Litigation Update: June 2018

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
  • Managing Editor, Reuben Ginsburg
  • Editor, Jessica Riggin
“Watching birds has become part of my daily meditation,” Carol P. Christ.

A homeless man was living on the streets of Los Angeles with his 20 pet birds. The birds were kept in 12 to 14 cardboard boxes and cages, which were covered with blankets and towels. Two Los Angeles Department of Animal Control officers seized the birds without a warrant. A hearing officer found that the seizure was justified under Penal Code § 597.1, subdivision (a)(1), which requires officers to seize animals kept in public spaces without proper care and attention if the officers have a “reasonable” belief that “very prompt” action is required to protect the health and safety of the animal or others. Before a hearing was held on the seizure, a City of Los Angeles veterinarian euthanized all but two of the birds. The homeless man then sued the city and the officers for violations of the Fourth and Fourteenth Amendments, and state law tort violations. A federal trial court granted defendants’ motion for summary judgment and dismissed the case. The Fourth Amendment protects against unreasonable seizure of property, and there is no exception simply because a person is homeless. The Ninth Circuit Court of Appeals stated that “the crux of the problem here is that not all of the birds appeared to be sick, in fact eight birds appeared outwardly healthy.” The appeals court affirmed the dismissal with regard to the 12 obviously sick birds but reversed as to the others, stating: “[W]e hold that there is a genuine factual dispute about whether the healthy-looking birds posed any meaningful risk to other birds or humans at the time they were seized.” The appeals court instructed the trial court to consider whether the animal control officers are entitled to immunity for seizing the healthy-looking birds without a warrant. (Recchia v. City of L.A. Dep’t of Animal Servs. (9th Cir., May 1, 2018) 2018 U.S. App. LEXIS 11364.)

Disputed Farm Land.

Two neighboring landowners had a dispute over 10 acres of farm land. Owner #1 went into court and obtained an equitable easement. The Court of Appeal stated that for a trial court to grant an equitable easement, three factors must be present: 1) the encroacher must be innocent, meaning the encroachment must be neither willful nor negligent; 2) the court should stop the encroachment if the burdened landowner would suffer irreparable injury; and 3) the hardship to the encroacher if the encroachment is ordered removed must be greatly disproportionate to the hardship suffered if the encroachment continues. The appellate court found that Owner #1’s encroachment on Owner #2’s land was negligent as a matter of law, and reversed the recognition of an equitable easement. The court stated that an interest in land that is functionally equivalent to ownership may be acquired by adverse possession, but the elements for adverse possession were not satisfied in this instance. The appeals court directed the trial court to enter judgment in favor of owner #2. (Hansen v. Sandridge Partners (Cal. App. 5th Dist., May 1, 2018) 22 Cal.App.5th 1020.)

Enforcement of a Judgment Lien After Judgment Debtor Dies.

Code of Civil Procedure § 366.2 creates a one-year statute of limitations for bringing a cause of action against someone who has died. However, the Court of Appeal held that it does not limit the time to enforce a judgment or a judgment lien. (County Line Holdings, LLC v. McClanahan (Cal. App. 2nd Dist., Div. 6, May 2, 2018) 22 Cal.App.5th 1067.)

Delegation Clause in Arbitration Agreement.

Parties to a dispute had entered into an agreement to submit their disputes to arbitration. The arbitration provision contained a delegation clause delegating to the arbitrator the authority to rule on disputes concerning the enforceability of the arbitration provision. Once in court, the defendant moved to compel arbitration, and the trial court denied the petition. On appeal, defendant argues the arbitrator, not the court, should have decided the validity of the arbitration provision and the delegation clause. In affirming the trial court order, the Court of Appeal held the trial court had to first rule on the question of the enforceability of the delegation clause before deciding whether to order the matter into arbitration. (Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (Cal. App. 4th Dist., Div. 1, May 3, 2018) 22 Cal.App.5th 1096.)

Reasonable Accommodation . . . NOT.

During plaintiff’s one-year probationary period working for a school district, her performance was supposed to be evaluated. Eight months into her probationary period and with the school district’s consent, she went on a temporary disability leave to have surgery to replace a knuckle on a finger she injured while working for the school district. She was scheduled to return to work on, or shortly after, the anniversary of her hiring date. The district, however, terminated her while she was on the approved leave, because her performance had not been reviewed. Plaintiff sued the district under the California Fair Employment and Housing Act (Gov. Code, § 12940, subds. (m), (n)), contending it failed to make reasonable accommodation for her medical condition and failed to engage in the interactive process. At the conclusion of a court trial, the court found in plaintiff’s favor and awarded her $723,746 in damages. In affirming, the Court of Appeal noted “the accommodation can hardly be considered reasonable when it included the consequence that she would lose her job if she took the time off to undergo surgery.” (Hernandez v. Rancho Santiago Community College Dist. (Cal. App. 4th Dist., Div. 3, May 3, 2018) 22 Cal.App.5th 1187.)

There’s No “Me Too” in the Military: the Feres Doctrine Slams and Locks the Door Again.

In Feres v. United States (1950) 340 U.S. 135, the U.S. Supreme Court held that despite the Federal Tort Claims Act, the government nonetheless enjoys sovereign immunity from tort claims involving injuries to service members that were “incident to military service.” In this case, a service woman gave birth to a baby. She experienced postpartum hemorrhaging and died approximately four hours after delivery. The woman’s husband brought an action alleging medical negligence at the naval hospital, and a federal trial court dismissed the case under the Feres doctrine. In affirming, the Ninth Circuit Court of Appeal stated: “If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so.” (Daniel v. United States (9th Cir., May 7, 2018) 2018 U.S. App. LEXIS 11862.)

Previously we reported on another matter decided under the Feres Doctrine: THE FERES DOCTRINE STRIKES AGAIN.

The doctor of a pregnant servicewoman created a pregnancy profile for her, which imposed a number of restrictions on her activities such as “not carry and fire weapons, move with ‘fighting loads,’ engage in heavy lifting or physical training testing, or run/walk long distances.” Her supervisors ignored her pregnancy profile. She underwent an emergency procedure in an effort to prevent premature birth. Nonetheless, and despite her doctor specifically informing Army personnel she was “high risk” and unable to perform her normal work activities for the remainder of her pregnancy, her commanding officers continued to disregard the doctor’s instructions. Her son was born prematurely and died 30 minutes after birth. The baby’s father filed an action in federal district court asserting claims under the Federal Tort Claims Act. Pursuant to Feres v. United States (1950) 340 U.S. 135, the case was dismissed. Feres held “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” In affirming the dismissal, the Ninth Circuit stated: “We can think of no other judicially-created doctrine which has been criticized so stridently, by so many jurists, for so long. The Feres doctrine has generated pained affirmances from this circuit. Yet, unless and until Congress or the Supreme Court choose to ‘confine the unfairness and irrationality that [Feres] has bred, we are bound by controlling precedent.” (Ritchie v. United States (9th Cir., May 7, 2013) 733 F.3d 871.)

Seeking Damages for Medial Bills at Trial.

Under Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 566, an injured plaintiff with health insurance may not recover past economic damages that exceed the amount paid by the insurer for the medical services provided. On the other hand, for an uninsured plaintiff, the measure of damages is the reasonable value of the services rendered or expected to be rendered. In the current case, the plaintiff was covered by medical insurance, but chose to go outside his plan and treat with doctors and medical providers not covered by his medical plan. The Court of Appeal held: “We hold that such a plaintiff shall be considered uninsured, as opposed to insured, for the purpose of determining economic damages.” (Pebley v. Santa Clara Organics, LLC (Cal. App. 2nd Dist., Div. 6, May 8, 2018) 22 Cal.App.5th 1266.)

Date of the Union.

The trial court determined a couple’s date of union was in 2009 when they married, rather than in 2004 when they entered into a domestic partnership under New Jersey law. On appeal, R.W. contends New Jersey’s domestic partnership law is “substantially equivalent” to California’s domestic partnership law, and the court should have determined the parties’ 2004 domestic partnership was the date of their union. In affirming, the Court of Appeal stated: “[W]e conclude that in light of the limited nature of the rights and obligations that the parties obtained in entering into a domestic partnership under New Jersey law, the trial court properly determined that the parties’ 2004 New Jersey domestic partnership was not ‘substantially equivalent’ to a California domestic partnership under [Family Code] section 299.2 so as to permit its dissolution under California law. We therefore conclude that the trial court properly determined that the parties’ date of union was in 2009.” (In re the Marriage of G.C. and R.W. (Cal. App. 4th Dist., Div. 1, May 9, 2018) 23 Cal.App.5th 1.)

Taking the Deposition of the Head Honcho.

A party to the action noticed the deposition of the chief executive officer of the Contractors’ State License Board, and the trial court denied the board’s motion for a protective order. Noting that the head of a government agency is generally not subject to deposition unless the official has direct personal factual information pertaining to material issues in the action, which is not the case here, the Court of Appeal issued a peremptory writ in the first instance. (Contractors’ State License Bd. v. Superior Court (Cal. App. 1st Dist., Div. 1, May 9, 2018) 2018 Cal. App. LEXIS 424.)

Trademark Infringement & Trademark Dilution.

Defendant is the second largest footwear company in the United States, and plaintiff is the third; they are competitors. In this action, plaintiff alleges that two styles of defendant’s shoes infringe and dilute two of plaintiff’s shoe styles. A federal trial court issued a preliminary injunction prohibiting defendant from manufacturing, distributing, advertising, selling, or offering for sale its two styles of shoes that infringe upon plaintiff’s two styles of shoes. The Ninth Circuit Court of Appeals affirmed as to one shoe style but reversed as to the other. Citing Herb Reed Enterprises, LLC v. Florida Entertainment (9th Cir., 2013) 736 F.3d 1239, the appeals court found a lack of evidence to conclude there was irreparable harm regarding the other style. (Adidas America, Inc. v. Skechers USA, Inc. (9th Cir., May 10, 2018) 2018 U.S. App. LEXIS 12249.)

California Courts Possess the Inherent Power to Summarily Dismiss Any Action That Is Based Upon Frivolous Grounds.

The trial court denied with prejudice plaintiff’s applications for permanent injunctions prohibiting harassment by 31 famous persons, including Tom Hanks, the Dalai Lama, Mark Zuckerberg and Monica Lewinsky. Plaintiff alleged the famous people were reading his mind, stalking him, and tricking him. The Court of Appeal noted the trial court did not cite any legal authority, but described plaintiff’s requests as “patently frivolous.” Nonetheless, the appellate court stated that California courts have the inherent power to control their proceedings, including the “inherent power to summarily dismiss any action or appeal which … is based upon … frivolous grounds.” The orders of the trial court were affirmed. (Huang v. Hanks (Cal. App. 3rd Dist., May 10, 2018) 23 Cal.App.5th 179.)

No Elder Abuse.

A 70-year-old woman suffering from end-stage terminal pancreatic cancer died four days after she was transferred from a skilled nursing facility to a hospital. The woman had an advance health care directive stating she wanted all measures taken to prolong her life. Defendant health care providers at the hospital declined to provide the woman with certain advanced life support measures on the basis that such measures would have been ineffective and caused her to suffer further harm. After her death, her children sued the hospital and medical providers for failing to provide life-sustaining treatment, comfort, and care requested in the woman’s advance health care directive. The trial court sustained demurrers to plaintiff’s elder abuse claims and granted summary judgment against other claims. In affirming, the Court of Appeal found insufficient allegations of both physical and financial elder abuse and found the trial court properly granted summary judgment. (Alexander v. Scripps Memorial Hospital La Jolla (Cal. App. 4th Dist., Div. 1, May 11, 2018) 2018 Cal. App. LEXIS 432.)

“We forge the chains we wear in life,” Charles Dickens.

In all nonjury criminal proceedings in federal courts, U.S. Marshals—who are responsible for security—use full restraints on in-custody defendants. A defendant’s hands are closely handcuffed together, these handcuffs are connected by chain to another chain running around the defendant’s waist, and the defendant’s feet are shackled and chained together. Four criminal defendants brought this action for violation of their civil rights, citing various constitutional violations. A federal trial judge dismissed their suit. Even though the criminal court cases were over by the time the matter reached the appellate level, the Ninth Circuit Court of Appeals concluded their claims were not moot and struck down the restraint policy as violating the due process clause of the Fifth Amendment. The U.S. Supreme Court reversed, stating: “We vacate the judgment of the Court of Appeals for the Ninth Circuit and remand the case to that court with instructions to dismiss as moot.” (United States v. Sanchez-Gomez (U.S., May 14, 2018) 200 L.Ed.2d 792.)

Reasonable Expectation of Privacy.

A woman rented a car in New Jersey, signing an agreement that she would be the only driver. She walked outside and handed the keys to a man who drove off in the rental car by himself. When he was in Pennsylvania, police stopped him for a traffic violation. A search of the car revealed body armor and 49 bricks of heroin. A federal trial court denied the man’s motion to suppress evidence as the fruit of an unlawful search. The Third Circuit Court of Appeals affirmed, concluding that because he was not listed as an authorized driver on the rental agreement he lacked a reasonable expectation of privacy. In vacating the orders of the lower courts and remanding the matter, the U.S. Supreme Court stated that a driver in lawful possession or control of a rental car who is not listed on the rental agreement is not deprived of his or her otherwise reasonable expectation of privacy. The court left for remand two of the government’s arguments: that one who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event. (Byrd v. United States (U.S., May 14, 2018) 200 L.Ed.2d 805.)

When a General Contractor May Withhold Payments to a Subcontractor.

A general contractor was contractually responsible for making payments to its subcontractors upon receipt of monies from the principal/owner. The plaintiff here is one of the subcontractors, and when it submitted its bill for $1.85 million to the general contractor, the general contractor, agreeing it owed the sub $1.5 million, told the sub, “see you in court.” Shortly thereafter, the principal/owner paid monies to the general contractor it had retained, $150,000 of which should have been paid to the sub. But the general did not pay it to the sub, even after the sub demanded it. The law imposes strict deadlines on contractors who delay paying their subcontractors (Civ. Code, § 8814); however, an exception permits general contractors to withhold monies from subcontractors in circumstances where there is a dispute between the parties. In the current case, the California Supreme Court described the issue before it: “What we must decide is whether this exception allows withholding when there is any dispute between the parties, or only when there is a dispute directly relevant to the specific payment that would otherwise be due.” The Supreme Court held: “The dispute exception excuses payment only when a good faith dispute exists over a statutory or contractual precondition to that payment, such as the adequacy of the construction work for which the payment is consideration. Controversies concerning unrelated work or additional payments above the amount both sides agree is owed will not excuse delay; a direct contractor cannot withhold payment where the underlying obligation to pay those specific monies is undisputed.” (United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (Cal., May 14, 2018) 4 Cal.5th 1082.)

Doctor May Sue, Even Though He Lost in Administrative Proceedings.

A doctor who is board certified in nuclear medicine spoke to a university’s radiation safety committee about safety concerns in the brain imaging department. He also reported his concerns to a federal agency. Shortly thereafter, the doctor was placed on a paid leave of absence, and his contract was terminated. The doctor filed an internal complaint for whistleblower retaliation. The university ruled against the doctor in every step of the administrative proceedings. The doctor sued the university and others in court. The university successfully brought a motion for summary judgment, arguing the doctor failed to seek extraordinary writ relief in court challenging the administrative determination, and also arguing the doctor was barred by the doctrines of res judicata and/or collateral estoppel resulting from the administrative decisions. The Court of Appeal reversed, holding the doctor was statutorily authorized to file this civil action and seek damages and that the administrative decision has no res judicata or collateral estoppel effect on this action. (Taswell v. Regents of University of California (Cal. App. 4th Dist., Div. 3, May 14, 2018) 23 Cal.App.5th 343.)

Previously we reported: “GOOD FENCES MAKE GOOD NEIGHBORS,” Robert Frost.

After plaintiff trimmed her neighbor’s trees and got sued, she tendered the claim to her insurance company under her homeowner’s insurance policy. The insurance company denied the tender and plaintiff brought an action for breach of the insurance policy and for bad faith. The trial court granted summary judgment to the insurance company and plaintiff appealed. The appellate court affirmed, stating: “Under any view of the underlying events, the trimming of the trees was no accident. Plaintiff failed to carry her burden to show any of [her neighbor’s] claims may fall within the scope of the policy.” (Albert v. Mid-Century Ins. Co. (Cal. App. 2nd Dist., Div. 8, Apr. 28, 2015) 236 Cal.App.4th 1281.)

The latest:

This time around, the plaintiff erected and refused to remove a fence that partially blocked the only road leading to the neighbor’s undeveloped property. When she was sued, she tendered the lawsuit to several insurance companies and they declined to provide a defense. The current action involves an insurer who issued an umbrella policy. The trial court granted the insurer’s motion for summary judgment. In reversing after concluding there is potential for coverage, the Court of Appeal stated: “We agree with cases from California and other jurisdictions that ‘invasion of the right of private occupancy’ is ambiguous and may include non-physical invasions of rights in real property.” (Albert v. Truck Ins. Exchange (Cal. App. 2nd Dist., Div. 7, May 15, 2018) 23 Cal.App.5th 367.)

“People don’t trust private health insurance companies for all the right reasons,” Bernie Sanders.

When a 60-year-old man’s leg was severely injured in an automobile accident, he had insurance for accidental death and dismemberment. An exclusion in the insurance policy excluded from coverage a loss that was “caused or contributed to by physical illness or infirmity.” After the accident, the man remained in the hospital for a month and was discharged to a skilled nursing facility. But the injury failed to improve due to recurring infections and almost five months after the accident, his leg was amputated below the knee. His wound issues were complicated because he had diabetes. His insurance company denied his claim and refused to pay him for his loss. The Ninth Circuit Court of Appeals stated the man was entitled to his benefits because, in order to satisfy the exclusion, an illness or infirmity must be substantial, but the evidence of any connection between the man’s diabetes and the amputation here was “notably thin.” (Dowdy v. Metro. Life Ins. Co. (9th Cir., May 16, 2018) 2018 U.S. App. LEXIS 12648.)

Nonsignatory to Arbitration Agreement.

A motion picture company and an actor contracted to have the actor perform in a movie. A dispute involving payment arose, and the two commenced arbitration pursuant to an arbitration provision in their contract. While in arbitration, the actor moved to amend the arbitration demand to include an individual on the ground he was the alter ego of the motion picture company, even though the individual was not a party to the contract. The arbitrator granted the request, found the individual to be the alter ego of the company and found both the individual and the company liable to the actor. The superior court confirmed the arbitration award. The Court of Appeal reversed and remanded the matter for the trial court to enter new orders granting the petition to vacate as to the individual and to confirm the award only as to the company. (Benaroya v. Willis (Cal. App. 2nd Dist., Div. 4, May 17, 2018) 23 Cal.App.5th 462.)

Ambiguities in Code of Civil Procedure § 998 offers.

In an offer made pursuant to Code of Civil Procedure § 998, it was not clear whether the offer was intended to dispose of the entire action. Two sophisticated parties represented by counsel clarified the ambiguities via emails after the offer was served. Because the offer was ambiguous, the trial court granted a motion to tax costs. On appeal, the party who made the motion to tax costs cited general law and the strict construction of § 998 offers. In reversing, the Court of Appeal acknowledged that strict construction principles are logical and sound, but concluded that the later clarification resolved any ambiguity. The court stated the point of § 998 is to encourage the acceptance of fair settlement offers, and, in this case, the court said it would not “interpret section 998 to honor form over substance.” The matter was remanded to the trial court for further consideration of expert fees issues. (Prince v. Invensure Ins. Brokers, Inc. (Cal. App. 4th Dist., Div. 3, May 18, 2018) 23 Cal.App.5th 614.)

SCOTUS Declines to Invoke FAA’s Saving Clause.

The U.S. Supreme Court issued an opinion involving three cases concerning agreements between employers and employees providing for individualized arbitrations, precluding class actions. The employees argued that the class action waivers were unlawful pursuant to Section 7 of the National Labor Relations Act and thus illegal, meeting the criteria of the Federal Arbitration Act’s savings clause for nonenforcement (9 U.S.C. § 1; allowing courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract”). In rejecting the arguments of the employees, the nation’s highest court noted: “In many cases over the years, this Court has heard and rejected efforts to conjure conflicts between the Arbitration Act and other federal statutes,” and that “we have made clear that even a statute’s express provision for collective legal actions does not necessarily mean that it precludes ‘individual attempts at conciliation’ through arbitration.” (Epic Systems Corp. v. Lewis (U.S., May 21, 2018) 200 L.Ed.2d 889.)

Hospital’s Evidence Inadequate to Meet its Burden on Summary Judgment.

Plaintiff, a minor in the adolescent psychiatric unit of a hospital, sued the hospital for negligence after he was placed in the same room with another patient who had assaulted his stepfather and whose younger siblings had to be protected from him. Plaintiff alleges the other patient sodomized him. The hospital brought a motion for summary judgment supported by the declaration of a psychiatric nurse. The trial court granted the motion. In reversing, the Court of Appeal stated: “Without the benefit of knowing Hospital’s policies, protocols or procedures regarding patient safety and supervision, we may only speculate as to the standard of care and what may have been required during the observations or other supervision. And without the benefit of any facts, we cannot determine whether the standard of care was satisfied as a matter of law. It was Hospital’s burden on summary judgment to show that no factual basis exists to support appellant’s negligence theories. This burden cannot be met by presenting a declaration with no significant evidentiary value.” (Doe v. Good Samaritan Hospital(Cal. App. 5th Dist., May 4, 2018) 23 Cal.App.5th 653.)

Trial Court Erred in Granting Summary Adjudication on PAGA Claim.

Defendant hired plaintiff in 1998 and terminated her in 2014. Plaintiff sued defendant for age and disability discrimination and related claims. One of her claims, brought in a representative capacity pursuant to the Private Attorneys General Act (Lab. Code, § 2698 et seq.; PAGA) is that defendant failed to furnish plaintiff and other employees accurate itemized wage statements showing the hourly rates and number of hours worked at each hourly rate and failed to maintain copies of accurate wage statements, as required by Labor Code § 226, subdivision (a). The trial court granted defendant’s motion for summary adjudication on plaintiff’s PAGA claim based on the absence of any injury. In reversing, the Court of Appeal stated a representative PAGA claim for a violation of § 226, subdivision (a) does not require proof of injury or a knowing and intentional violation. (Raines v. Coastal Pacific Food Distributors, Inc. (Cal. App. 3rd Dist., May 22, 2018) 23 Cal.App.5th 667.)

Pregnancy Discrimination Alleged by Woman Who Never Actually Applied For a Job.

According to plaintiff’s allegations, she mistakenly left her purse open one day while she was an extern at a dental clinic, and her prenatal vitamins were visible. Her supervisor was overheard saying, “Well, if she’s pregnant I don’t want to hire her.” When plaintiff inquired whether there were open positions, she was told there were not, so she did not apply for a job. Shortly thereafter, another extern was hired. Plaintiff brought a lawsuit against the dental clinic for pregnancy discrimination under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.). The trial court granted the dental clinic’s motion for summary judgment because plaintiff never actually applied for a job at the clinic. In reversing, the Court of Appeal stated: “Even though [plaintiff] never applied for a job, she raised triable issues of material fact as to whether [defendant] Dental intentionally discriminated against her by falsely telling her that no position was available.” (Abed v. Western Dental Services, Inc. (Cal. App. 1st Dist., Div. 1, May 23, 2018) 2018 Cal. App. LEXIS 475.)

Employee May Pursue PAGA Action For Violations That Did Not Affect Him.

Plaintiff filed a representative action under the Private Attorneys General Act (Lab. Code, § 2698 et seq.; PAGA) against his employer for violation of various sections of the Labor Code. One of the violations affected him, and the other violations affected other members of the class. After the first phase of the trial, the court decided that plaintiff had no standing to pursue PAGA relief on behalf of others who were affected by Labor Code violations that did not affect plaintiff. Thereafter, the trial court granted a new trial, reasoning that plaintiff’s failure to prove he was not personally affected by some of the violations did not preclude his action under PAGA. In affirming the trial court’s order for a new trial, the Court of Appeal concluded PAGA allows an aggrieved employee affected by at least one Labor Code violation committed by an employer to pursue penalties for all of the Labor Code violations committed by that employer. (Huff v. Securitas Security Services USA, Inc. (Cal. App. 6th Dist., May 23, 2018) 2018 Cal. App. LEXIS 474.)

Accused Murderers Claim Social Media Providers Must Provide Info So They Can Defend Themselves.

Real parties were indicted by a grand jury for various crimes including murder arising out of a drive-by shooting. Each defendant served a subpoena duces tecum on social media providers, including Facebook, Instagram, and Twitter. The subpoenas seek public and private communications, including deleted posts, from the social media providers and from a prosecution witness. The social media providers moved to quash the subpoenas because the federal Stored Communications Act (18 U.S.C. § 2702; SCA) states they “shall not knowingly divulge to any person or entity the contents of” any “communication” that is stored or maintained by that provider. The criminal defendants contend they need the requested communications in order to properly prepare for trial, arguing that the SCA violates their constitutional rights under the Fifth and Sixth Amendments to the U.S. Constitution to the extent it precludes compliance with the pretrial subpoenas in this case. The trial court denied the motions to quash. The Court of Appeal issued a writ of mandate directing the trial court to quash the subpoenas. The California Supreme Court granted review. California’s highest court affirmed in part and reversed in part, concluding “the Court of Appeal was correct to the extent it found the subpoenas unenforceable under the Act with respect to communications addressed to specific persons, and other communications that were and have remained configured by the registered user to be restricted. But we conclude the court’s determination was erroneous to the extent it held section 2702 also bars disclosure by providers of communications that were configured by the registered user to be public, and that remained so configured at the time the subpoenas were issued.” (Facebook, Inc. v. Superior Court of San Francisco (Cal., May 24, 2018) 2018 Cal. LEXIS 3635.)

Standing to Request Documents Under the Freedom of Information Act.

On behalf of an environmental group, a woman made a request for documents pursuant to the Freedom of Information Act (5 U.S.C. § 552; FOIA). Almost a year later, the documents had not been turned over, so the environmental group sued a governmental agency. A federal trial court dismissed the action for lack of standing, saying the submitted form did not adequately identify the environmental group as the requester. The Ninth Circuit Court of Appeals reversed, stating: “FOIA forms should not be a ‘gotcha’ proposition requiring a lexicographer to discern who made the request. But here, the submitted form’s unambiguous reference to A Better Way, confirming correspondence, and common sense make clear that A Better Way was the requester and consequently has standing to sue.” (A Better Way for BPA v. United States DOE Bonneville Power Admin. (9th Cir., May 25, 2018) 2018 U.S. App. LEXIS 13884.)

Attorney-Client Privilege Vests in the Office of the Trustee.

The probate court ordered a former trustee to turn over communications with the trust’s former counsel to the successor trustee and the trust’s current counsel. The former trustee filed a petition for writ of mandate in the Court of Appeal. In denying the request for extraordinary relief, the appellate court stated: “The attorney-client privilege vests in the office of the trustee, not in any particular person. A provision [in the trust instrument] permitting a trustee to withhold documents from a successor trustee violates public policy and is unenforceable. Allowing a former trustee to withhold from a successor trustee communications with the trust’s former legal counsel would permit a trustee to intentionally (or with gross negligence or reckless indifference) violate duties with no check on his or her conduct.” (Morgan v. Superior Court (Cal. App. 4th Dist., Div. 3, May 29, 2018) 2018 Cal. App. LEXIS 496.)

Default Judgment Vacated.

The complaint sought damages in an amount to be proven at trial and alleged they exceeded the $25,000 jurisdictional threshold. In a default prove-up trial, the court awarded over $3 million in compensatory damages. Pursuant to Code of Civil Procedure §§ 580 and 585, the Court of Appeal vacated the default judgment because the trial court awarded damages in excess of those demanded in the complaint. (Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc. (Cal. App. 4th Dist., Div. 1, May 23, 2018) 2018 Cal. App. LEXIS 494.)

Personal Jurisdiction by to Consent.

Plaintiff filed a shareholder derivative action in California. A forum selection provision in the corporation’s certificate of incorporation designated Delaware as the forum for shareholder derivative actions. The trial court dismissed the suit based on the forum selection provision. On appeal, plaintiff argues the forum selection provision was never triggered since a condition precedent to its operation—that Delaware courts have personal jurisdiction over indispensable parties—was never triggered. Plaintiff contends there was no personal jurisdiction in Delaware at the time the action was filed. The Court of Appeal noted while one way of deciding whether there is personal jurisdiction is through a minimum contacts analysis, another way is by establishing whether there is consent—“which often occurs postfiling.” The appellate court stated: “In our view, a reasonable time for satisfaction of this condition does not end when the suit is filed.” Here, consent to Delaware’s personal jurisdiction was given less than two months after the complaint was filed, and that was found to be within a reasonable time. The Court of Appeal affirmed the dismissal. (Bushansky v. Soon-Shiong (Cal. App. 4th Dist., Div. 1, May 25, 2018) 2018 Cal. App. LEXIS 493.)

No Second Bite Claiming Reporting-Time Pay.

Defendant employer demurred to the entire complaint, arguing that all the claims were based on the same theory: that Wage Order 7-2001 of the Industrial Welfare Commission (Cal. Code Regs, tit. 8, § 11070) requires an employer in the mercantile industry to provide “reporting-time pay, a type of wage, when it asks an employee to remain available for a so-called ‘on-call’ shift, but then ultimately tells the employee that [he or] she does not need to work the shift.” A previous class action alleging various wage and hour violations against the same employer was resolved by a settlement agreement. The trial court sustained defendant’s demurrer without leave to amend. In affirming, the Court of Appeal found the release in the previously settled case is clear and unambiguous and that plaintiff is barred from pursuing this action on grounds of res judicata. (Shine v. Williams-Sonoma, Inc. (Cal. App. 2nd Dist., Div. 4, May 29, 2018) 2018 Cal. App. LEXIS 495.)

Agreement Under Islamic Law.

A couple married in 2000 and had two children. In 2012, the wife filed for dissolution of the marriage and the husband requested an annulment, asserting the wife defrauded him by pretending to accept a mahr agreement when, he alleged, she never intended to be bound by it. A mahr agreement is an agreement made at the time of a marriage based on Islamic law under which a husband agrees to pay a dowry to his wife. Generally, there is a short-term portion and a long-term portion. The short-term portion is due immediately. The long-term portion is the amount that the wife is entitled to take with her in the event of a divorce. In the mahr agreement at issue here, the short-term portion was five gold coins and the long-term portion was a copy of the Quran. The wife argued the mahr agreement is a tradition and its terms are merely symbolic, and the husband argued the mahr agreement is an enforceable contract that specifies the entirety of the property that the wife will receive in the event of a divorce. A family law court denied the husband’s request for an annulment of a marriage, and instead terminated the marriage, reserving jurisdiction for a later division of the couple’s community property. The court concluded there was no fraud on the part of the wife and that each party merely had a different interpretation of the agreement. In affirming, the Court of Appeal held that “the mere fact that wife entered into the mahr agreement does not compel the conclusion that she deceived him in entering into the marriage.” The appellate court also stated it was unnecessary to address the trial court’s additional holding that an annulment would violate Family Code § 420, subdivision (c), which states that a marriage shall not be invalidated for want of conformity to the requirements of any religious sect. (In re Summer & Robert Turfe (Cal. App. 2nd Dist., Div. 3, June 8, 2018) 2018 Cal. App. LEXIS 532.)

Egyptian Law Considered in Copyright Action.

Rapper Jay-Z released an album containing his soon-to-be hit single Big Pimpin’. The background music to the track used a sample from a 1957 arrangement by an Egyptian composer. The heir to the Egyptian composer’s copyright sued Jay-Z for copyright infringement based solely on the fact that Egyptian law recognizes an inalienable moral right of the author to object to offensive uses of a copyrighted work. After trial, a federal court granted Jay-Z’s motion for judgment as a matter of law. In affirming, the Ninth Circuit Court of Appeals held that the claimed moral rights under Egyptian law are not enforceable in U.S. federal court. (Fahmy v. Jay-Z (9th Cir., May 31, 2018) 2018 U.S. App. LEXIS 14334.)

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 moved to strike portions of the complaint seeking restitution and penalties based on conduct outside 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 [Business and Professions 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) 2018 Cal. App. LEXIS 507.)

Forgot Password

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

Personal Information

Select Section(s)

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