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

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Julia C. Shear Kushner
  • Editors, Dean Bochner, Jonathan Grossman, Jennifer Hansen, Judith Sklar, David Williams, Greg Wolff, Ryan Wu
Whistleblower Suit Tossed.

Under Labor Code § 1102.5, an employer cannot retaliate against an employee for disclosing information that the employee has reasonable cause to believe reveals a violation of a local, state, or federal law. Plaintiff alleged that the county retaliated against her in violation of this statute after she reported that she was working below her service classification. The trial court granted summary judgment for the county. Affirming, the Court of Appeal concluded that the county provided sufficient undisputed evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by § 1102.5. (Vatalaro v. County of Sacramento (Cal. App. 3rd Dist., June 1, 2022) 79 Cal.App.5th 367.)

Uber Customers Are on Their Own When It Comes to Sexual Assaults by Drivers of Vehicles with Uber Decals.

Plaintiffs are three women who were abducted and sexually assaulted by assailants who had lured the women into their vehicles by posing as authorized Uber drivers. The assailants were not affiliated with Uber, but had obtained Uber decals from the company’s website and affixed them to their vehicles. The complaint alleged the Uber business model created the risk that criminals would employ this scheme and failed to protect potential victims from it. The trial court sustained Uber’s demurrer without leave to amend and dismissed the case. Affirming, the Court of Appeal concluded that “the Uber entities were not in a special relationship with the [plaintiffs] that would give rise to a duty to protect [them] against third party assaults, or to warn them about the same.” (Doe No. 1 v. Uber Technologies, Inc. (Cal. App. 2nd Dist., Div. 1, June 1, 2022) 79 Cal.App.5th 410.)

Los Angeles District Attorney’s Policy of Dismissing Enhancements.

Los Angeles District Attorney George Gascon issued a policy directing all deputies to orally amend the charging document to dismiss or withdraw any sentence enhancement alleged in a pending case. Based on that policy, and citing Penal Code § 1385, the deputy district attorney moved to dismiss firearm enhancements alleged against defendant. The trial court denied the motion and refused to consider the new policy in determining whether to dismiss the enhancements under § 1385. Defendant sought writ relief. The Court of Appeal issued a writ of mandate, stating: “We agree with [the defendant] and the People that the trial court misunderstood the scope of its discretion under section 1385 when it refused to consider the district attorney’s new policy, but we disagree with the People that the trial court lacked discretion to deny a motion by the People to dismiss enhancements pursuant to that policy.” The appeals court ordered the trial court to schedule a hearing to determine whether this was an appropriate case in which to dismiss the sentence enhancements under § 1385, and to consider Gascon’s policy among other factors in determining whether a dismissal of the firearm enhancements was in furtherance of justice. (Nazir v. Superior Court of Los Angeles County (Cal. App. 2nd Dist., Div. 7, June 2, 2022) 79 Cal.App.5th 478.)

Los Angeles District Attorney’s Policies Challenged by District Attorneys Association.

The first question presented here was: Can the voters, through the initiative process, or the legislature, through legislation, require prosecutors to plead and prove prior convictions to qualify a defendant for the alternative sentencing scheme prescribed by the three strikes law? The Court of Appeal answered: Yes for pleading. No for proving. The second question was: Can courts require prosecutors, when moving to eliminate from a charging document (by dismissal or amendment) allegations of prior strikes and sentence enhancements, to base the motion on individualized factors concerning the defendant or the alleged crime? The Court of Appeal answered: No, but courts do not have to grant those motions. (Association of Deputy District Attorneys for Los Angeles County v. Gascon (Cal. App. 2nd Dist., Div. 7, June 2, 2022) 79 Cal.App.5th 503.)

Denial of Need-Based Attorney Fees After a Finding of Overlitigation.

In a family law matter, the trial court denied a party need-based attorney fees under Family Code § 2030 after finding that the requesting party had overlitigated the case. The Court of Appeal affirmed on the ground that substantial evidence supported the trial court’s ruling. (In re Marriage of Nakamoto and Hsu (Cal. App. 4th Dist., Div. 3, June 2, 2022) 79 Cal.App.5th 457.)

Allegations of Forced Labor in the United States.

Plaintiffs were previously held for years in a civil immigration detention facility operated by defendant. They allege they were not charged with any crime, were held solely due to their immigration status, and were forced to work without adequate compensation. They sued for violations of the Victims of Trafficking and Violence Protection Act of 2000 (18 U.S.C. § 1589 et seq.), the California Trafficking Victims Protection Act (Civ. Code, § 52.5), various provisions of the Labor Code, and other state laws. The district court certified the case as a class action. Applying an abuse of discretion standard of review, the Ninth Circuit affirmed. (Owino v. CoreCivic, Inc. (9th Cir., June 3, 2022) 36 F.4th 839.)

Personal Jurisdiction.

Plaintiff is a Florida resident who owns a Florida law firm that specializes in assisting clients associated with the Catholic Church with employee benefits issues, including Employee Retirement Income Security Act issues. In late 2015, the Byzantine Catholic Eparchy of Phoenix, an Arizona entity, hired plaintiff to investigate its health care benefits plan, draft health plan documents, and, if necessary, pursue litigation on its behalf. Those tasks required plaintiff to regularly direct communications toward Arizona, meet with clients in Arizona, and perform work in Arizona. Plaintiff brought the current action in Arizona against three bishops of the Byzantine Catholic Church (who were residents of New Jersey, Ohio, and Pennsylvania) and their respective dioceses, alleging that they directed defamatory statements about him toward individuals and entities in Arizona and tortiously interfered with his contractual relationship with the Phoenix Eparchy. The district court dismissed the action for lack of personal jurisdiction. Reversing, the Ninth Circuit stated: “Where a defendant directs communications that are defamatory toward a forum state and seeks to interfere with a forum state contract, the defendant has purposefully directed conduct at the forum state, and the defendant knows or should know that such conduct is likely to cause harm in the forum state.” (Burri Law PA v. Skurla (9th Cir., June 3, 2022) 35 F.4th 1207.)

Is It “I’m Depraved on Account of I’m Deprived” or “I’m Deprived on Account of I’m Depraved”? (Westside Story, Lyrics by Stephen Sondheim.)

Plaintiffs are state prison inmates who claim they have the right to possess a personal television in their cells, rather than being limited to shared televisions located in common areas. They asserted various claims flowing from enforcement of regulations that prohibited them from possessing a television in their cells. The trial court rejected those claims, denying their request for a writ of habeas corpus and sustaining respondents’ demurrer to their claims for a writ of mandate and declaratory relief. Finding no fault in the trial court’s rulings, the Court of Appeal explained that plaintiffs “have not cited any case that holds there is a constitutionally protected right to watch television at all while incarcerated or detained, let alone the right to possess a personal television so programs can be watched privately, rather than on a shared television.” (In re Dohner (Cal. App. 4th Dist., Div. 2, June 3, 2022) 79 Cal.App.5th 590.)

Medical Expenses for Future Medical Care Are Subject to Reimbursement Under Florida’s Medicaid Program.

Plaintiff suffered catastrophic injuries after being hit by a truck. The state of Florida paid for her medical expenses under its Medicaid program. The U.S. Supreme Court had to determine whether the federal Medicaid Act provides for a state Medicaid program to recover reimbursement for Medicaid’s payment of a beneficiary’s past medical expenses by taking funds from the portion of the beneficiary’s tort recovery that compensates the plaintiff for future medical expenses. The U.S. Supreme Court held that the federal Medicaid Act does not preempt Florida’s policies dictating how the state can obtain Medicaid reimbursements from third parties and that Florida was therefore able to seek reimbursement from settlement payments allocated for future—and not just past—medical care. (Gallardo v. Marstiller (U.S., June 6, 2022) 142 S.Ct. 1751.)

Punitive Damages Award Found Excessive.

Vacating an award of punitive damages for lack of substantial evidence of defendants’ ability to pay, the Court of Appeal explained that “there [wa]s insufficient evidence of appellant’s financial condition to support [the punitive award], and what little evidence was provided regarding his financial condition suggest[ed] the award was excessive. [¶] . . . [¶] ‘When a punitive damage award is reversed based on the insufficiency of the evidence, no retrial of the issue is required.’ [Citation.]” Accordingly, the court remanded the case with directions to vacate the punitive damages award and otherwise affirmed the judgment. (Doe v. Lee (Cal. App. 3rd Dist., June 6, 2022) 79 Cal.App.5th 612.)

The Party who Won Appeared by Zoom; the Party who Lost Appeared by Telephone.

After a hearing on a request for a restraining order held with one side on Zoom and the other on telephone, the party on telephone lost. On appeal, the losing party argued her due process rights were violated when the court issued the order. Affirming, the Court of Appeal stated: “We find L.B. forfeited her challenge to the order as it applies to her by failing to object to the video conference versus telephone appearances during the hearing in the trial court.”  (D.Z. v. L.B. (Cal. App. 3rd Dist., June 6, 2022) 79 Cal.App.5th 625.)

Airline Workers Exempt from Federal Arbitration Act.

Plaintiff works for Southwest Airlines as a ramp supervisor. Her work frequently requires her to load and unload baggage, airmail, and commercial cargo on and off airplanes that travel across the country. The question presented was whether, under 9 U.S.C. § 1 of the Federal Arbitration Act, she belongs to a “class of workers engaged in foreign or interstate commerce” that is exempted from the Act’s coverage. Plaintiff argued that because air transportation is an industry engaged in interstate commerce, airline employees constitute a class of workers covered by § 1. Southwest maintained that § 1 “exempts classes of workers based on their conduct, not their employer’s,” and the relevant class therefore includes only those airline employees who are actually engaged in interstate commerce in their day-to-day work. Affirming judgment for plaintiff, the U.S. Supreme Court stated: “Latrice Saxon frequently loads and unloads cargo on and off airplanes that travel in interstate commerce. She therefore belongs to a ‘class of workers engaged in foreign or interstate commerce’ to which §1’s exemption applies.” (Southwest Airlines Co. v. Saxon (U.S., June 6, 2022) 142 S.Ct. 1783.)

Thanks for Your Service. Now Start at the Beginning Level Again.

Plaintiff was at the entry level as a longshoreman when he joined the U.S. Air Force. After nine years of active duty, he returned to work and requested a promotion to the position he claimed he likely would have attained had he not served in the military. When his request was denied, he filed suit alleging discrimination under the Uniformed Services Employment and Reemployment Rights Act ( 38 U.S.C. § 4301, et seq.; USERRA), a federal law that, inter alia, protects servicemembers in their reemployment following service in the armed forces. Reversing, the Ninth Circuit stated: “Belaustegui has demonstrated his initial entitlement to USERRA benefits. And defendants have advanced no argument to suggest that it was not reasonably certain that Belaustegui, had he stayed at Port Hueneme, would not have achieved Class B status.” The matter was remanded for the trial court to consider defendant’s other arguments regarding alleged ineligibility under USERRA. (Belaustegui v. International Longshore and Warehouse Union (9th Cir., June 7, 2022) 36 F.4th 919.)

Summary Judgment for Alter Ego Defendant Reversed.

The creditor of a corporation obtained a default judgment against the corporation for $157,370. The corporation had no funds or assets and had been suspended by the Department of Corporations. The creditor then sued the sole shareholder of the corporation for $157,370. The trial court entered summary judgment for the alter ego defendant and the corporation. The Court of Appeal reversed, stating: “Under the alter ego doctrine, the corporate veil may be lifted to show the corporate form is a fiction and determine who controls the corporate entity and who is liable for its debts.” “We conclude, among other things, that [(]1) the trial court erred by granting summary judgment in favor of the corporation; there are triable issues of fact concerning. Escamilla’s alter ego liability; and (2) Lopez’s civil action does not violate Escamilla’s right to due process.” (Lopez v. Escamilla (Cal. App. 2nd Dist., Div. 6, June 7, 2022) 79 Cal.App.5th 646.)

Cursory Search in Response to FOIA Request.

Plaintiffs sent a request for documents under the Freedom of Information Act (5 U.S.C. § 552; FOIA), after the government decided not to factor in Alaska’s minimum wage increase into a cooperative arbitration system to set the price of crab. In response to plaintiff’s request, the government used three—really two—search terms: “binding arbitration,” “arbitration,” and “crab.” The district court granted summary judgment for the government. Reversing, the Ninth Circuit stated: “On the facts here, these terms were not reasonably calculated to uncover all documents relevant to ICE’s request. We therefore hold the government failed to uphold its obligation to adequately search for records and reverse.” (Inter-Cooperative Exchange v. United States Department of Commerce (9th Cir., June 7, 2022) 36 F.4th 905.)

Previously we reported: Bivens Case to Proceed in Federal Court.

Plaintiff operates a bed and breakfast in Washington on the border with Canada. When a guest who was lawfully in the United States arrived from Turkey, a border patrol agent followed him into the driveway. Plaintiff asked the agent to leave. The agent allegedly shoved plaintiff against a car, grabbed him, and pushed him to the ground, causing injury to plaintiff. After plaintiff complained to the agent’s superiors, the agent retaliated by, among other things, contacting the Internal Revenue Service and asking it to look into plaintiff’s tax status. Plaintiff sued the agent for damages. A federal trial court granted summary judgment to the agent. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 U.S. 388 recognized an implied right of action for damages under the Constitution against federal officers. The Supreme Court has made clear that “expanding the Bivens remedy is now a disfavored judicial activity” in Ziglar v. Abbasi (2017) 137 S.Ct. 1843, 1857. Reversing summary judgment, the Ninth Circuit stated: “We conclude that Bivens remedies are available in the circumstances of this case, where a United States citizen alleges that a border patrol agent violated the Fourth Amendment by using excessive force while carrying out official duties within the United States, and violated the First Amendment by engaging in retaliation entirely unconnected to his official duties.” (Boule v. Egbert (9th Cir., Nov. 20, 2020) 980 F.3d 1309.)

The latest:

Supreme Court Once Again Declines to Extend Holding in Bivens. In Bivens v. Six Unknown Federal Narcotics Agents (1971) 403 U.S. 388, the U.S. Supreme Court authorized a damages action against federal officials for alleged violations of the Fourth Amendment. Over the past 42 years, however, it has declined 11 times to imply a similar cause of action for other alleged constitutional violations. The nation’s highest court reversed a judgment for plaintiff, stating: “Because our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts, we reverse.” (Egbert v. Boule (U.S., June 8, 2022) 142 S.Ct. 1793.)

Defeating a Defendant’s Claim of Qualified Immunity Does Not Entitle a Plaintiff to Attorney Fees.

Plaintiff brought this 42 U.S.C. § 1983 action against defendant, a deputy sergeant with the Multnomah County Sheriff’s Office. Plaintiff alleged that defendant violated her Fourth Amendment right to be free of excessive force by pepper-spraying her without adequate justification. The trial court denied defendant’s motion for qualified immunity, and defendant filed this interlocutory appeal. In an unpublished disposition, the Ninth Circuit affirmed the denial of qualified immunity and remanded the case for trial. Plaintiff then sought attorney’s fees pursuant to 42 U.S.C. § 1988(b), which generally grants courts discretion to award “a reasonable attorney’s fee” to a “prevailing party.” The Ninth Circuit held plaintiff was not entitled to fees, stating: “Plaintiff is not a ‘prevailing party’ within the meaning of § 1988(b). We publish this order to reaffirm that a plaintiff who accomplishes no more than to defeat a defendant’s motion for qualified immunity is not entitled to fees pursuant to § 1988(b), because the plaintiff has not yet prevailed on any claim.” (Senn v. Smith (9th Cir., June 8, 2022) 35 F.4th 1223.)

No Spousal Support when There’s a Bigamous Marriage.

A man married a woman in the U.S. and later married a woman in Lebanon. When the man attempted to terminate the Lebanese marriage, the Lebanese woman brought this action for spousal support in California state court. Family Code § 2201 provides that a subsequent marriage contracted by a person during the life of his or her former spouse with a person other than the former spouse is illegal and void. The trial court ruled the Lebanese marriage was bigamous and therefore void under Family Code § 2201. The Court of Appeal agreed and affirmed the judgment. (In re Marriage of Elali and Marchoud (Cal. App. 4th Dist., Div. 2, June 8, 2022) 79 Cal.App.5th 668.)

Evasive Discovery Response Leads to Summary Judgment.

Defendant’s interrogatory:   Do YOU contend that the [Notice of Trustee Sale] that YOU reference in paragraph 15 of the [Second Amended Complaint] was not mailed to YOU in compliance with California Civil Code section 2924b? If so, then please provide all facts RELATED TO this contention.

Plaintiff’s response:   Unsure.

But later, in response to defendant’s motion for summary judgment, plaintiff specified the type of wrongdoing she was accusing the defendant of committing. The trial court granted defendant’s motion. Affirming, the Court of Appeal stated: “A party cannot evade discovery duties and then try to defeat summary judgment by adding factual claims to create last-minute disputed issues.” (Field v. U.S. Bank National Association (Cal. App. 2nd Dist., Div. 8, June 9, 2022) 79 Cal.App.5th 703.)

No Trespass to Chattels.

Workers compensation counsel used a website to compile documents that would be typical in a litigation file, such as correspondence, memos to file, research memos, etc. As a case proceeded, the file was updated by counsel. Bringing an action for trespass to chattels, counsel contended defendant insurance company hired persons to hack the website and copy thousands of documents. The trial court sustained defendant’s demurrer. Affirming, the Court of Appeal stated: “We conclude appellants failed to allege any actionable injury because: (1) they did not allege damage or disruption to the computer system, as required by Intel [Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348, 1350–1351]; and (2) in any event, they did not allege injury to the copied files or their asserted property interests therein.” (Casillas v. Berkshire Hathaway Homestate Insurance Company (Cal. App. 2nd Dist., Div. 4, June 10, 2022) 79 Cal.App.5th 755.)

Debtor Thwarted in Attempts to Avoid Paying Up.

Plaintiff secured an arbitration award against defendant in London. A federal court confirmed the award, giving plaintiff the right to execute the judgment in California. An action was subsequently brought under the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. §§ 1961–1968), alleging elaborate schemes defendant debtor had taken to avoid execution on the judgment. The district court dismissed this action. Reversing, the Ninth Circuit stated: “We conclude that Plaintiff allege[d] a domestic injury, reverse the district court’s dismissal of the complaint, and remand for further proceedings.” (Smagin v. Yegiazaryan (9th Cir., June 10, 2022) 37 F.4th 562.)

No Bond Hearings Required for Detained Noncitizens.

The issue before the U.S. Supreme Court was whether the text of 8 U.S.C. § 1231(a)(6) requires the government to offer detained noncitizens bond hearings after six months of detention, in which the government would bear the burden of proving by clear and convincing evidence that a noncitizen poses a flight risk or a danger to the community. The U.S. Supreme Court held there is no such requirement. (United States v. Arteaga-Martinez (U.S., June 13, 2022) 142 S.Ct. 1827.)

Federal Courts Lack Jurisdiction to Grant Class Relief for Lack of Bond Hearings for Aliens.

The federal government detained two aliens pursuant to 8 U.S.C. § 1231(a)(6), pending removal from this country. They contended they were entitled to bond hearings, and a district court certified a class and granted class-wide relief. The Ninth Circuit affirmed. The U.S. Supreme Court held that under 8 U.S.C. § 1252(f )(1), district courts are deprived of jurisdiction to entertain requests for class-wide injunctive relief. (Garland  v. Gonzalez (U.S., June 13, 2022) 142 S.Ct. 2057.)

Cited Discovery Statute Applies Only to Governmental Proceedings, Not Private Arbitrations.

In two cases before the U.S. Supreme Court, parties sought discovery in the U.S. for use in arbitration proceedings abroad. Under 28 U.S.C. § 1782, federal courts are permitted to order the production of certain evidence for use in a proceeding in a foreign or international tribunal. The parties resisting discovery argued that a private arbitral panel did not qualify as a “foreign or international tribunal” under the statute. The U.S. Supreme Court held: “These consolidated cases require us to decide whether private adjudicatory bodies count as ‘foreign or international tribunals.’ They do not. The statute reaches only governmental or intergovernmental adjudicative bodies, and neither of the arbitral panels involved in these cases fits that bill.” (ZF Automotive US, Inc. v. Luxshare, Ltd. (U.S., June 13, 2022) 142 S.Ct. 2078.)

Successful Employment Applicants Not Entitled to Compensation for Drug Testing.

Defendant employer requires a drug test of successful applicants for employment before they can begin the duties of the job. Plaintiff represents a class of employees who sought reimbursement for the time and travel expenses required to take the test. The district court entered judgment for defendant on the ground that under California law, plaintiffs were not yet employees when they took the drug test. Affirming, the Ninth Circuit agreed with the lower court that “the class members were not employees at the time of the drug test and did not need to be compensated.” (Johnson v. WinCo Foods, LLC (9th Cir., June 13, 2022) 37 F.4th 604.)

FAA Preempts Iskanian.

The U.S. Supreme Court granted certiorari to decide whether the Federal Arbitration Act (9 U.S.C. § 1 et seq.; FAA), preempts a rule of California law that invalidates contractual waivers of the right to assert representative claims under California’s Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). The high court noted that California law characterizes PAGA as creating a type of qui tam action, and that the state is always the real party in interest in a PAGA suit. Here, plaintiff left her position with defendant and thereafter filed a PAGA action against defendant in state court. Her complaint contained a claim that defendant had failed to provide her with her final wages within 72 hours, as required by Labor Code §§ 101–102. But the complaint also asserted a wide array of other code violations allegedly sustained by other employees of defendant, including violations of provisions concerning the minimum wage, overtime, meal periods, rest periods, timing of pay, and pay statements. Defendant moved to compel arbitration of plaintiff’s individual PAGA claim—that is, the claim that arose from the violation she suffered—and to dismiss her other PAGA claims. The trial court denied the motion, and the Court of Appeal affirmed, holding that categorical waivers of PAGA standing are contrary to state policy and that PAGA claims cannot be split into arbitrable individual claims and nonarbitrable “representative” claims. This ruling was dictated by the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348. In Iskanian, the court held that pre-dispute agreements to waive the right to bring “representative” PAGA claims are invalid as a matter of public policy. Reversing the holdings in California, the U.S. Supreme Court stated that “state law cannot condition the enforceability of an arbitration agreement on the availability of a procedural mechanism that would permit a party to expand the scope of the arbitration by introducing claims that the parties did not jointly agree to arbitrate. [¶] A state rule imposing an expansive rule of joinder in the arbitral context would defeat the ability of parties to control which claims are subject to arbitration. [¶] . . . [¶] The effect of Iskanian’s rule mandating this mechanism is to coerce parties into withholding PAGA claims from arbitration.” The Court held “the FAA preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate.” (Viking River Cruises, Inc. v. Moriana (U.S., June 15, 2022.) 142 S.Ct. 1906.)

Under the Hague Abduction Convention, Courts Have Discretion to Determine Whether Child Will Be Safe If Returned to Habitual Residence.

Plaintiff, a U.S. citizen, met defendant, an Italian citizen, while attending a wedding in Milan, Italy, in 2014. Plaintiff soon moved to Milan, and the two wed in August 2015. Their son, B.A.S., was born the next summer in Milan, where the family lived for the first two years of B.A.S.’s life. The relationship was characterized by violence from the beginning. The two fought on an almost daily basis and, during their arguments, defendant would sometimes push, slap, and grab plaintiff and pull her hair. He also yelled and swore at plaintiff and frequently insulted her and called her names, often in front of other people. Defendant once told plaintiff’s family that he would kill her. Much of his abuse of her occurred in front of their son. In July 2018, plaintiff flew with B.A.S. to the U.S. to attend her brother’s wedding. Rather than return as scheduled in August, however, she moved into a domestic violence shelter with B.A.S. In September, defendant filed a criminal complaint in Italy for kidnapping and initiated a civil proceeding seeking sole custody. He also brought an action in New York federal court, and that judge determined B.A.S.’s habitual residence was in Italy and that plaintiff had wrongfully retained B.A.S. in the U.S. in violation of defendant’s rights of custody. The U.S. Supreme Court noted that, under the Hague Convention on the Civil Aspects of International Child Abduction, if a court finds that a child was wrongfully removed from the child’s country of habitual residence, the court ordinarily must order the child’s return. But the high court noted there are exceptions to that rule. A court is not bound to order a child’s return if it finds that return would put the child at a grave risk of physical or psychological harm. In such a circumstance, a court has discretion to determine whether to deny return. The high court remanded the matter to the trial court with instructions: “The District Court should determine whether the measures in question are adequate to order return in light of its factual findings concerning the risk to B.A.S., bearing in mind that the Convention sets as a primary goal the safety of the child.” (Golan v. Saada (U.S., June 15, 2022) 142 S.Ct. 1880.)

Medicare Gave Lower Reimbursement to Low-Income and Rural Communities.

Under Medicare, the Department of Health and Human Services must reimburse hospitals for certain outpatient prescription drugs that the hospitals provide to Medicare patients. HHS has two options. First, if HHS has conducted a survey of hospitals’ acquisition costs for the drugs, HHS may set the reimbursement rates based on the hospitals’ average acquisition costs—that is, the amount that hospitals pay to acquire the prescription drugs—and may vary the reimbursement rates for different groups of hospitals. Second and alternatively, if HHS has not conducted such a survey, HHS must instead set the reimbursement rates based on the average sales price charged by manufacturers for the drugs, and HHS may not vary the reimbursement rates for different groups of hospitals. For 2018 and 2019, HHS did not conduct a survey of hospitals’ acquisition costs for outpatient prescription drugs. But HHS nonetheless substantially reduced the reimbursement rates for one group of hospitals—Section 340B hospitals, which generally serve low-income or rural communities. For those 340B hospitals, this case has immense economic consequences, about $1.6 billion annually. The question before the U.S. Supreme Court was whether HHS had the discretion to vary the reimbursement rates for that one group of hospitals when, as here, HHS did not conduct the required survey of hospitals’ acquisition costs. The high court ruled: “The answer is no.” (American Hospital Association v. Becerra (U.S., June 15, 2022) 142 S.Ct. 1896.)

Case Involving School Closure Order During Pandemic Dismissed as Moot.

Parents of children attending California schools asked a federal court to pass judgment on whether state officials violated federal law when they ordered schools to suspend in-person instruction in 2020 and early 2021. The Ninth Circuit, sitting en banc, noted that schools have been back in session for the past year and dismissed the appeal as moot. (Brach v. Newsom (9th Cir., June 15, 2022) 38 F.4th 6.)

The Anti-SLAPP Statute and Molesting Children.

Seven adults alleged they were molested by a priest as children. They sued the Roman Catholic Archbishop of Los Angeles and related entities, alleging defendants were vicariously liable for ratifying the molestation and directly liable for their own negligence in failing to supervise the priest, and related acts and omissions. The Archdiocese moved to strike the operative complaint under the anti-SLAPP law (Code Civ. Proc., § 425.16), arguing that some of the acts by which it purportedly ratified the molestation or acted negligently constituted speech or litigation conduct protected by the anti-SLAPP statute. Holding against the Archdiocese, the Court of Appeal stated, “the only allegations that might be considered protected activity are merely incidental.” (Ratcliff v. Roman Catholic Archbishop of Los Angeles (Cal. App. 2nd Dist., Div. 5, June 15, 2022) 2022 WL 2158352.)


Glyphosate, the active ingredient in Roundup, is the nation’s most heavily used weedkiller. The Environmental Protection Agency (EPA) recently assessed whether glyphosate poses “any unreasonable risk to man or the environment” and answered, for the most part, “no.” A group of petitioners challenged EPA’s decision, arguing, among other things, that EPA did not adequately consider whether glyphosate causes cancer and shirked its duties under the Endangered Species Act. Remanding the matter back to the EPA for further consideration, the Ninth Circuit stated: “EPA’s errors in assessing human-health risk are serious.” (Natural Resources Defense Council v. U.S. Environmental Protection Agency (9th Cir., June 17, 2022) 38 F.4th 34.)

Further on Roundup. Previously we reported: Huge Jury Award and Interesting Causation Jury Instruction in Roundup Case.

Plaintiff sued the manufacturer of Roundup pesticide, which he used from the 1980s to 2012, after he developed non-Hodgkin’s lymphoma (NHL). The jury returned a verdict for of plaintiff, awarding him $5,267,634.10 in compensatory damages and $75 million in punitive damages. The district court reduced the jury’s punitive damages award to $20 million. On appeal, defendant argued: (1) the Federal Insecticide, Fungicide, and Rodenticide Act preempted plaintiff’s failure-to-warn claims; (2) the district court made a series of evidentiary and jury instruction errors; (3) the district court erred in denying judgment as a matter of law; and (4) the punitive damages award violated California law and the Due Process Clause. Affirming, the Ninth Circuit discussed plaintiff’s expert’s testimony that plaintiff’s exposure to Roundup’s active ingredient, glyphosate, caused his NHL, and defendant’s expert’s testimony that little evidence links glyphosate to cancer in humans, and that plaintiff’s cancer was idiopathic. The district court instructed the jury that, to rule for plaintiff, it must find that glyphosate exposure was a but-for cause of his cancer or one of two or more factors that independently could have caused his cancer. (Hardeman v. Monsanto Company (9th Cir., May 14, 2021) 997 F.3d 941.)

The latest:

The U.S. Supreme Court denied defendant’s petition for writ of certiorari. (Monsanto Co. v. Hardeman (U.S., June 21, 2022) 2022 WL 2203348.)

The Public Utilities Commission and the Public Records Act.

An original mandamus proceeding was brought in the California Court of Appeal. Three questions were presented: (1) Was petitioner required to fully exhaust the administrative remedies set forth in the Public Utilities Code and in California Public Utilities Commission (CPUC) General Order 66-D in order to judicially challenge the commission’s denial of his Public Records Act (PRA) requests? The Court of Appeal said the answer is “no.”; (2) Has the CPUC’s action on petitioner’s administrative appeal rendered this writ proceeding moot? The Court of Appeal said the answer is “no.”; (3) Did the commission properly deny petitioner’s PRA requests on the basis of the “Governor’s correspondence” exemption (Gov. Code, § 6254 (l))? The Court of Appeal said the answer is “yes.” The Governor’s correspondence exemption exempts from disclosure “correspondence of and to the Governor or employees of the Governor’s office or in the custody of or maintained by the Governor’s Legal Affairs Secretary.” Rejecting petitioner’s claim to the contrary, the Court of Appeal found that the exemption is not limited to correspondence between the Governor’s Office and private parties outside of government. Instead, it applies to “correspondence” between the Governor’s Office and other governmental agencies and officials. The appeals court sustained the CPUC’s return by way of demurrer without leave to amend. (Rittiman v. Public Utilities Commission (Cal. App. 1st Dist., Div. 1, June 17, 2022) 2022 WL 2185847.)

Opioid Case in California Stayed.

Allegations of opioid prescription abuse gave rise to an ongoing case in West Virginia. Nearly four years later, several insurance companies sought declaratory relief in California state court relating to those allegations. Specifically, they asked that the California court declare they are not obligated to defend and indemnify certain entities in West Virginia. Meanwhile, the judge in West Virginia made a finding: “St. Paul has filed the California Coverage Action for improper purposes, namely, delay and forum shopping.” Affirming the California trial court’s decision to stay the California action, the Court of Appeal concluded that a stay was in the interests of comity, conservation of judicial resources, and to avoid potential conflicting rulings. (St. Paul Fire & Marine Ins. Co. v. AmerisourceBergen Corp. (Cal. App. 4th Dist., Div. 3, June 20, 2022) 2022 WL 2196880.)

Public Funds to Religious Schools.

Maine enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments, so long as they are “nonsectarian.” The question presented to the U.S. Supreme Court was whether this restriction violates the Free Exercise Clause of the First Amendment. Ruling the “nonsectarian” requirement violates the Free Exercise Clause of the First Amendment, the nation’s highest court stated: “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.” (Carson v. Makin (U.S., June 21, 2022) 142 S.Ct. 1987.)

Court Erred in Ordering Transport of Death Row Defendant to Search for New Evidence.

As part of his petition for habeas corpus, a man on death row in Ohio contended to a district court that a brain injury he sustained as a child rendered him unable to make rational and voluntary choices. He attached to his petition a letter from a neurologist stating that “a CT/FDG-PET scan would be a useful next step to further evaluate [him] for brain injury,” in part because previous scans revealed 20 to 30 metal fragments in his skull.” The lower court ordered the state to transport the prisoner to a hospital for medical testing because the prisoner argued that testing could reveal evidence helpful in his effort to obtain habeas corpus relief. The question before the U.S. Supreme Court was whether under the All Writs Act (28 U.S.C. § 1651(a)), the testing was “necessary or appropriate in aid of” the district court’s resolution of the prisoner’s habeas case. Reversing, the high court stated: “A transportation order that allows a prisoner to search for new evidence is not ‘necessary or appropriate in aid of’ a federal court’s adjudication of a habeas corpus action, 28 U. S. C. §1651(a), when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief. Because the District Court entered such an order despite Twyford’s failure to make the required showing, the judgment of the Court of Appeals affirming that order is reversed and the case is remanded for further proceedings consistent with this opinion.” (Shoop v. Twyford (U.S., June 21, 2022) 142 S.Ct. 2037.)

Washington Law Falls Outside the Scope of Congress’ Waiver of Supremacy Clause Immunity.

The Constitution’s Supremacy Clause generally immunizes the federal government from state laws that directly regulate or discriminate against it. Congress, however, can authorize such laws by waiving this constitutional immunity. Congress enacted a statute that waives the federal government’s constitutional immunity insofar as a “state authority charged with enforcing . . . the state workers’ compensation laws . . . appl[ies] the laws” to land or projects “belonging to the [Federal] Government, in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.” (40 U.S.C. § 3172(a).) The question before the U.S. Supreme Court was whether a provision of Washington state’s workers’ compensation law falls within the scope of this congressional waiver. The state law, by its terms, applies only to federal workers who work at one federal facility in Washington. The law makes it easier for these workers to obtain workers’ compensation, thus raising workers’ compensation costs for the federal government. Concluding Washington’s law is unconstitutional, the Supreme Court stated: “We conclude that the state law discriminates against the Federal Government and falls outside the scope of Congress’ waiver. We therefore hold that the law is unconstitutional under the Supremacy Clause.” (United States v. Washington (U.S., June 21, 2022) 142 S.Ct. 1976.)

Group Health Plan Does Not Violate the Medicare Secondary Payor Statute.

The question before the U.S. Supreme Court was whether a group health plan that provides limited benefits for outpatient dialysis—but does so uniformly for all plan participants—violates the Medicare Secondary Payer statute. The Supreme Court held that it does not, stating: “Because the Marietta Plan’s terms as relevant here apply uniformly to all covered individuals, the Plan does not ‘differentiate in the benefits it provides’ to individuals with end-stage renal disease or ‘take into account’ whether an individual is entitled to or eligible for Medicare.” (Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc. (U.S., June 21, 2022) 142 S.Ct. 1968.)

Meal/Rest Break Regulation Prospective Only

In a December 28, 2018, order, the Federal Motor Carrier Safety Administration (FMCSA) concluded that California’s meal and rest break rules were preempted under the Motor Carrier Safety Act of 1984 (49 U.S.C. § 31101 et seq.). Petitioners contended that this decision did not bar meal and rest break claims arising from conduct that predated the order. Granting a writ of mandate, the Court of Appeal stated: “In light of the FMCSA’s authority to determine and communicate what it is preempting, its use of language suggesting prospective application only, and its failure to expressly extend its decision to pending claims, we conclude the Preemption Decision does not apply to bar claims arising from conduct that occurred prior to the decision, i.e., before December 28, 2018.” (Garcia v. Superior Court (Cal. App. 2nd Dist., Div. 5, June 21, 2022) 2022 WL 2205608.)

Vexatious Litigant’s Appeal from Order Denying a Request to File New Litigation.

An order denying a vexatious litigant’s request to file new litigation is not among the appealable orders listed in CCP § 904.1. And in such a matter there is no final judgment as no new litigation is allowed or filed. Dismissing a vexatious litigant’s appeal, the Court of Appeal stated: “In sum, we conclude a trial court order denying a vexatious litigant’s request to file new litigation under section 391.7 is not appealable.” (In re Marriage of Deal (Cal. App. 1st Dist., Div. 3, June 21, 2022) 2022 WL 2205515.)

Previously we reported: Plaintiff May Bring Civil Rights Action After Prosecutor Introduced His Un-Mirandized Confession.

Plaintiff, a native of Cameroon, transported patients to the MRI section of a hospital. When a patient accused plaintiff of sexual assault, the police were called. A deputy sheriff took plaintiff into a room. According to plaintiff, he refused to confess after 35 to 40 minutes of questioning. The deputy then falsely said that the assault had been captured on video so plaintiff might as well admit to it, but plaintiff still did not confess and asked for a lawyer. When the deputy ignored his request, plaintiff tried to leave the room. At this point, the deputy stepped on his toes, put his hand on his gun, called plaintiff the N-word, and said, “I’m about to put your black ass where it belongs, about to hand you over to deportation services, and you and your entire family will be rounded up and sent back to the jungle . . . . Trust me, I have the power to do it.” Plaintiff then confessed. According to the deputy, when he arrived, he asked plaintiff what had happened with the patient, and plaintiff said, “I made a mistake.” After they entered the MRI reading room, the deputy handed plaintiff a sheet of paper and said, “Can you write what happened while I get my sergeant and we can ask you a couple of questions[?]” The deputy claimed that plaintiff then wrote the confession without further prompting. During the criminal trial, the prosecution introduced plaintiff’s written confession as evidence of his guilt. The jury returned a verdict of not guilty. After his acquittal, plaintiff filed this action under 42 U.S.C. § 1983 seeking damages for alleged violations of his constitutional rights, contending that his right against self-incrimination was violated. The first jury found in favor of the deputy, but the district court ordered a new trial based on instructional error. The second jury also found in favor of the deputy. On appeal, plaintiff argued that the second jury was also erroneously instructed. Reversing and remanding for a third trial, the Ninth Circuit explained that “the jury must be properly instructed that the introduction of a defendant’s un-Mirandized statement at his criminal trial during the prosecution’s case in chief is alone sufficient to establish a Fifth Amendment violation and give rise to a § 1983 claim for damages.” (Tekoh v. County of Los Angeles (9th Cir., Jan. 15, 2021) 985 F.3d 713.)

The latest:

The U.S. Supreme Court held: “In sum, a violation of Miranda does not necessarily constitute a violation of the Constitution, and therefore such a violation does not constitute ‘the deprivation of [a] right . . . secured by the Constitution. . . .’ This conclusion does not necessarily dictate reversal because a §1983 claim may also be based on ‘the deprivation of any rights, privileges, or immunities secured by the . . . laws. . . .’ Because a violation of Miranda is not itself a violation of the Fifth Amendment, and because we see no justification for expanding Miranda to confer a right to sue under §1983, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.” (Vega v. Tekoh (U.S., June 23, 2022) 2022 WL 2251304.)

Lethal Injection vs. Death by Firing Squad.

A death row inmate brought suit under 43 U.S.C. § 1983 to enjoin Georgia from using lethal injection to carry out his death sentence. Lethal injection is the only method of execution Georgia law now authorizes. The inmate alleged that applying that method to him would create a substantial risk of severe pain because his veins are “severely compromised and unsuitable for sustained intravenous access.” He contended they are likely to “blow” during the execution, “leading to the leakage of the lethal injection drug into the surrounding tissue” and thereby causing “intense pain and burning.” On top of that, the inmate asserted, his longtime use of a prescription drug for back pain creates a risk that the sedative used in the State’s lethal injection protocol would fail to “render him unconscious and insensate.” He proposed, as a “readily available alternative” method of execution, “death by firing squad.” The Eleventh Circuit rejected the inmate’s claim, finding he should have brought his claim in a petition for habeas corpus. The U.S. Supreme Court held that 43 U.S.C. § 1983 was a good vehicle to bring such a claim, although it cautioned courts not to permit this vehicle to be used for purposes of delay. The high court remanded for the lower court to consider the inmate’s contentions. (Nance v. Ward (U.S., June 23, 2022) 2022 WL 2251307.)

Photo ID Law.

In November 2018, the people of North Carolina amended the state constitution to provide that “[v]oters offering to vote in person shall present photographic identification [(photo ID)].” The National Association for the Advancement of Colored People (NAACP) alleged the photo ID law offends the federal Constitution. The state elections board was represented by the state attorney general, a former senator who voted against an earlier version of the photo ID law, and who filed a declaration in this action in support of the NAACP’s position. The speaker of the state House of Representatives and president pro tem of the state Senate moved to intervene. The district court denied their motion to intervene. The U.S. Supreme Court held that the legislative leaders had a right to intervene. (Berger v. North Carolina State Conference of the NAACP (U.S., June 23, 2022) 2022 WL 2251306.)

Public Employees Want Their Union Dues Back.

Several years ago, the U.S. Supreme Court issued Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018) 138 S.Ct. 2448. In light of Janus, several public-sector employees filed a class action lawsuit under 42 U.S.C. § 1983 seeking to retroactively recover any fees taken from their salaries by a public agency for union dues. After Janus, the union stopped collecting mandatory agency fees from nonconsenting public employees. But here, the employees wanted a refund for the fees that were previously taken. The employees sought to hold the county jointly and severally liable with the union for compelling them to pay the pre-Janus agency fees taken in violation of their First Amendment rights. The union moved to dismiss the action, claiming that it was entitled to a good faith defense against § 1983 liability because its actions were expressly authorized at the time. The county joined the union’s motion to dismiss. The district court dismissed the action against both parties, holding that their “good faith” reliance on pre-Janus law meant that they need not return the agency fees. The Ninth Circuit followed Danielson v. Inslee (9th Cir. 2019) 945 F.3d 1096, 1097, stating: “As they must, the Employees concede that Danielson resolves their claim against the Union. So, all that’s left for us to decide is whether the County is also entitled to the good faith affirmative defense that we addressed in Danielson. We review this question de novo. [Citation.] Based on binding precedent, we affirm.” (Allen v. Santa Clara County (9th Cir., June 23, 2022).)


The issue before the U.S. Supreme Court was whether New York’s gun licensing regime respected the constitutional right to carry handguns publicly for self-defense. The court noted that in 43 states, the government issues licenses to carry based on objective criteria. But in six states, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need. The high court held: “Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.” (New York State Rifle & Pistol Association, Inc. v. Bruen (U.S., June 23, 2022) 2022 WL 2251305.)


We hold that Roe [v. Wade] and [Planned Parenthood v.] Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’” (Dobbs v. Jackson Women’s Health Organization (U.S., June 24, 2022) 2022 WL 2276808.)

Allegations Police Planted Evidence.

In 1997, after four trials and two hung juries, plaintiff was convicted of the first-degree murder of his wife, Pamela. In 2016, the California Supreme Court vacated plaintiff’s conviction, finding that it was based on “false evidence” as characterized in subsequently enacted legislation defining the term (Penal Code, § 1473, subd.,(e)(1)), and plaintiff has since been exonerated of Pamela’s murder. He brought suit against the county and individuals under 42 U.S.C. § 1983. The district court granted summary judgment for defendants. Reversing and remanding, the Ninth Circuit found plaintiff raised a triable issue of fact as to whether some fibers taken from plaintiff’s shirt had been planted on Pamela’s fingernails. (Richards v. County of San Bernardino (9th Cir., June 24, 2022) 2022 WL 2284649.)

Case Based on Stray Electricity Tossed on Summary Judgment

Plaintiffs previously lived in a house located a few blocks from a Southern California Edison (SCE) substation. Along with 98 other nearby residents, they alleged that electricity from the substation caused them to experience shocks at various places on their property.  They sought recovery primarily for the emotional distress they suffered as a result. The trial court selected four households from the consolidated cases as bellwether plaintiffs. After the close of fact discovery, the parties exchanged expert reports and conducted expert depositions. The parties’ arguments on appeal focused on two of these experts: SCE’s stray voltage expert John Loud, and plaintiffs’ electrical expert Jeffrey Drummond. Loud opined that the measurements at plaintiff’s location were consistent with normal and ubiquitous stray voltage. Drummond testified in his deposition that at least some of the shocks described in the testimony of the bellwether plaintiffs were caused by stray voltage, but he did not say the stray voltage came from the SCE substation. The trial court granted summary judgment for SCE. Affirming, the Court of Appeal stated: “We conclude that, under the applicable substantial factor causation standard, the evidence presented on summary judgment established the [plaintiffs] could not prove causation in fact. We further conclude that the court correctly rejected res ipsa loquitor as a means of establishing causation in this case.” (Barber v. Southern California Edison Company (Cal. App. 2nd Dist., Div. 1, June 24, 2022) 2022 WL 2286636.)

Motion to Recuse a District Attorney in a Civil Action.

In a civil case brought by a district attorney, defendants brought a motion to recuse and disqualify the entire district attorney’s office. The trial court denied the motion. Affirming, the Court of Appeal held that a motion seeking to disqualify a district attorney from pursuing civil claims against a party under the unfair competition law must be decided under Penal Code § 1424, subdivision (a). It further held that an order denying a motion to recuse under § 1424, subdivision (a) is an appealable order because it constitutes an order refusing to grant an injunction within the meaning of Code of Civil Procedure section 904.1, subdivision (a)(6). (People v. AWI Builders, Inc. (Cal. App. 2nd Dist., Div. 3, June 24, 2022) 2022 WL 2236861.)

Not an Indispensable Party.

John Doe filed a petition for writ of mandate against the Regents of the University of California, seeking to set aside the University’s decision to discipline John for sexually assaulting Jane Roe. The trial court granted the petition, finding John was not afforded procedural due process during the University’s investigation of Jane’s complaint. Jane, who was not a party in John’s writ case, moved to vacate the mandate order on the ground that the order was void because she did not receive notice of, and an opportunity to participate in, the writ proceeding. The trial court denied Jane’s motion. Affirming, the Court of Appeal stated: “We acknowledge that Jane’s interests were affected by the mandate proceeding, such that she may have been a real party in interest or a necessary party, but she has not established that she was an indispensable party. Nor has she established that the absence of even an indispensable party is grounds to void a judgment.” (Doe v. Regents of the University of California (Cal. App. 1st Dist., Div. 3, June 24, 2022) 2022 WL 2286393.)

Previously we reported: Kneeling & Praying Not Permitted.

A high school football coach appealed to the Ninth Circuit after a district court denied his request for a preliminary injunction that would have required the high school to allow him to kneel and pray for about 30 seconds for thanksgiving, praying for player safety, sportsmanship and spirited competition on the fifty-yard line in view of the students and parents immediately after school football games. When the coach first started at the high school, he prayed by himself. Several games into his first season, however, a group of players asked him whether they could join him. “This is a free country,” the coach replied, “You can do what you want.” Hearing that response, the students elected to join him. Over time, the group grew to include the majority of the team. Sometimes the players even invited the opposing team to join. Eventually, the coach’s religious practice evolved to something more than his original prayer. He began giving short motivational speeches at midfield after the games. Students, coaches, and other attendees from both teams were invited to participate. During the speeches, the participants kneeled around the coach, who raised a helmet from each team and delivered a message containing religious content. The coach subsequently acknowledged that these motivational speeches likely constituted prayers. At some point, the coach was placed on administrative leave for violating the policy of the school district which states: “[s]chool staff shall neither encourage nor discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity.” The Ninth Circuit found the coach spoke as a public employee, and not as a private citizen, when he prayed on the fifty-yard line. Therefore, the appeals court held, petitioner cannot show the likelihood of success of the merits of his First Amendment retaliation claim. (Kennedy v. Bremerton School District (9th Cir., 2017) 869 F.3d 813.)

The latest:

Reversing, the U.S. Supreme Court stated: “Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.” (Kennedy v. Bremerton School District, (U.S., June 27, 2022) 2022 WL 2295034.)

Culpable Mental State.

In each of two consolidated cases, a doctor was convicted under 21 U.S.C. § 841 for dispensing controlled substances not “as authorized.” The question before the U.S. Supreme Court concerned the state of mind that the government must prove to convict doctors of violating the statute. The nation’s highest court stated: “We hold that the statute’s ‘knowingly or intentionally’ mens rea applies to authorization. After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so.” (Ruan v. United States (U.S., June 27, 2022) 2022 WL 2295024.)

No Qualified Immunity for Police Employee.

Plaintiff alleged an employee of the Kauai County Police Department assisted the non-custodial father of her daughter, who works for the Kauai County Fire Department, in obtaining a temporary restraining order that prevented plaintiff, the sole custodial parent, from having contact with her daughter. She further alleged the police employee conspired with the father and other state officials to extract her daughter from her school and place her in her father’s custody on a different island. Mother and daughter had no contact for 21 days. The district court denied defendant’s motion to dismiss. Affirming, the Ninth Circuit stated: “Whether these shocking allegations are true is for another day. The question here is whether qualified immunity requires dismissal of [plaintiff’s] denial-of-familial association claim brought against [defendant] under 42 U.S.C. § 1983. Because we conclude that [plaintiff] and her daughter’s constitutional right to familial association was clearly established such that a reasonable official in [defendant’s] shoes would have understood that her alleged actions were a constitutional violation, we affirm the district court’s denial of [defendant’s] motion to dismiss. [Plaintiff] and her daughter deserve nothing less than the opportunity to have their claims heard.” (David v. Kaulukukui (9th Cir., June 27, 2022) 2022 WL 2299036.)

Motion to Quash Granted.

Plaintiff, a California resident, alleged he was severely injured when a lithium battery he bought at vape shop in San Diego, California, suddenly exploded in his pants pocket. Defendant, a South Korean company, sold batteries to manufacturers. Defendant did not design, manufacture, distribute, advertise, or sell the batteries for sale to or use by individual consumers as standalone, replaceable batteries. It had no connection to the vape shop or the vape distributor responsible for selling the defective battery that injured plaintiff. The trial court denied defendant’s motion to quash service of summons. Reversing, the Court of Appeal stated that defendant’s “activities in California consisted of sales of 18650 batteries to three California companies in the electric vehicle industry for use in electric vehicles. The question presented is whether Lawhon’s personal injury claims arise out of or relate to those sales. We conclude they do not. Thus, the exercise of jurisdiction over LG Chem in this California lawsuit is not consistent with due process.” (LG Chem, Ltd. v. Superior Court of San Diego County (Cal. App. 4th Dist., Div. 1, June 27, 2022) 2022 WL 2301004.)

Motion to Disqualify Counsel Denied.

The trial court denied defendant’s motion to disqualify plaintiff’s counsel. The motion was based on California Rules of Professional Conduct, rule 1.9(a): “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the 24 interests of the former client unless the former client gives informed written consent.” Affirming denial of the motion, the Court of Appeal found there was no prior attorney-client relationship, no direct professional relationship with the client in which the attorneys personally provided legal advice or services, and no substantial relationship with the client. (Victaulic Company v. American Home Assurance Company (Cal. App. 1st Dist., Div. 2, June 28, 2022) 2022 WL 2313936.)

Creative Car Service Is NOT a Rental Car Company

Turo Inc. operates an online platform that allows car owners to rent their cars to other Turo users. Unlike companies such as Enterprise or Hertz, Turo does not own, lease, or rent a fleet of cars for customers to rent. The People, acting by and through the City Attorney of San Francisco, sued Turo alleging that Turo engaged in unlawful and unfair business practices by operating a rental car business at San Francisco International Airport (SFO) without a valid permit. Turo cross-complained against the City and County of San Francisco, which owns and operates SFO, seeking a declaratory judgment that it is not a rental car company under California law. The issue before the Court of Appeal was whether Turo is “in the business of renting vehicles to the public.” If it is, then the parties agreed that Turo is a “rental car company” for the purposes of Government Code § 50474.1, and accordingly SFO was authorized to require Turo to collect a fee from its customers on behalf of the airport. The trial court granted summary adjudication for the People and the city on Turo’s first cause of action for declaratory relief that it is not a rental car company under California law. Granting Turo’s petition for writ of mandate, the appeals court stated: “Because we conclude that Turo is not a rental car company as that term is defined in California statutes, we grant Turo’s petition for writ of mandate.” (Turo Inc. v. Superior Court of City and County of San Francisco (Cal. App. 1st Dist., Div. 2, June 28, 2022) 2022 WL 2314801.)

You’re Fired . . . for Serving Your Country in the Military.

The U.S. Supreme Court noted that since before the United States’ entry into World War II, Congress has sought to smooth military volunteers’ reentry into civilian life by recognizing veterans’ “right to return to civilian employment without adverse effect on . . . career progress” in the federal work force and private employment. The Vietnam War prompted Congress to extend these protections to employment by states. Amidst political opposition to the war, “some State and local jurisdictions ha[d] demonstrated a reluctance, and even an unwillingness, to reemploy” returning servicemembers. So, Congress authorized private damages suits against States to ensure that “veterans who [had] previously held jobs as school teachers, policemen, firemen, and other State, county, and city employees” would not be denied their old jobs as reprisal for their service. The statute at issue, the Uniformed Services Employment and Reemployment Rights Act of 1994 (38 U.S.C. § 4301, et seq., USERRA), embodies these protections today. Plaintiff here enlisted in the Army Reserves in 1989. In 2007, he was called to active duty and deployed to Iraq. While serving, he was exposed to toxic burn pits. After he was honorably discharged, he returned home with constrictive bronchitis, which made him unable to work at his old job as a state trooper. Plaintiff asked his former employer, respondent Texas Department of Public Safety, to accommodate his condition by reemploying him in a different role. Texas refused to do so. Plaintiff brought this action alleging Texas violated USERRA’s mandate that state employers rehire returning service members, and use “reasonable efforts” to accommodate any service-related disability. The trial court denied Texas’s motion to dismiss under the doctrine of sovereign immunity, and a Texas appellate court reversed. Reversing the judgment of the Texas appellate court, the nation’s highest court stated: “Text, history, and precedent show that the States, in coming together to form a Union, agreed to sacrifice their sovereign immunity for the good of the common defense.” (Torres v. Texas Department of Public Safety (U.S., June 29, 2022) 2022 WL 2334306.)

Jurisdiction to Prosecute Crimes in Indian Country.

This case presented a jurisdictional question about the prosecution of crimes committed by non-Indians against Indians in Indian country. The issue was whether under current federal law, the federal government has exclusive jurisdiction to prosecute those crimes, or whether the federal government and the state have concurrent jurisdiction to prosecute those crimes. The U.S. Supreme Court held: “We conclude that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.” (Oklahoma v. Castro-Huerta (U.S., June 29, 2022) 2022 WL 2334307.)

First to Settle.

The California Private Attorneys General Act (Lab. Code, §§ 2698–2699.5; PAGA), allows aggrieved employees to recover civil penalties for Labor Code violations on behalf of themselves, the state, or other current or former employees. After mediation, Callahan and Brookdale, agreed to a settlement. The plaintiff in another PAGA case against Brookdale, Neverson, filed a motion to intervene in Callahan’s action. The district court denied Neverson’s motion and approved the PAGA settlement in Callahan’s case in relevant part. Neverson appealed both the denial of her motion to intervene and the district court’s order approving the Callahan settlement. The two cases were consolidated on appeal. The Ninth Circuit held: “Because Neverson lack[ed] the right to appeal the PAGA settlement, we dismiss her appeal of the settlement approval and do not consider whether the district court abused its discretion in approving the settlement.” (Callahan v. Brookdale Senior Living Communities, Inc. (9th Cir., June 29, 2022) 2022 WL 2336656.)

Lawyer’s Agreement to Arbitrate Bound His Client to Arbitrate Her Case.

Plaintiff contends defendant used her name and likeness in its yearbook database without her consent. She hired a lawyer to represent her. The lawyer created a account to search for plaintiff’s likeness. In creating his own account, the lawyer agreed to defendant’s terms and conditions, which included an arbitration agreement. The district court denied defendant’s motion to compel arbitration. Noting that the lawyer could have opted out of arbitration and that there was an agency relationship between plaintiff and her lawyer, the Ninth Circuit reversed. (Knapke v. PeopleConnect, Inc. (9th Cir., June 29, 2022) 2022 WL 2336657.)

High School Student Was Stabbed on Campus; Summary Judgment for School District Reversed.

Plaintiff was a student on a high school track team, which usually practiced after school until 5:30 p.m. One day practice ended early, so plaintiff and her friend walked to Starbucks and returned about 45 minutes later. On the way back to the open campus, they encountered a stranger who plaintiff thought was “suspicious.” Another student identified him as a former student who was “kind of weird.” After she retrieved her books from the girls’ locker room, plaintiff and a friend walked to the school parking lot. On the way, she was stabbed by the stranger, and suffered serious injuries. Plaintiff sued the school district, and the trial court granted summary judgment for the district, finding the district owned no duty of care because at the time of the stabbing, she was no longer on campus during school hours or for a school-related activity. Reversing, the Court of Appeal stated: “Schools have a ‘special relationship’ with their students; therefore, schools are required to ‘use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally.’. . . At the time of the stabbing, [plaintiff] was on campus to retrieve her books from an open locker room after her track practice and another sports team was still practicing nearby.  [Plaintiff’s] brief departure from school is a red herring.”  (Achay v. Huntington Beach Union High School District (Cal. App. 4th Dist., Div. 3, June 29, 2022) 2022 WL 2339171.)

Airline Enjoys Immunity After Treating Passenger with a Medical Emergency as a Security Risk.

An airline passenger tragically suffered a massive pulmonary embolism while locked inside an airplane lavatory during the final stages of a flight from Oakland to Orange County. The flight crew perceived him to be a security threat. As a result, he did not receive medical care until after the flight had landed and the other passengers had disembarked. By then, he had gone into cardiac arrest. Although he was resuscitated, he later died in a hospital. His family sued defendant Southwest Airlines alleging that the flight crew’s failure to provide medical assistance caused his death. The trial court entered judgment for Southwest. On appeal, plaintiffs asserted that the trial court erred in ruling that Southwest was immune from liability under 49 U.S.C. § 44941 of the Aviation and Transportation Security Act. Affirming, the Court of Appeal stated: “We conclude that the trial court properly applied section 44941 immunity.” (Ilczyszyn v. Southwest Airlines Co. (Cal. App. 1st Dist., Div. 1, June 29, 2022) 2022 WL 2341061.)

Sheriff Doesn’t Want a Report About a Harassment Complaint Against Him Released to a Newspaper.

Following a harassment complaint against a sheriff, an independent investigator prepared a report. A local newspaper requested copies of the complaint and report pursuant to the California Public Records Act (Gov. Code, § 6250 et seq.; CPRA). The sheriff’s request for a preliminary injunction barring the report’s release was denied by the trial court. On appeal, the sheriff contended the report was confidential as a police personnel record. He further contended the county should be estopped from releasing it because the county had promised to abide by the Public Safety Officers Procedural Bill of Rights (Gov. Code, § 3300 et seq.; POBRA), and it was therefore bound to keep the results of the investigation confidential. With regard to the sheriff’s contention the report is a personnel record, the Court of Appeal held that the sheriff had the burden of demonstrating the county is his employer, but did not meet that burden. The appeals court said: “The county sheriff is a public official elected by Sonoma County voters, and as such, is ultimately responsible to them—not to the Board of Supervisors or anyone else in county government.” The appeals court also rejected the Sheriff’s POBRA argument, stating: “Because nothing in the POBRA statutory scheme explicitly grants or mentions confidentiality from CPRA requests, there was no misrepresentation or concealment of any material facts here.” (Essick v. County of Sonoma (Cal. App. 1st Dist., Div. 4, June 29, 2022) 2022 WL 2339453.)

Supreme Court Holds EPA Went too Far in Capping Carbon Dioxide Emissions Without a Mandate from Congress.

The Clean Air Act authorizes the Environmental Protection Agency (EPA) to regulate power plants by setting a “standard of performance” for their emission of certain pollutants into the air. (42 U.S.C. §7411(a)(1).) In 2015, the EPA issued a new rule concluding that the “best system of emission reduction” for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources. The question before the U.S. Supreme Court was whether this broader conception of the EPA’s authority was within the power granted to it by the Clean Air Act. The nation’s highest court held: “Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day.’ [Citation.] But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme . . . . A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” (West Virginia v. Environmental Protection Agency (U.S., June 30, 2022) 2022 WL 2347278.)

Migrant Protection Protocols.

In January 2019, the Department of Homeland Security—under the administration of President Trump—established the Migrant Protection Protocols (MPP). That program provided for the return to Mexico of non-Mexican aliens who had been detained attempting to enter the U.S. illegally from Mexico. On Inauguration Day 2021, the new administration of President Biden announced that the program would be suspended the next day, and later that year sought to terminate it. While the issue pended in the federal courts, the government took new action to terminate the policy with a more detailed explanation. The questions presented to the U.S. Supreme Court were whether the government’s rescission of the MPP violated the Immigration and Nationality Act (8 U.S.C. § 1225(b)(2)(C); INA), and whether the government’s second termination of the policy was a valid final agency action. The high court held: “[T]he Government’s rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda did constitute final agency action.” (Biden v. Texas (U.S., June 30, 2022) 2022 WL 2347211.)

Claim Preclusion and Privity.

A staffing agency arranged for plaintiff, a nurse, to work at defendant hospital. The nurse sued the staffing agency for violating the Labor Code and the Unfair Competition Law. The parties settled and the court entered judgment upon the settlement. The hospital was not a party to that initial lawsuit and the settlement did not name the hospital as a released party. The nurse then sued the hospital based on the same alleged violations. The hospital argued that, because of the first judgment, claim preclusion foreclosed the nurse’s second suit. The Court of Appeal disagreed, criticizing the reasoning of a published opinion that found claim preclusion on similar facts. (Grande v. Eisenhower Medical Center (2020) 44 Cal.App.5th 1147, criticizing Castillo v. Glenair, Inc. (2018) 23 Cal.App.5th 252.) The California Supreme Court granted review to resolve this tension in the case law. The court identified the main issue as privity, noting that judgments bind not only parties but those persons in privity with the parties. The high court further noted that in this case, the hospital, a nonparty in the first action, argued that it was in privity with the staffing agency, a party in the previously settled case. The California Supreme Court ruled: “There is no such privity here because of the hospital and staffing agency’s different legal interests. Nor can preclusion be based on a claimed indemnification or agency relationship between those litigants. We will thus affirm the judgment of the Court of Appeal.” (Grande v. Eisenhower Medical Center (Cal., June 30, 2022) 2022 WL 2349762.)

Evidence in Opposition to Anti-SLAPP Motion Rejected.

Plaintiff sued defendants for defamation, alleging they falsely told reporters that plaintiff had provided explicit nude photos of one of the defendants to the National Enquirer. Defendants filed an anti-SLAPP motion pursuant to Code of Civil Procedure § 425.16. To demonstrate the merits of his case, plaintiff offered his own declaration asserting that numerous reporters had informed him of defendants’ accusations against him. The trial court found the reporters’ statements recounted in plaintiff’s declaration were inadmissible hearsay, and therefore could not be considered for anti-SLAPP purposes. Because plaintiff offered no other evidence that defendants made defamatory comments about him, the court granted the anti-SLAPP motion and entered judgment for defendants. Plaintiff contended any hearsay in his declaration could be cured when the reporters testified under oath in deposition or at trial, and that his evidence of defendants’ purported defamatory statements was not hearsay because he did not offer the statements for the truth of the matter asserted. Affirming, the Court of Appeal stated: “The reporters’ statements recounted in plaintiff’s declaration, in contrast, were not made under oath or penalty of perjury, and the trial court properly declined to consider them.” “The reporters’ statements were offered for the truth of the matter asserted, namely that the reporters heard defendants make defamatory comments about plaintiff.” (Sanchez v. Bezos (Cal. App. 2nd Dist., Div. 1, June 30, 2022) 2022 WL 2352784.)

Lobbyists’ Attack on PAGA Rejected.

The trial court sustained the demurrer of the Attorney General of California without leave to amend where plaintiff, a lobbying group for small and midsized businesses in California, filed an action seeking a judicial determination that the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA), is unconstitutional under various theories and for an injunction forbidding defendant from implementing or enforcing PAGA. On appeal, plaintiff asserted a single theory: PAGA violates California’s separation of powers doctrine by allowing private citizens to seek civil penalties on the state’s behalf without the executive branch exercising sufficient prosecutorial discretion. Affirming, the Court of Appeal stated: “. . . [O]ur Supreme Court held in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 [] (Iskanian), that ‘PAGA does not violate the principle of separation of powers under the California Constitution.’ (Id. at p. 360 [].) Despite plaintiff’s allegation in its complaint that Iskanian is ‘incorrect,’ and its arguments before us that this statement is either ‘dictum’ or is limited to a different type of separation of powers challenge, Iskanian is directly on point and controlling, and we have no authority to defy its mandate. [¶] . . . PAGA is not meaningfully distinguishable from comparable qui tam statutes outside the employment context, including the California False Claims Act (Gov. Code, § 12650 et seq.) the Insurance Frauds Prevention Act (Ins. Code, § 1871 et seq.) the Safe Drinking Water and Toxic Enforcement Act of 1986, colloquially known as Proposition 65 (Health & Saf. Code[,] § 25249.5 et seq.) and many others. Plaintiff and its supporting amici fail to produce even one single case in which any of these many statutes has been held to violate California’s separation of powers doctrine. Nor do they identify any sufficiently significant distinctions between those statutes and PAGA, or any other compelling reason for us to break new ground.” (California Business & Industrial Alliance v. Becerra (Cal. App. 4th Dist., Div. 3, June 30, 2022) 2022 WL 2353367.)

Trial Court Did Not Err in Denying Motion to Intervene in PAGA Action After the Original Plaintiff Died.

In 2016, plaintiff Stephanie Hargrove initiated this action against defendants, and approximately four years later, in 2020, Hargrove died. Her attorneys requested leave to file an amended pleading to substitute movant and appellant Makiya Cornell in place of Hargrove to prosecute these claims pursuant to the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). The trial court denied the request, dismissed the action, and stated that Cornell “[wa]s free to file her own claim and her own causes of action.” On appeal, Cornell contended that she had standing to appeal the trial court’s order denying her request to substitute herself in place of Hargrove as an order effectively denying a motion to intervene. Alternatively, Cornell argued that this court could treat her appeal as a petition for writ of mandate. Assuming that Cornell had standing to appeal, she contended the trial court abused its discretion in refusing to permit her to amend Hargrove’s complaint to substitute Cornell as the representative plaintiff such that her PAGA claim related back to the original complaint. Affirming, the Court of Appeal stated: “We conclude that, strictly speaking, Cornell does not have standing to appeal the judgment; however, we treat the order denying the motion to amend as an order denying an implicit motion to intervene, and conclude the trial court did not abuse its discretion in denying the motion.” (Hargrove v. Legacy Healthcare, Inc. (Cal. App. 4th Dist., Div. 2, July 1, 2022.) 2022 WL 2390163.)

Doctors Who Treated Medi-Cal Patients Were Paid at the Medi-Cal Fee Schedule, Not at Their Reasonable and Customary Rates.

Defendant is a health care service plan subject to the Knox-Keene Health Care Service Plan Act of 1975 (Health & Saf. Code, § 1340 et seq.) It contracts with certain medical groups and providers to provide medical care at reduced costs to eligible beneficiaries of Medi-Cal or Medicaid who are enrolled with defendant. Plaintiffs are groups of doctors who provided anesthesia services to defendant’s enrollees for elective, nonemergency surgeries. Plaintiffs had no provider contract with defendant; however, they had exclusive agreements with the hospitals. Plaintiffs were paid at the Medi-Cal fee schedule rate. Plaintiffs sued defendant, and the trial court sustained defendant’s demurrer without leave to amend. On appeal, plaintiffs contended defendant was obligated to pay them the reasonable and customary value rate for their services. Affirming the judgment, the Court of Appeal stated: “The intended beneficiaries of the contract are the Medi-Cal enrollee members, not the providers.” (Allied Anesthesia Medical Group, Inc. v. Inland Empire Health Plan (Cal. App. 4th Dist., Div. 2, July 1, 2022) 2022 WL 2390162.)

Motion for Summary Judgment Granted for Health Club After Plaintiff Was Severely Injured.

Plaintiff, a member of a health club, entered the sauna and closed the door. She tripped and fell because the area was dark due to a burned-out light bulb, resulting in her right arm being severely burned on the sauna heating element. She sued the club. The club filed a motion for summary judgment, asserting: (1) that any claim for ordinary negligence was barred by a release of liability signed by plaintiff in connection with her membership; and (2) that plaintiff could not establish a claim for gross negligence because she could not establish a claim for premises liability, since the club had no actual or constructive knowledge of a dangerous condition. The trial court granted the club’s motion. Affirming, the Court of Appeal stated: “We conclude that in its motion for summary judgment, Fitness negated (1) a claim for ordinary negligence alleged in the complaint because Joshi signed a membership agreement containing a release of claims for injuries arising from accidents at the Club; (2) a claim for gross negligence; and (3) a claim for premises liability based upon evidence that it had no actual or constructive knowledge at the time of the incident that the sauna light bulb was burned out. We conclude further that Joshi did not present evidence that raised a triable issue of material fact in support of her claims.” (Joshi v. Fitness International, LLC (Cal. App. 6th Dist., July 1, 2022) 2022 WL 2390165.)

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