington state’s meal break laws. After several years of litigation, the district court denied class certification. Plaintiff then settled his individual claims, but not the class claims. Plaintiff thereafter appealed the district court’s denial of class certification. The Ninth Circuit held: “This case requires us to decide what happens when a class representative voluntarily settles only his individual claims without indicating any financial stake in the unresolved class claims. We conclude that such a scenario renders the class claims moot, and therefore dismiss this appeal.” (Brady v. AutoZone Stores, Inc. (9th Cir., June 3, 2020) 960 F.3d 1172.)

Trial Court Has Authority to Order Restrained Person out of Home.

A man and a woman lived together at a property they co-owned. After contentious arguments and stalking incidents, each filed a request for a domestic violence restraining order (DVRO) against the other. The trial court denied the man’s request, granted the woman’s request, and ordered the man to move out of the property. Meanwhile, the parties were involved in a civil suit for partition and to quiet title. The man appealed from the DVRO against him, arguing that the trial court erred by ordering him to move out of the property and by awarding use and possession of the property to the woman. He argued the issues of ownership and possession should be handled in the civil suit, and a DVRO is “not a tool to dispute ownership and control of property.” Affirming, the Court of Appeal stated: “The Domestic Violence Prevention Act and Family Code sections 6340, 6321, and 6324 authorize a court to order the restrained party to move out of property and allow the protected party to use and possess the property. While ownership of the property will be determined in the pending civil suit, the trial court had authority to make orders about the use and possession of the property. It properly did so.” (Nicole G. v. Braithwaite (Cal. App. 2nd Dist., Div. 8, June 3, 2020) 49 Cal.App.5th 990.)

Prisoner Must Pay Filing Fee.

Petitioner, an inmate in a Colorado prison, filed a lawsuit to challenge his expulsion from the facility’s sex-offender treatment program. He also asked to proceed in forma pauperis (IFP). However, petitioner had previously had three different civil suits dismissed for failure to state a claim, twice without prejudice, and once with prejudice. Since IFP status is unavailable to plaintiffs who have had three or more prior suits dismissed on grounds they were frivolous, malicious, or failed to state a claim (28 U.S.C. § 1915), the district court denied his IFP request and ordered him to pay the $400 civil suit filing fee. Affirming, the U.S. Supreme Court held that all dismissals for failure to state a claim—even without prejudice—count as a prior dismissal under section 1915, so petitioner was properly denied IFP status. (Lomax v. Ortiz-Marquez (U.S., June 8, 2020) 140 S.Ct. 1721.)

Contact With Jurors After Criminal Trial.

In 1993, a jury convicted defendant of kidnapping, rape, and murder, and sentenced him to death. In 2018, defendant moved for an order permitting his federal habeas counsel to contact jurors who served on his jury. The trial court denied the motion, and the Court of Appeal declined to issue a writ of mandate. The California Supreme Court transferred the case back to the Court of Appeal with directions to issue an alternative writ instructing the trial court to either vacate its order or show cause. After the trial court refused to vacate its order, the Court of Appeal issued a writ of mandate and ordered the trial court to schedule a hearing to establish a reasonable procedure to facilitate contact with three jurors to ascertain their current willingness to speak with defendant’s counsel. (DeHoyos v. Superior Court (Cal. App. 4th Dist., Div. 3, June 8, 2020) 50 Cal.App.5th 71.)

Bad Faith Case Against Insurer to Go to Trial.

Defendant insured plaintiffs’ home, which was damaged in a fire. After defendant declined to pay for all of their damages, plaintiffs sued for breach of the implied covenant of good faith and fair dealing. Opposing defendant’s motion for summary judgment, plaintiffs’ experts explained that the premises had suffered soot and smoke damage and that defendant’s fire inspectors conceded they did not sample several areas of the home. The trial court granted summary judgment for defendant without addressing plaintiffs’ request for a continuance under Code of Civil Procedure § 437c, subdivision (h). Reversing, the Court of Appeal stated: “[W]e cannot conclude that it is undisputed or indisputable that the denial of supplemental claims was reasonable based on a genuine dispute created by the retention of experts.” As to the request for a continuance, the Court of Appeal observed that “a trial court’s failure to exercise discretion is itself an abuse of discretion.” (Fadeeff v. State Farm General Insurance Co. (Cal. App. 1st Dist., Div. 2, June 8, 2020) 50 Cal.App.5th 94.)

Use of Video Evidence at Trial.

In a criminal trial, the prosecution used a compilation of video footage of the scene of the crime that included videos taken by bystanders on their cell phones and other videos taken from surveillance cameras of nearby businesses. On appeal, the convicted defendant argued that the videos were “doctored”—i.e., they were improperly enhanced by adjustment of the height and width ratio, synchronization of multiple videos, correction of blurring, and use of color-coded arrows to identify certain individuals. A certified forensic video analyst expert testified at trial about how the compilation and adjustments were made. Affirming the conviction, the Court of Appeal held that the trial court did not abuse its discretion by admitting the videos. (People v. Tran (Cal. App. 4th Dist., Div. 1, June 9, 2020) 50 Cal.App.5th 171.)

Securities Class Action Tossed.

In this putative securities class action brought under the Securities Exchange Act of 1934 (15 U.S.C. §§ 78a et seq.), plaintiff alleged that a medical device company misled the investing public about whether the U.S. Food and Drug Administration (FDA) would approve the company’s new aneurysm sealing product. Plaintiff’s central theory was that company executives knew the device had encountered problems in Europe that would manifest again in U.S. clinical trials, which would in turn lead the FDA to deny premarket approval. The district court dismissed the action because plaintiff had not satisfied the heightened pleading standard for scienter under the Private Securities Litigation Reform Act (15 U.S.C. § 78u-4(b)(2)(A)). Affirming, the Ninth Circuit stated that plaintiff’s theory “depends on the supposition that defendants would rather keep the stock price high for a time and then face the inevitable fallout once [the product’s] ‘unsolvable’ migration problem was revealed. If defendants had sought to profit from this scheme in the interim, such as by selling off their stock or selling the company at a premium, the theory might have more legs. [Citation.] There are no factual allegations like that here.” (Nguyen v. Endologix, Inc. (9th Cir., June 10, 2020) 2020 WL 3069766.)

Too Much Government Protection?

Plaintiff decided to enroll in a horseshoeing school. Because plaintiff did not graduate from high school, he is considered to be an ability-to-benefit person under California’s Private Postsecondary Education Act of 2009 (Ed. Code, § 94800 et seq.; PPEA). The statute was enacted because the Legislature was concerned about the value of degrees issued by private postsecondary schools and the protections afforded students in those schools. The statute contains an ability-to-benefit provision that requires prospective students to take a test prescribed by the U.S. Department of Education. Unless the student achieves a score indicating that the student may benefit from the education offered, the statute prohibits the student from enrolling in the school. Plaintiff and the school filed an action challenging the ability-to-benefit requirement on First Amendment grounds. The district court dismissed the action for failure to state a claim. Reversing, the Ninth Circuit held that PPEA regulates the content of speech of both institutions (by telling them what kind of programs they can offer) and students (by restricting their rights to select courses), and that both the school and prospective student have viable First Amendment claims. (Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer (9th Cir., June 10, 2020) 961 F.3d 1062.)

Equitable Subrogation in Construction Defect Action.

In two construction defect actions, a general contractor was defended by its insurer, even though the underlying contracts between the general contractor and six subcontractors required the subcontractors to defend the general contractor. The insurer brought a claim for equitable subrogation against the six subcontractors. After a bench trial, the trial court denied the insurer’s claim, concluding the insurer failed to establish that it was fair to shift allof the defense costs to the subcontractors “because their failure to defend the general contractor had not caused the homeowners to bring the construction defect actions.” Reversing, the Court of Appeal explained that the proper inquiry is whether the subcontractors’ failure to defend the general contractor caused the insurer to incur defense costs, and concluded that the insurer was entitled to reimbursement.  The appellate court directed the trial court to enter judgment for the insurer and determine the amount of defense costs to shift to each subcontractor. (Pulte Home Corporation v. CBR Electric, Inc. (Cal. App. 4th Dist., Div. 2, June 10, 2020) 50 Cal.App.5th 216.)

Contemporaneous Records of Attorney’s Billed Hours are the Best Evidence.

A decedent’s family sued the county and its sheriff’s department for wrongful death and civil rights violations. Claimant is a lawyer who represented plaintiffs for one month before they fired him. Other attorneys later settled the case for $7 million. Claimant filed an attorney’s lien notice and submitted two invoices, one claiming 130 hours and the other claiming 180 hours. The only explanation claimant gave for the hours billed was “legal research and investigation.” After repeated requests to show his work, claimant submitted a three-page invoice, this time claiming 200 hours of work and demanding $308,000. The trial court awarded him $17,325. Affirming, the Court of Appeal stated: “We publish to underline that contemporaneous time records are the best evidence of lawyers’ hourly work. They are not indispensable, but they eclipse other proofs.” (Taylor v. County of Los Angeles (Cal. App. 2nd Dist., Div. 8, June 10, 2020) 50 Cal.App.5th 205.)

No Mandatory Relief Under Code of Civil Procedure § 473.

Plaintiff settled her civil action and was the prevailing party. After the settlement was placed on the record, the trial court set a hearing three months out for an order to show cause re dismissal and ordered any motion for attorney fees to be heard before then. Plaintiff did not file a motion for attorney fees, and the trial court dismissed the action at the order to show cause hearing. Four months later, plaintiff filed a motion under Code of Civil Procedure § 473, subdivision (b), requesting that the dismissal be set aside and explaining that a fee motion was not filed due to her counsel’s mistake or inadvertence. The trial court denied the motion, concluding that counsel’s mistake or inadvertence in not filing the fee motion did not cause the case to be dismissed. The Court of Appeal agreed and affirmed, explaining that “counsel’s error simply caused plaintiff to lose the opportunity to file her fee motion.” (Hernandez v. FCA US LLC (Cal. App. 2nd Dist., Div. 8, June 11, 2020) 50 Cal.App.5th 329.)

Arbitrator Exceeded Powers.

An arbitrator deciding a commercial landlord/tenant dispute conducted his own investigation by inspecting the property. The trial court vacated the arbitration award, and a second arbitration before a different arbitrator resulted in a different outcome. This time, the trial court affirmed the award. On appeal, the party that lost the second arbitration challenged the trial court’s decision to vacate the first arbitration award but did not challenge the result of the second arbitration. Affirming, the Court of Appeal held that the trial court did not abuse its discretion by vacating the first arbitration award and confirming the second, observing “the parties were clear from the outset that [the first arbitrator] would not be authorized to perform his own due diligence.” (California Union Square, L.P. v. Saks & Company LLC (Cal. App. 1st Dist., Div. 3,  June 11, 2020) 50 Cal.App.5th 340.)

Pipeline To Go Through Appalachian Trail.

The U.S. Supreme Court heard two consolidated cases to decide whether the U.S. Forest Service has authority under the Mineral Leasing Act (30 U.S.C. § 181 et seq.) to grant rights of way through lands within national forests traversed by the Appalachian Trail. In 2015, petitioner Atlantic Coast Pipeline, LLC filed an application with the Federal Energy Regulatory Commission to construct and operate an approximately 604-mile natural gas pipeline extending from West Virginia to North Carolina. The pipeline’s proposed route traverses 16 miles of land within the George Washington National Forest. The Appalachian National Scenic Trail also crosses parts of the George Washington National Forest. To construct the pipeline, Atlantic needed to obtain special use permits from the U.S. Forest Service for the portions of the pipeline that would pass through lands under the Forest Service’s jurisdiction. In 2018, the Forest Service issued these permits and granted a right-of-way that would allow Atlantic to place a 0.1-mile segment of pipe approximately 600 feet below the Appalachian Trail in the George Washington National Forest. Cowpasture River Preservation Association contended that the issuance of a special use permit for right of way under the trail violated several environmental statutes. The Fourth Circuit vacated the Forest Service’s special use permit, holding the Forest Service exceeded its powers under the Mineral Leasing Act. Ruling in favor of the pipeline company, the high court stated: “We hold that the Mineral Leasing Act does grant the Forest Service that authority and therefore reverse the judgment of the Court of Appeals for the Fourth Circuit.” (United States Forest Serv. v. Cowpasture River Pres. Ass’n (U.S., June 15, 2020) 2020 WL 3146692.)

“After The Word ‘Religion’ Insert ‘Sex’. . . ,” Virginia Congressman Howard W. Smith, Who Thought His “Joke” Amendment Introduced On February 8, 1964 Would Defeat The Proposed 1964 Civil Rights Act.

Each of the three cases before the U.S. Supreme Court started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she was homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status. In one of the cases, the Eleventh Circuit held that Title VII of the 1964 Civil Rights Act does not prohibit employers from firing employees for being gay, and it dismissed the action as a matter of law. In the other two cases, both the Second Circuit and the Sixth Circuit allowed the claims to proceed. Holding that employers who fire an individual merely for being gay or transgender violate Title VII, the high court stated: “Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected. But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” (Bostock v. Clayton County (U.S., June 15, 2020) 2020 WL 3146686.)

No Burden Shift Took Place.

The Department of Motor Vehicles suspended plaintiff’s driver’s license for driving with a blood alcohol level of 0.08 or more. Prior to the hearing, plaintiff subpoenaed the certificate of training for the officer who performed the breath tests on her. The custodian of records responded: “We found no training record for Officer Daniel Walker.” After her license was suspended, plaintiff petitioned the trial court for a writ of mandate, contending the evidence she submitted rebutted the presumption under Evidence Code § 664 that the test was administered properly. The trial court granted the petition, concluding the custodian’s affidavit was sufficient evidence that the officer was not properly trained, and that the burden shifted to the DMV to show the test results were reliable. Reversing, the Court of Appeal found there was no evidence the test was not conducted or reported properly, and that the burden did not shift to the DMV. (Delgado v. California Dep’t of Motor Vehicles (Cal. App. 1st Dist., Div. 4, June 15, 2020) 2020 WL 3167638.)

Judgment Debtor Examination.

An indigent judgment debtor timely requested a court reporter and timely requested to appear telephonically for her judgment debtor examination. The trial court did not provide a court reporter, nor did it permit the debtor to appear telephonically. When she did not personally appear on the day scheduled for the examination, the trial court issued a bench warrant. The Court of Appeal issued a peremptory writ of mandate, stating: “Because the superior court’s actions were inconsistent with . . . principles of California law, we grant Davis’s petition and direct the superior court to allow Davis to have a court reporter at the hearings on her motions and to appear at those hearings telephonically.” (Davis v. Superior Court  (Cal. App. 2nd Dist., Div. 7, June 15, 2020) 2020 WL 3166623.)

Defense Verdict In Product Liability Action Affirmed.

Plaintiff was seriously injured when a rough terrain forklift he was operating tipped over.  He proceeded to trial against defendant, the manufacturer.  The jury returned a defense verdict, finding the forklift was not defective and defendant was not negligent. Plaintiff claimed the trial court erred in refusing to instruct the jury on the “consumer expectations” test for design defect. His contention was that, while a rollover was “foreseeable” to an operator, “what was not expected was that, upon rolling over, the operator would be ejected from the operator cage and subjected to the severe injuries.” Affirming, the Court of Appeal held that where “plaintiff’s theory of defect seeks to examine the behavior of ‘obscure components under complex circumstances’ outside the ordinary experience of the consumer, the consumer expectation test is inapplicable; and defect may only be proved by resort to the risk-benefit analysis.” Plaintiff also contended no substantial evidence supported the jury’s no-defect and not-negligent findings.  The Court of Appeal found plaintiff forfeited his substantial evidence claims by failing to set forth all material evidence in his opening brief. (Verrazono v. Gehl Co. (Cal. App. 1st Dist., Div. 1, June 16, 2020) 2020 WL 3249089.)

Remember Erie v. Tomkins From First Year Procedure Class?

Plaintiff filed a class action against defendant for false advertising of its nutritional products. The complaint originally demanded injunctive relief and restitution under California consumer statutes and demanded a jury trial. After more than four years of litigation and just prior to trial, plaintiff dismissed her claim for damages and chose to proceed with only state equitable claims for restitution and injunctive relief in order to try the case as a bench trial rather than to a jury. The district court dismissed the action because there was an adequate remedy at law. Affirming, the Ninth Circuit stated: “Regardless of whether California authorizes its courts to award equitable restitution under [state law] when a plain, adequate, and complete remedy exists at law, we hold that federal courts rely on federal equitable principles before allowing equitable restitution in such circumstances. And because [plaintiff] fails to demonstrate that she lacks an adequate legal remedy in this case, we affirm the district court’s order dismissing her claims for restitution.” (Sonner v. Premier Nutrition Corp. (9th Cir., June 17, 2020) 2020 WL 3263043)

Defendant Employer’s Position Undermines California Law.

Plaintiff brought a class action for violation of California labor laws regarding the payment of wages. Plaintiff was a journeyman scaffold worker and a union member who was paid for his work beginning at 5:30 a.m. each day. However, defendant required him to take a company bus to the work site. This required plaintiff to arrive at the bus site at 4:45 a.m. and go through various steps before actually arriving at the site. He was not paid for that extra 45 minutes. Before class certification, the trial court granted summary judgment in favor of the defendant employer. Reversing, the Court of Appeal stated: “Were we to accept Brand’s argument that Wage Order 16 section 5(D) permits CBA-covered parties to ‘opt out’ of compensating employees for employer-mandated travel time notwithstanding Wage Order section 4, we would also undermine Labor Code section 1194, subdivision (a), the statute bestowing on California employees the right to minimum wage subject to exceptions not relevant here.” (Gutierrez v. Brand Energy Servs. of California, Inc. (Cal. App. 1st Dist., Div. 3, June 17, 2020) 2020 WL 3249043)

Rescission of the DACA Program Vacated.

 In the summer of 2012, the U.S. Department of Homeland Security (DHS) announced an immigration program known as Deferred Action for Childhood Arrivals, or DACA. The public often refers to DACA’s—that is, persons living in the United States who were bought here as undocumented children by their parents—as “Dreamers.” The DACA program allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity. Five years later, the Attorney General advised DHS to rescind DACA, based on his conclusion that it was unlawful. DHS Acting Secretary Elaine Duke issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the acting secretary had violated the Administrative Procedure Act (5 U. S. C. §701(a)(2); APA) by failing to adequately address important factors bearing on her decision. Duke’s explanation for terminating the program merely said it took a federal circuit court’s decision that DACA was unlawful and the Attorney General’s agreement with the circuit court’s conclusion into consideration, and without any elaboration, terminated the program. The APA sets forth procedures by which federal agencies are accountable to the public for their actions, requiring agencies to engage in “reasoned decisionmaking.” Calling the decision to terminate the program an arbitrary and capricious violation of the APA, the U.S. Supreme Court concluded that the rescission of DACA must be vacated. (Department of Homeland Security v. Regents of the University of California (U.S., June 18, 2020) 2020 WL 3271746.)

No Protected Activity Even Though Acts Were Generally Connected to Litigation.

Plaintiff plumbing company sued its own insurance company, alleging it gave instructions to its lawyers to negotiate settlements without plaintiff’s consent. The insurance company moved to strike pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16), contending its actions constituted protected activity. The trial court denied the motion. Affirming, the Court of Appeal stated: “While the alleged acts were generally connected to litigation, they did not include any written or oral statement or writing made in connection with an issue under consideration or review by a judicial body and therefore do not constitute protected activity under section 425.16.” (Trilogy Plumbing, Inc. v. Navigators Specialty Ins. Co. (Cal. App. 4th Dist., Div. 3, June 18, 2020) 2020 WL 3286806.)

“Life would be infinitely happier if we could only be born at the age of eighty and gradually approach eighteen,” Mark Twain.

In response to concerns about age discrimination in the entertainment industry, the California Legislature passed Civil Code § 1798.83.5, which took effect on January 1, 2017. It prohibits certain websites from publishing the ages and birth dates of entertainment industry professionals. Before the statute took effect, plaintiff filed suit against California in federal court. The Screen Actors Guild moved to intervene and defend the statute. The district court granted plaintiff an injunction prohibiting enforcement of the Act, and then granted summary judgment in plaintiff’s favor, citing the First Amendment. The Ninth Circuit affirmed, finding the statute facially unconstitutional.  ( Inc. v. Becerra (9th Cir., June 19, 2020) 2020 WL 3396306.)

Default Judgment.

Plaintiff sued defendant over a contract dispute. In its complaint, it claimed it suffered damages in excess of the $25,000 jurisdictional minimum. Defendant answered, but then stipulated to a default. The trial court entered a default judgment against defendant for $3,016,802. In a previous appeal, the Court of Appeal vacated the judgment, finding the trial court was without jurisdiction to award damages in excess of the amount demanded in the complaint. Plaintiff returned to the trial court and obtained a judgment in the amount of $25,000, plus $33,849 in prejudgment interest, and $614 in costs. This time around, the Court of Appeal rejected all of defendant’s procedural arguments and affirmed the judgment. (Airs Aromatics, LLC v. CBL Data Recovery Technologies Inc. (Cal. App. 4th Dist., Div. 1, June 19, 2020) 2020 WL 3393761.)

“Pull over to the side of the road, turn off the radio, and find peace,” Richard Simmons.

Richard Simmons and his caretaker/driver sued a private detective agency and a private detective for unlawfully attaching a tracking device to the car the driver used as the only form of transportation for both plaintiffs. Defendants filed a special motion to strike under the anti-SLAPP statute, Code of Civil Procedure § 425.16. The trial court denied the motion. The Court of Appeal rejected defendant’s contention the use of a tracking device was “ ‘conduct in furtherance of its exercise of the right of free speech in connection with issues of public interest.’ ” Affirming, the appellate court stated that section 425.26 cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law. (Simmons v. Bauer Media Group USA, LLC (Cal. App. 2nd Dist., Div. 4, June 19, 2020) 2020 WL 3402434.)

Burden of Proof in a “Settle and Sue” Legal Malpractice Case.

In a legal malpractice case alleging an inadequate settlement, the defendant attorney contended the elements of causation and damages in a “settle and sue” case must be proven to “a legal certainty” and that the legal certainty standard imposes a burden of proof higher than a mere preponderance of evidence. The Court of Appeal disagreed, holding: “For ‘settle and sue’ legal malpractice actions, we conclude the applicable burden of proof is a preponderance of the evidence.” (Masellis v. Law Office of Leslie F. Jensen (Cal. App. 5th Dist., June 19, 2020) 2020 WL 3406336.)

Meaning of Disgorgement by the SEC.

The EB–5 Program, administered by the U. S. Citizenship and Immigration Services, permits noncitizens to apply for permanent residence in the United States by investing in approved commercial enterprises that are based on “ ‘proposals for promoting economic growth.’ ” Petitioners fraudulently solicited nearly $27 million from foreign nationals under the EB-5 Program. The Securities and Exchange Commission (SEC) brought a civil action against petitioners, alleging that they violated the terms of the offering documents by misappropriating millions of dollars. The district court found for the SEC, granted an injunction barring petitioners from participating in the EB–5 Program, and imposed a civil penalty at the highest tier authorized. It also ordered disgorgement equal to the full amount petitioners had raised from investors, less the $234,899 that remained in the corporate accounts for the project. Petitioners objected that the disgorgement award failed to account for their business expenses. The U.S. Supreme Court held that a disgorgement award that does not exceed a wrongdoer’s net profits and is awarded for victims is the equitable relief permissible under 15 U.S.C. § 78u(d)(5).  (Liu v. Securities and Exchange Commission (U.S., June 22, 2020) 140 S.Ct. 1936.)

Loss of Use of $$$.

Defendant improperly charged sales tax to customers residing in jurisdictions that do not impose such taxes. After they were sued in another action, defendants refunded wrongfully withheld money, albeit without interest. Plaintiff represents a class of members seeking the full amount of their damages, including interest. The complaint alleged conversion, misappropriation, and violation of two Alaska statutes. The district court granted Defendant’s motion to dismiss for lack of article III standing, which contended that plaintiffs’ claim for interest was insufficient for standing. Reversing, the Ninth Circuit stated that “every day that a sum of money is wrongfully withheld, its rightful owner loses the time value of the money.” (Van v. LLR, Inc. (9th Cir., June 24, 2020) 2020 WL 3443930.)

Pet Is Not a Product Subject to the Consumer Expectations Theory.

A ten-year-old boy and his grandmother purchased a pet rat from defendant’s retail pet store. The boy contracted a rare bacterial infection from the rat and died, and his father sued. The trial court instructed the jury on negligence under ordinary negligence and negligent failure-to-warn theories, as well as three theories of strict products liability: (1) failure to warn, (2) manufacturing defect, and (3) design defect under a risk-benefit test. The jury returned verdicts for defendant. On appeal, plaintiff contended the trial court erred by refusing to instruct the jury on an alternative strict liability design defect theory, the consumer expectations test. He argued there was sufficient evidence from which the jury could have concluded the pet rat purchased from defendant failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Affirming, the Court of Appeal held: “We conclude a live pet animal sold in its unaltered state is not a product subject to the design defect consumer expectations theory of strict products liability.” (Pankey v. Petco Animal Supplies, Inc. (Cal. App. 4th Dist., Div. 1, June 24, 2020) 2020 WL 3445816.)

Wage & Hour Class Action to Go Back to Trial Court.

Plaintiffs are service technicians who were required to drive their personal vehicles, which contained defendant’s tools and parts, to customer sites to make repairs to copiers and other machines. Service technicians did not report to an office for work. Instead, they usually drove from home to the first customer location of the day and, at the end of the day, from the last customer location to home. The trial court granted summary judgment for defendant employer. Reversing, the Court of Appeal determined there were triable issues of material fact regarding: (1) whether service technicians were subject to defendant’s control during their commute such that their commute time constituted “hours worked” for which wages must be paid; and (2) whether service technicians were entitled to reimbursement for commute mileage. (Oliver v. Konica Minolta Business Solutions U.S.A., Inc. (Cal. App. 6th Dist., June 24, 2020) 2020 WL 3446865.)

Sorority Had No Legal Duty to Follow University Protocol Vis-à-Vis Off-Campus Parties.

Plaintiff went to an off-campus sorority party at California State University, Northridge (CSUN). Two men at the party attacked him suddenly and without provocation. Plaintiff sued members of the sorority, asserting a claim for negligence based on their alleged failure to follow certain risk management protocols adopted by CSUN pertaining to off-campus events. The trial court sustained defendants’ demurrers and dismissed the action. Affirming, the Court of Appeal stated: “Respondents did not owe plaintiff a legal duty to follow CSUN’s Fraternal Organization Safety Protocols to prevent a third party criminal attack.” (Hanouchian v. Steele (Cal. App. 2nd Dist., Div. 3, June 24, 2020) 2020 WL 3446862.)

Award of Cost of Proof Reversed.

Barely a month after defendants appeared in a case, they propounded requests for admissions (RFA’s). Some of the RFA’s asked plaintiffs to admit they had no claim against a defendant. Plaintiff denied all RFA’s. Defendants succeeded at trial and submitted a cost bill for their costs to prove what plaintiffs denied. The trial court awarded those costs. Reversing, the Court of Appeal stated: “We conclude that the costs of proof award here is not ‘in conformity with the spirit of the law’—it does not ‘subserve . . . substantial justice.’” (Universal Home Improvement, Inc. v. Robertson (Cal. App. 1st Dist., Div. 2, June 24, 2020) 2020 WL 3446265.)

The Illegal Immigration Reform and Immigrant Responsibility Act is Constitutional.

The opinion of the U.S. Supreme Court begins:  “Every year, hundreds of thousands of aliens are apprehended at or near the border attempting to enter this country illegally. Many ask for asylum, claiming that they would be persecuted if returned to their home countries. Some of these claims are valid, and by granting asylum, the United States lives up to its ideals and its treaty obligations. Most asylum claims, however, ultimately fail, and some are fraudulent.” The issue was the constitutionality of the Illegal Immigration Reform and Immigrant Responsibility Act (110 Stat. 3009-546; IIRIRA). Part of IIRIRA contains Congress’s assessment that detaining all asylum seekers until the full-blown removal process is completed would place an unacceptable burden on this country’s immigration system, and that releasing them would present an undue risk that they would fail to appear for removal proceedings. The high court held, “In short, under our precedents, neither the Suspension Clause nor the Due Process Clause of the Fifth Amendment requires any further review of respondent’s claims, and IIRIRA’s limitations on habeas review are constitutional as applied.” (Department of Homeland Security v. Thuraissigiam (U.S., Jun. 25, 2020) 140 S.Ct. 1959.)

Previously we reported:
County District Attorney Does Not Represent the Whole State.

Representing the People of the State of California, the District Attorney of a California county sued a pharmaceutical company alleging it engaged in a scheme to keep generic versions of a prescription drug off the market in violation of California law. The D.A. sought civil penalties and restitution. The drug company unsuccessfully sought to strike portions of the complaint seeking restitution and penalties based on conduct outside the the D.A.’s county. The drug company filed a petition for extraordinary relief in the Court of Appeal. The appellate court granted the petition, stating: “The California Constitution designates the Attorney General the ‘chief law officer of the State’ (Cal. Const., art. V, § 13), and consistent with this constitutional provision, the Attorney General ‘has charge, as attorney, of all legal matters in which the State is interested’ (Gov. Code, § 12511) and also ‘shall . . . prosecute or defend all causes to which the State . . . is a party in his or her official capacity.’ (Gov. Code, § 12512.) The District Attorney, on the other hand, is a county officer whose territorial jurisdiction and power is limited accordingly. Though [Bus. & Prof. Code] section 17204 confers standing on district attorneys to sue in the name of the people of the State of California, it cannot constitutionally or reasonably be interpreted to grant the District Attorney power to seek and recover restitution and civil penalty relief for violations occurring outside the jurisdiction of the county in which he was elected. A contrary conclusion would permit the District Attorney to usurp the Attorney General’s statewide authority and impermissibly bind his sister district attorneys, precluding them from pursuing their own relief. Thus, in the absence of written consent by the Attorney General and other county district attorneys, the District Attorney must confine such monetary recovery to violations occurring within the county he serves.” (Abbott Laboratories v. Superior Court (Cal. App. 4th Dist., Div. 1, May 31, 2018) 24 Cal.App.5th 1.)

The latest:

A county district attorney initiated an action in the name of the People of the State of California against pharmaceutical companies alleging they violated California’s unfair competition law (Bus. & Prof. Code, § 17200 et seq.) by intentionally delaying the sale of a generic version of a popular pharmaceutical drug to maximize their profits at the expense of consumers. The trial court initially denied defendants’ motion to strike references to the entire State of California in the complaint, but the Court of Appeal directed the trial court to grant the motion. Petitioning the California Supreme Court, the People asked the court to determine whether a district attorney’s authority to enforce California’s consumer protection law is limited to the county’s borders. Reversing the judgment of the Court of Appeal, California’s high court stated: “The UCL does not preclude a district attorney, in a properly pleaded case, from including allegations of violations occurring outside as well as within the borders of his or her county.” (Abbott Laboratories v. Superior Court (Cal., June 25, 2020) 2020 WL 3525181.)

Contract or Tort?

If this quiet title action was a contract claim, a six-year statute of limitations applies, the action was timely filed, and plaintiffs are entitled to summary judgment. But if the action was in tort, it was not timely filed. The district court granted plaintiffs summary judgment. The Ninth Circuit affirmed, stating: “We conclude that the statute of limitations applicable to a ‘contract’ claim under 12 U.S.C. § 4617(b)(12)(A)(i) applies and affirm the judgment of the district court.” (M&T Bank v. SFR Investments Pool 1 (9th Cir., June 25, 2020) 2020 WL 3458978.)

Infringement of Trade Dresses.

Herman Miller (HM) sells Eames chairs and Aeron chairs. HM sued Blumenthal Distributing, Inc. (OSP) for trade dress infringement. A jury found for HM regarding the Eames chair, finding willful infringement and dilution. HM was awarded $3,378,966 in infringement damages and $3,000,000 in dilution damages. OSP was enjoined from continuing its unlawful activities. But the jury found against HM with regard to the Aeron chair, concluding that HM’s registered and unregistered trade dresses were unprotectable because they were “functional.” Both parties appealed. The Ninth Circuit (1) affirmed the judgment in favor of HM on its causes of action for infringement of its registered and unregistered Eames trade dresses; (2) reversed the judgment in favor of HM on its cause of action for dilution; and (3) reversed the judgment in favor of OSP regarding the Aeron chair and remanded for a new trial. (Blumenthal Distributing, Inc. v. Herman Miller, Inc. (9th Cir., June 25, 2020) 2020 WL 3458983.)

Paying for the Border Wall.

The Department of Defense Appropriations Act of 2019 authorized the Department of Defense to make budgetary transfers from funds appropriated by Congress to the department for other purposes “for higher priority items, based on unforeseen military requirements.” The department relied on the act in transferring $2.5 billion to construct a wall on the southern border of the United States in California and New Mexico. The Ninth Circuit concluded that the act did not authorize the fund transfers. (California v. Trump (9th Cir., June 26, 2020) 2020 WL 3480841); see also Sierra Club v. Trump (9th Cir., June 26, 2020) 2020 WL 3478900.)

Convention Against Torture.

Petitioner is a native of Mexico. Her request for asylum under the Convention Against Torture (CAT) was denied by an immigration judge and the Board of Immigration Appeals. Petitioner has lived in the United States for almost twenty years. She fled Mexico as a teenager after being raped multiple times and being ejected from her parents’ home because she is a lesbian. Petitioner eventually became involved in an abusive relationship with Luna, a man connected to Los Zetas, one of Mexico’s major drug cartels. After Petitioner reported Luna for raping her twelve-year-old daughter in 2013, and Luna went to prison as a result, Luna’s family began a campaign of threatening Petitioner that if she ever returned to Mexico, Petitioner and her daughter would be killed. Granting relief, the Ninth Circuit stated: “We grant the petition and remand for the agency to grant deferral of removal pursuant to CAT because the record compels the conclusion that Petitioner will more likely than not be tortured if she is removed to Mexico.” (Xochihua-Jaimes v. Barr (9th Cir., June 26, 2020) 2020 WL 3479669.)

Previously we reported about a different case:
Adding an Alter Ego Defendant to a Judgment.

The first paragraph of the Court of Appeal opinion says it all:  “In petitioning the trial court to amend a judgment to add an alter ego defendant, must the plaintiff proceed by a motion in the original action, or may plaintiff proceed by complaint in an independent action on the judgment? Either procedure will do.” (Lopez v. Escamilla (Cal. App. 2nd Dist, Div. 6, May 4, 2020) 48 Cal.App.5th 763.)

The present case:

Plaintiffs obtained a judgment, including an award ofr attorney fees,  and then filed a new action seeking to hold other defendants liable on the judgment as alter egos of the judgment debtors. One of the defendants successfully defended the new action and then moved for attorney fees pursuant to the underlying contract. The trial court granted the motion. On appeal, plaintiffs contended the action to add alter egos was not an action on the contract, so fees were unavailable under Civil Code § 1717. Affirming the award of attorney fees, the Court of Appeal stated: “When a judgment creditor attempts to add a party to a breach of contract judgment that includes a contractual fee award, the suit is essentially ‘on the contract’ for purposes of Civil Code section 1717.” (MSY Trading Inc. v. Saleen Automotive, Inc. (Cal. App. 4th Dist., Div. 3, June 26, 2020) 2020 WL 3481424.)

The Consumer Financial Protection Bureau.

In the wake of the 2008 financial crisis, Congress established the Consumer Financial Protection Bureau (CFPB), an independent regulatory agency tasked with ensuring that consumer debt products are safe and transparent. Congress provided that the CFPB would be led by a single director, who serves for a longer term than the President and cannot be removed by the President except for inefficiency, neglect, or malfeasance. The CFPB director has no boss, peers, or voters to report to. Yet the director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U.S. economy. Plaintiff is a California-based law firm that provides debt-related services to clients. The CFPB made demands upon plaintiff, and in response, plaintiff contended the CFPB’s structure violated the Constitution’s separation of powers. Precedents have recognized only two exceptions to the President’s unrestricted removal power: 1) Congress could create expert agencies led by a group of principal officers removable by the President only for good cause; and, 2) Congress could provide tenure protections to certain inferior officers with narrowly defined duties. In stating its holding in the instant case, the U.S. Supreme Court stated: “We are now asked to extend these precedents to a new configuration: an independent agency that wields significant executive power and is run by a single individual who cannot be removed by the President unless certain statutory criteria are met. We decline to take that step. . . We therefore hold that the structure of the CFPB violates the separation of powers. We go on to hold that the CFPB Director’s removal protection is severable from the other statutory provisions bearing on the CFPB’s authority. The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will.” (Seila Law LLC v. Consumer Financial Protection Bureau (U.S., June 29, 2020) 2020 WL 3492641.)

Following the Rule of Law.

In this case, the U.S. Supreme Court considered the constitutionality of a Louisiana abortion statute, Act 620, that is almost word-for-word identical to Texas’s admitting-privileges law. In Whole Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016), the high court found the Texas statute unconstitutional, and in this case, it held the same for Louisiana’s statute. (June Medical Services L.L.C. v. Russo (U.S., June 29, 2020) 2020 WL 3492640.)

Foreign Organizations Operating Abroad Have No Rights Under the U.S. Constitution.

Congress passed the Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (117 Stat. 711, as amended, 22 U. S. C. §7601 et seq; Leadership Act). It was the largest international public health program of its kind ever created. To advance the global relief effort, Congress has allocated billions of dollars to American and foreign nongovernmental organizations (NGO’s) that combat HIV/AIDS abroad. Congress sought to fund only those organizations that have, or agree to have, a “policy explicitly opposing prostitution and sex trafficking” because they “are degrading to women and children.” In Agency for Int’l Development v. Alliance for Open Society Int’l, Inc. (2013) 570 U.S. 205, 214, the Supreme Court held the policy requirement violated the First Amendment’s free speech right of American NGO’s. Plaintiffs in the instant case are American NGO’s that receive Leadership Act funds to fight HIV/AIDS abroad who contend their foreign affiliates are also entitled to benefit from that First Amendment protection. The U.S. Supreme Court disagreed, holding that “foreign organizations operating abroad possess no rights under the U. S. Constitution.” (Agency for Int’l Development v. Alliance for Open Society Int’l, Inc. (U.S., June 29, 2020) 2020 WL 3492638.)

Wage and Hour Allegations of Flight Attendants.

Concerning the application of various California wage and hour laws to flight attendants who work primarily outside California’s territorial jurisdiction, the California Supreme Court held: “[W]e conclude that California’s wage statement laws apply only to flight attendants who have their base of work operations in California, and that the same is true of California laws governing the timing of wage payments. Finally, we hold that, whether or not California’s minimum wage laws apply to work performed on the ground during the flight attendants’ brief and episodic stops in California, the pay scheme challenged here complies with the state requirement that employers pay their employees at least the minimum wage for all hours worked.” (Oman v. Delta Air Lines, Inc. (Cal., June 29, 2020) 2020 WL 352709.)

California Supreme Court Answers Ninth Circuit’s Wage and Hour Question.

Plaintiffs are pilots and flight attendants for a global airline based outside California. Plaintiffs reside in California but perform most of their work outside of California. They are not paid according to California wage law, but instead are paid according to the terms of a collective bargaining agreement under federal law. The Ninth Circuit asked the California Supreme Court to decide whether, given these circumstances, the airline is required to provide plaintiffs with wage statements that meet the various requirements of California law. California’s high court held: “We conclude that whether plaintiffs are entitled to California-compliant wage statements depends on whether their principal place of work is in California. For pilots, flight attendants, and other interstate transportation workers who do not perform a majority of their work in any one state, this test is satisfied when California serves as their base of operations, regardless of their place of residence or whether a collective bargaining agreement governs their pay.”  (Ward v. United Airlines, Inc. (Cal., June 29, 2020) 2020 WL 3495310.)

Trial Court Abused its Discretion by Sustaining Demurrer to Original Complaint Without Leave to Amend.

A self-represented litigant sued his insurer and then did not respond to its demurrer. The trial court sustained the demurrer without leave to amend and entered a judgment of dismissal. On appeal, plaintiff argued only that the trial court should have given him an opportunity to amend the complaint. The Court of Appeal noted that “for an original complaint, regardless whether the plaintiff has requested leave to amend, it has long been the rule that a trial court’s denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face that it is incapable of amendment.’” Reversing, the appeals court directed the trial court to allow the plaintiff to amend his complaint to attempt to allege valid causes of action against the defendant. (Eghtesad v. State Farm General Ins. Co., (Cal. App. 1st Dist., Div. 2) June 29, 2020) 2020 WL 3496797.)

Remanded for Award of Private Attorney General Fees.

John Doe was admitted as a freshman student to the University of California at Santa Barbara (UCSB). Before he even arrived in Santa Barbara, UCSB placed him on interim suspension pending its investigation into an allegation of dating-relationship violence. UCSB then delayed completion of the investigation, in violation of its own written policies. Doe brought an action against the Regents of the University of California. The superior court preliminarily enjoined the interim suspension pending completion of the administrative proceedings. Ultimately, Doe was exonerated in the administrative proceedings. Over his objection, the superior court then dismissed his action as moot. The court denied Doe’s motion for attorney fees under Code of Civil Procedure § 1021.5 as a private attorney general, reasoning that he had failed to show the litigation conferred “a significant benefit . . . on the general public or a large class of persons.” Doe appealed from the judgment of dismissal and the postjudgment order denying his motion for attorney fees. The Court of Appeal affirmed the order of dismissal, but concluded Doe satisfied the criteria for an award of fees under §1021.5, reversed the denial of the fee motion, and remanded for a determination of the amount of fees to be awarded. (Doe v. Regents of Univ. of California (Cal. App. 2nd Dist., Div. 6, June 29, 2020) 2020 WL 3496833.)

Reimbursement for Community Contribution to Spouse’s Education.

Wife used community funds to repay her student loans for education completed before marriage. The Court of Appeal concluded that under Family Code § 2641 the trial court had no discretion to deny reimbursement to the community, stating, “Based on the above, we direct that the community be reimbursed for community expenditures made during the marriage towards wife’s institutional and family-provided education loans.” (In re Marriage of Mullonkal and Kodiyamplakkil (Cal. App. 3rd Dist., June 29, 2020) 2020 WL 3496875.)

Insufficient Specification of Reasons for Granting a New Trial.

A jury returned a verdict for defendant in an asbestos-related personal injury action. The trial court granted plaintiff a new trial on the ground of insufficient evidence. Pursuant to Code of Civil Procedure § 657, a trial court granting a new trial must specify both the ground for granting the new trial and “the court’s reason or reasons for granting the new trial upon each ground stated.” The trial court stated that it granted a new trial because “ ‘the court finds plaintiff presented sufficient credible evidence that he worked with arc chutes manufactured and supplied by Cutler-Hammer; the arc chutes contained asbestos; asbestos fibers from the arc chutes were released during plaintiff’s work with them; and the levels of fibers released posed a hazard to plaintiff, and may have been a substantial factor in causing injury to him,’ ” and  “ ‘[T]he evidence submitted by Eaton was not sufficient to rebut this evidence submitted by plaintiff..’ ” The Court of Appeal found the trial court’s explanation insufficient because it failed to discuss the evidence and was not specific enough to facilitate appellate review. The appeals court reversed the order granting a new trial and affirmed the judgment for defendant. (Estes v. Eaton Corporation (Cal. App. 1st Dist., Div. 2, June 29, 2020) 2020 WL 3496758.)

Revocation of a Trust.

Probate Code § 15401 provides a method for revoking a trust. The trustor utilized that method and revoked a trust. The trust beneficiary claimed the trust required use of a different method. The Court of Appeal disagreed, holding that the trust did not state its revocation procedure was exclusive, so the procedure under § 15401 was available to the trustor. (Cundall v. Mitchell-Clyde (Cal App. 2nd Dist., Div. 2, June 29, 2020) 2020 WL 3496803.)

The Supreme Law of the Land Condemns Discrimination Against Religious Schools.

The Montana legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The Montana court relied on the “no-aid” provision of the state constitution, which prohibits any aid to a school controlled by a “church, sect, or denomination.” The question presented to the U.S. Supreme Court was whether the free exercise clause of the U.S. Constitution barred that application of the no-aid provision. Reversing the Montana court, the Supreme Court said that the supremacy clause provides that “ ‘the Judges in every State shall be bound’ ” by the Federal Constitution, “ ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ ” Art. VI, cl. 2. “[T]his Clause creates a rule of decision” directing state courts that they “must not give effect to state laws that conflict with federal law[].”  The high court held that the “supreme law of the land” condemns discrimination against religious schools and the families whose children attend them. (Espinoza v. Montana Dept. of Revenue (U.S., June 30, 2020) 2020 WL 3518364.) Is Not a Generic Name. sought to register the trademark “” A generic name—the name of a class of products or services—is ineligible for federal trademark registration. The word “booking,” the parties did not dispute, is generic for hotel-reservation services. Concluding that “” is a generic name for online hotel-reservation services, the U. S. Patent and Trademark Office (PTO) refused registration. The PTO urged the U.S. Supreme Court to adopt a rule that the combination of a generic word and “.com” is generic. The Supreme Court rejected the PTO’s argument, holding: “A term styled “” is a generic name for a class of goods or services only if the term has that meaning to consumers.” (U.S. Patent and Trademark Office v. B.V. (U.S., June 30, 2020) 2020 WL 3518365.)

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