Litigation Update: March 2020

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

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Reuben Ginsburg
  • Editors, Dean Bochner, Glenn Danas, Julia Shear Kushner, Jessica Riggin, Kenneth Wang, and David Williams
Religious Land Use and Institutionalized Persons Act.

When a Christian church bought its first parcel of land in a Citrus-Vineyard Zone in Riverside County, zoning regulations allowed places of religious worship upon approval of a public use permit. The church obtained an appropriate permit and constructed a church. In 1999, the county enacted more restrictive zoning ordinances, removing both secular and religious places of assembly from the list of permissible uses in a Citrus-Vineyard Zone. In 2009, the church purchased a second parcel of land, allegedly unaware that the county had changed the zoning ordinance. After realizing the impact of the 1999 amendments, the church asked the county to amend its ordinance. The county tentatively approved a draft ordinance, but the draft ordinance was never adopted. In 2016, the church brought a facial challenge to the zoning ordinance based on the Religious Land Use and Institutionalized Persons Act (42 U.S.C. §§ 2000cc–2000cc-5). The district court granted summary judgment to the county. Affirming, the Ninth Circuit Court of Appeals stated that “the plain terms of the ordinance treat religious assemblies on equal terms with secular assemblies.” (Calvary Chapel Bible Fellowship v. County of Riverside (9th Cir., Feb. 4, 2020) 948 F.3d 1172.)

Ninth Circuit Requires a More Thorough Explanation of Reasons for Cutting Attorney Fees.

After settling an action brought against public officials pursuant to 42 U.S.C. § 1983, the plaintiff requested prevailing party attorney fees. The district court awarded just 10 percent of the requested fees. Remanding for a recalculation, the Ninth Circuit held that “a significant reduction requires a more thorough explanation, and we conclude that the court did not adequately justify the dramatic cut that it imposed.” (Vargas v. Howell (9th Cir., Feb. 5, 2020) 949 F.3d 1188.)

A Hunch Is Not Reasonable Suspicion.

A jury convicted a woman of transporting for sale more than four kilograms of cocaine based on evidence acquired by a U.S. Customs and Border Protection agent after a stop on Interstate 15. The woman sought to exclude the evidence, arguing the agent did not have reasonable suspicion she was engaged in criminal activity when he stopped her. The agent said he decided to stop her because (1) she was driving in a known smuggling corridor in a vehicle that had crossed the United States-Mexico border in the prior week, (2) she slowed and changed lanes after he pulled alongside her in an unmarked car, rolled down his window, and stared at her, (3) she drove approximately 50 miles per hour to stay behind him, and (4) she refused to look at him when she ultimately passed him. The trial court held—albeit with reservations—that the stop was justified, and a jury later convicted her of transporting narcotics for sale. Reversing the conviction, the Court of Appeal stated: “We conclude the agent based his decision to stop Mendoza on insufficient evidence she was engaged in criminal activity. At bottom, the agent acted on a hunch, which is improper, even though—in this case—it proved correct.” (People v. Mendoza (Cal. App. 4th Dist., Div. 2, Feb. 5, 2020) 44 Cal.App.5th 1044.)

Previously we reported:
Homeowners Association’s Construction Defect Claim Tossed.

A homeowners association filed a construction defect claim. The defendant developer alleged in arbitration that the HOA failed to comply with its own covenants, conditions and restrictions (CC&R’s), which state: “Required Vote to Make Claim. Prior to filing a claim pursuant to the ADR Provisions, the [HOA] must obtain the vote or written consent of Owners . . . who represent not less than fifty-one percent (51%) of the . . . voting power . . . .” Thereafter, the HOA held a membership meeting. Of the 93 members present, 92 voted to ratify the filing of the already-filed construction defect claim. Still in arbitration, defendant successfully moved for summary judgment; the arbitrator concluded the ratification of the already-filed claim was insufficient. In superior court, the defendant moved to confirm the arbitration award dismissing of the claim, and the trial court granted the motion. The Court of Appeal affirmed, stating the Davis-Stirling Common Interest Development Act (Civ. Code, § 4000 et seq.) provides a comprehensive framework for the governance of homeowners associations, providing numerous limits on the power of HOA boards, and a system of checks on a board’s powers, adding:  “The CC&R provision here goes a step further, requiring affirmative consent of a quorum of the members ‘prior to’ instituting such action.” (Branches Neighborhood Corporation v. CalAtlantic Group, Inc. (Cal. App. 4th Dist., Div. 3, Aug. 24, 2018) 26 Cal.App.5th 743.)

The latest:

In a very similar case, the Court of Appeal found that a CC&R requirement for members to vote before filing a claim “contravene[d] explicit legislative expressions of public policy.” It therefore “disagree[d] with Branches Neighborhood Corp. v. CalAtlantic Group, Inc. (2018) 26 Cal.App.5th 743 which holds otherwise.” (Aldea Dos Vientos v. CalAtlantic Group, Inc. (Cal. App. 2nd Dist, Div. 6, Feb. 6, 2020) 44 Cal.App.5th 1073.)

Class Certification Denied.

Defendant rents storage units to the public. Since 1983, defendant has offered the public a promotional rate of $1 for the first month’s rent. Sometimes the advertisements stated there was also an administrative fee and sometimes they did not. Plaintiffs filed a class action seeking restitution for violations of the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) and false advertising law (Bus. & Prof. Code, § 17500 et seq.). Plaintiffs defined the class as everyone who received the special promotional rate. The trial court denied the petition for class certification, finding plaintiffs had not established the matter was susceptible of common proof because different class members were exposed to different advertisements. Affirming, the Court of Appeal stated that in In re Tobacco II Cases (2009) 46 Cal.4th 298 did not abrogate “the requirements of exposure and deception that . . . must be proven when plaintiffs seek to recover restitution under the unfair competition law and false advertising law.” (Downey v. Public Storage, Inc. (Cal. App. 2nd Dist., Div. 2, Feb. 6, 2020) 44 Cal.App.5th 1103.)

Not Deceptive Advertising.

Plaintiff sued defendant because its product label accurately stated the product had “no sugar added.” Plaintiff contends this representation is reasonably likely to cause a consumer to conclude competing products do have sugar added, and this is deceptive if the competing products do not. California’s unfair competition law (Bus. & Prof. Code, § 17200 et seq.), false advertising law (Bus. & Prof. Code, § 17500 et seq.), and Consumer Legal Remedies Act (Civ. Code, § 1770 et seq.), prohibit advertisements, including product labels, with statements that are likely to deceive members of the public. The trial court sustained defendant’s demurrer without leave to amend. Affirming, the Court of Appeal stated: “We hold that such statements are not actionable as a matter of law.” (Shaeffer v. Califia Farms, LLC (Cal. App. 2nd Dist., Div. 2, Feb. 6, 2020) 44 Cal.App.5th 1125.)

The Importance of the Right Release.

A temporary staffing agency assigned plaintiff to work as a nurse at a hospital. The nurse settled her wage and hour class action against the staffing agency. About a year later, she was the named plaintiff in a wage and hour class action against the hospital. The staffing agency intervened in the class action against the hospital, and contended the second class action should be dismissed because plaintiff had settled her claims the previous year. The trial court ruled the hospital was not been a party to the first class action and was not released in that action, so it could not avail itself of the doctrine of res judicata. Denying the hospital’s request for extraordinary relief, the Court of Appeal stated: “[the hospital] and [the staffing agency] were not in privity, preventing [the hospital] from blocking [plaintiff’s] claims under the doctrine of res judicata, and [the hospital] was not a released party under the settlement agreement.” (Grande v. Eisenhower Medical Center (Cal. App. 4th Dist., Div. 2, Feb. 6, 2020) 44 Cal.App.5th 1147.)

Commercial Holdover Rent Provision Not an Unlawful Penalty.

A commercial lease set the rent to increase if the tenant stayed past a certain date. That date came and went. The commercial tenant stayed put, but failed to pay the rental increase. After a bench trial, the trial court ruled the holdover rent was an unenforceable penalty. Reversing, the Court of Appeal found a “commercial holdover provision” like this one was valid. “The trial court improperly refused to enforce the rent increase. We reverse this ruling. We also direct the trial court both to amend the judgment to include a sanctions award.” (Constellation-F, LLC v. World Trading 23, Inc. (Cal. App. 2nd Dist., Div. 8, Feb. 7, 2020) 45 Cal.App.5th 22.)

Brown Act Violations Were Not Prejudicial.

The city approved an application to build a tennis cabaña on residential property. Plaintiffs, all residents of the city, filed a petition for writ of mandate and complaint challenging the approval on the grounds that the city improperly considered the application in closed sessions in violation of the Brown Act (Gov. Code, § 54950 et seq.). The trial court ruled in favor of the city. The Court of Appeal found that the city violated the Brown Act by holding some closed-session meetings related to potential litigation, but concluded there was no prejudice. Affirming, the Court of Appeal noted: “The application was thoroughly considered at four open meetings at which the City Council considered plaintiffs’ appeal,” so there was “no reasonable argument that plaintiffs lacked a fair opportunity to present their case, [or] that the City failed to consider it fully . . . .” (Fowler v. City of Lafayette (Cal. App. 1st Dist., Div. 4, Feb. 10, 2020) 45 Cal.App.5th 68.)

School District’s Bathroom Policy Does Not Infringe Constitutional Rights.

An Oregon public school district allowed transgender students to use school bathrooms, locker rooms, and showers that match their gender identity rather than the biological sex they were assigned at birth. Plaintiffs, a group of parents of students who attended the school, opposed the district’s policy and sued, asserting violations of Title IX and various constitutional rights, including the right to privacy, free exercise of religion, and the right to direct the upbringing of one’s children. The district court dismissed the claims. Affirming, the Ninth Circuit stated: “We agree with the district court and hold that there is no Fourteenth Amendment fundamental privacy right to avoid all risk of intimate exposure to or by a transgender person . . . . We also hold that a policy that treats all students equally does not discriminate based on sex in violation of Title IX, and that the normal use of privacy facilities does not constitute actionable sexual harassment under Title IX just because a person is transgender. We hold further that the Fourteenth Amendment does not provide a fundamental parental right to determine the bathroom policies of the public schools to which parents may send their children . . . . Finally, we hold that the school district’s policy is rationally related to a legitimate state purpose, and does not infringe Plaintiffs’ First Amendment free exercise rights because it does not target religious conduct.” (Parents for Privacy v. Barr (9th Cir., Feb. 12, 2020) 949 F.3d 1210.)

Compensation for Hours Worked.

A group of employees filed a class action against their employer, arguing they were not paid minimum and overtime wages for time spent waiting for and undergoing exit searches. Industrial Welfare Commission Wage Order No. 7-2001 requires employers to pay their employees a minimum wage for all “hours worked,” which is defined as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” At the request of the Ninth Circuit, the California Supreme Court considered the following certified question: “Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees compensable as ‘hours worked’ within the meaning of Wage Order 7?” The Supreme Court answered “yes,” explaining that “[t]he exit searches burden [the] employees by preventing them from leaving the premises with their personal belongings until they undergo an exit search—a process that can take five to 20 minutes to complete—and by compelling them to take specific movements and actions during the search.” (Frlekin v. Apple, Inc. (Cal., Feb. 13, 2020) 2020 WL 727813.)

Regulation Excluding Sex Offenders from Early Parole Stricken.

After the voters passed Proposition 57 in 2016, the California Department of Corrections and Rehabilitation drafted implementing regulations restricting the categories of inmates eligible for early parole consideration. In this case, the agency challenged a trial court ruling striking down its regulation excluding from early parole consideration inmates serving sentences for current nonviolent sex offenses requiring them to register under Penal Code section 290. On appeal, the agency argued that its regulation is supported by Proposition 57’s overarching goal of protecting public safety and the requirement that its secretary certify that its regulations enhance public safety. The Court of Appeal rejected this argument and affirmed, concluding that “the regulation contravenes the plain language of the statute.” (Alliance for Constitutional Sex Offense Laws v. Department of Corrections and Rehabilitation (Cal. App. 3rd Dist., Feb. 13, 2020) 2020 WL 728130.)

Summary Judgment Affirmed in Case Involving Death on a Railroad Track.

A girl routinely walked along an unpaved path near a railroad track to get to her school bus stop. To reach the bus stop, she had to traverse a railroad crossing that was marked with signs, flashing lights, warning bells, and automatic levers that lowered as a train approached, preventing vehicular traffic from entering the crossing until after the train had passed. One morning, as the girl took her regular route, the bells, flashing lights, and automatic lever blocking vehicular traffic activated, indicating the approach of a train. The girl did not heed any of these warnings and a Union Pacific freight train fatally struck her. The trial court granted summary judgment for Union Pacific, concluding it did not own, possess, or control the crossing and therefore lacked a duty to mitigate or prevent any dangerous condition on the property, and plaintiffs could not establish that Union Pacific was negligent in operating the train. Affirming, the Court of Appeal rejected plaintiffs’ argument that there was a question of fact as to whether the conductor should have applied the brakes sooner, stating: “To have avoided the accident, [the conductor] would have had to apply the brakes more than 16 seconds before impact, long before [the girl] stepped onto the tracks.” (Soto v. Union Pacific Railroad Company (Cal. App. 2nd Dist., Div. 7, Feb. 13, 2020) 2020 WL 728373.)

No Duty to Defend a Walker Process Claim.

A business purchased a commercial liability insurance policy that covered claims for malicious prosecution. The insurer declined to defend the business in a Walker Process action. Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp. (1965) 382 U.S. 172 recognized an antitrust cause of action under the Sherman Act and Clayton Act for using a fraudulently procured patent to attempt to monopolize the market. The trial court granted summary judgment for the insurer, concluding the policy’s language could not have created an objectively reasonable expectation of coverage in an action that alleged the insured had fraudulently procured a patent and used that patent to attempt to monopolize the market. Affirming, the Court of Appeal stated: “The mere fact of prior litigation between two parties does not mean that all subsequent actions necessarily or even potentially will come within coverage for ‘malicious prosecution.’ ”  (Travelers Property Casualty Company of America v. KLA-Tencor Corporation (Cal. App. 6th Dist., Feb. 13, 2020) 2020 WL 729713.)

Circumventing Statutory Requirements by Placing New Evidence in a Motion for Reconsideration.

Plaintiff fell through a skylight at a construction site and sustained personal injuries. The trial court initially denied defendant’s motion for summary judgment. When defendant moved for reconsideration based on new evidence under Code of Civil Procedure § 1008, subdivision (a), the trial court granted reconsideration and summary judgment without giving plaintiff an opportunity to respond to the new evidence. Reversing, the Court of Appeal held, “a party unsuccessfully moving for summary judgment cannot circumvent the requirements of section 437c by subsequently moving for reconsideration under section 1008, subdivision (a).” (Torres v. Design Group Facility Solutions (Cal. App. 2nd Dist., Div. 3, Feb. 13, 2020) 2020 WL 728710.)

Failure to Meet and Confer Not Grounds to Overrule Demurrer.

Plaintiff appealed from an order sustaining a demurrer, arguing that the demurrer should have been overruled because defendant made insufficient effort under Code of Civil Procedure § 430.41 to meet and confer to try to resolve the issues by agreement. Affirming, the Court of Appeal noted the statute says that any “determination that the process was insufficient will not be grounds to overrule the demurrer.” (Dumas v. Los Angeles County Board of Supervisors (Cal. App. 2nd Dist., Div. 4, Feb. 18, 2020) 2020 WL 772606.)

Plaintiff Hit by Baseball May Amend Complaint to Allege Inadequate Netting.

Plaintiff was seriously injured when a foul ball hit her in the face as she sat in the stands. The trial court sustained defendant’s demurrer, concluding that plaintiff’s claims were barred by the doctrine of primary assumption of risk. Reversing, the Court of Appeal concluded that plaintiff may amend her complaint to allege that defendant failed to provide adequate protective netting. (Summer J. v. United States Baseball Federation (Cal. App. 2nd Dist., Div. 7, Feb. 18, 2020) 2020 WL 772525.)

Fraud Exception to Interim Adverse Judgment Rule.

To establish a malicious prosecution claim, the plaintiff must prove that the defendant lacked probable cause to bring the prior action. One way the malicious prosecution defendant can establish probable cause is to show an interim victory on the merits in the prior action—such as the denial of her opponent’s summary judgment motion. This rule is known as the “interim adverse judgment rule.” A fraud exception precludes application of the rule where the interim victory was obtained by means of fraud, perjury, or other unfair conduct. Here, a wife sued her husband based on his alleged premarital promise that the assets they acquired during their relationship would belong equally to both of them (“the Marvin action”). After she voluntarily dismissed the Marvin action, he sued her for malicious prosecution. The trial court granted her anti-SLAPP motion under the interim adverse judgment rule because the trial court in the Marvin action denied the husband’s summary judgment motion. Reversing, the Court of Appeal concluded that the husband “set forth facts that establish a prima facie application of the fraud exception” to the interim adverse judgment rule.  (Kinsella v. Kinsella (Cal. App. 4th Dist., Div. 1, Feb. 19, 2020) 2020 WL 813377.)

No Unconstitutional Taking.

Hawaii’s Land Use Commission ordered certain land to be designated agricultural use (as it had been previously designated) rather than conditional urban use. The landowner challenged the re-designation as an unconstitutional taking. A jury agreed, finding there was an unconstitutional regulatory taking of the landowner’s property. The district court denied the state’s motion for judgment as a matter of law. Reversing with directions, the Ninth Circuit concluded that the motion should have been granted “because plaintiff’s evidence did not establish a taking pursuant to either Lucas [v. South Carolina Coastal Council (1992) 505 U.S. 1003 or Penn Central [Transportation Company v. City of New York (1978) 438 U.S. 104].” (Bridge Aina Le‘a v. State of Hawaii Land Use Commission (9th Cir., Feb. 19, 2020) 2020 WL 812918.)

Making a Record in Complicated Business Case.

To collect on a money judgment, plaintiff filed a creditor’s suit against a third party, the defendant here, because it owed money to the judgment debtor. After a bench trial, the court entered a money judgment for plaintiff and against defendant. On appeal, defendant argued that plaintiff lacked the ability to sue defendant because the judgment debtor was a suspended corporation and therefore could not have collected the money owed by defendant. Defendant also argued that the creditor’s suit was untimely. Affirming, the Court of Appeal concluded that the creditor’s suit statute did not require the judgment debtor to have present capacity to collect against the third party and that the judgment debtor’s incapacity was not a bar to the judgment creditor’s recovery. On the timeliness issue, the court stated: “[Plaintiff’s] suit is timely . . . if it was filed within four years of when [the judgment debtor’s] collection action accrued. [¶] The problem for [defendant] is that the record does not establish as a matter of law when that occurred.” (Wanke, Industrial, Commercial, Residential, Inc. v. AV Builder Corp., (Cal. App. 4th Dist., Div. 1, Feb. 19, 2020) 2020 WL 813371.)

Loan from Wife’s Relatives Was a Loan to the Community.

In a marital dissolution proceeding, the family court ordered wife to transfer to husband one-half of the funds then in a brokerage account, and ordered husband to pay directly to wife his one-half share of the debt owed to wife’s relatives on their loan to the marital community. On appeal, wife argued that substantial evidence did not support the trial court’s finding that $299,936 received from her relatives remained a marital community loan, so the trial court “ ‘should not have awarded [husband] a community property interest in the proceeds of the investment of those funds.’ ” Affirming, the Court of Appeal concluded, “substantial evidence supports the trial court’s characterization of the $299,936 as a loan to the community and division of the earnings from the loan proceeds equally as community property.” The court explained, “the trial court could reasonably infer from the manner in which the parties treated the $299,936 from the time the money was received through separation that it remained a loan to the community and the investment income therefrom was community property to be divided equally between the parties.” (In re Marriage of Grimes and Mou (Cal. App. 6th Dist., Feb. 19, 2020) 2020 WL 814158.)

You Can’t Beat Up Your Husband and then Require Him to Pay Spousal Support.

A trial court denied a wife’s request for spousal support because she had suffered criminal convictions for acts of domestic violence against her husband. The trial court determined the wife had not overcome the rebuttable presumption set forth in Family Code § 4325 against an award of support to a spouse convicted of domestic violence. On appeal, the wife contended no substantial evidence supported the trial court’s factual determinations, such that the court abused its discretion in denying her support. Affirming, the Court of Appeal stated: “We thus conclude that to overcome the section 4325 presumption against awarding spousal support to a spouse convicted of domestic violence based on ‘documented evidence of a convicted spouse’s history as a victim of domestic violence,’ the convicted spouse must present written evidence in the form of a ‘writing’ within the meaning of Evidence Code section 250 proving by a preponderance his or her history as a victim of domestic violence in the relationship. . . . Here, [the wife] did not produce any ‘documented evidence’ to support her contention that Chris committed domestic violence against her, electing to present her case solely through her own testimony.” (Marriage of Brewster and Clevenger (Cal. App. 6th Dist., Feb. 19, 2020) 2020 WL 814715.)

When One Waits Until the Last Day to File a Complaint, Expect Problems.

Plaintiff alleged that defendant negligently allowed a May 21, 2007, fire to spread from defendant’s property to plaintiff’s property, harming plaintiff’s trees. On May 21, 2010, plaintiff filed suit, alleging lost use of property, as well as general damages and property damages. After the trial court sustained defendant’s demurrer with leave to amend, plaintiff amended to allege damages to property, loss of crops, and lost use. On that complaint, the trial court granted defendant’s motion for judgment on the pleadings with leave to amend. In the second amended complaint, plaintiff alleged defendant trespassed by allowing wood chips and rice hulls to spread to plaintiff’s property. On that second amended complaint, the trial court sustained defendant’s demurrer based on the statute of limitations, again granting plaintiff leave to amend. Plaintiff amended the complaint a third time on November 15, 2011, this time alleging negligent trespass, intentional trespass, and strict liability. The trial court sustained the demurrer without leave to amend, finding plaintiff’s causes of action were barred by the statute of limitations. Before the California Supreme Court, plaintiff argued that Civil Code § 3346—which provides enhanced damages to plaintiffs suffering wrongful injuries to timber, trees, or underwood—has a five-year statute of limitations. Affirming, the California Supreme Court stated: “We simply hold that section 3346 does not provide enhanced damages or a longer statute of limitations for injuries to timber, trees, or underwood from negligently spread fires.” (Scholes v. Lambirth Trucking Co. (Cal., Feb. 20, 2020) 2020 WL 827863.)

Specific Personal Jurisdiction Over Nonresident.

Plaintiff, a California resident, alleged that a Michigan man sent social media messages purporting to be from plaintiff to someone in California. The topic of the messages was a woman with whom plaintiff had a relationship. Plaintiff filed a complaint in California against unnamed Doe defendants for defamation, violation of the online impersonation law, appropriation of name or likeness, and intentional infliction of emotional distress. After discovery, plaintiff amended the complaint to name the Michigan man. The Michigan man moved to quash service of summons, and the trial court denied the motion on grounds that the exercise of specific personal jurisdiction was proper. Defendant sought extraordinary relief from the Court of Appeal. Denying the petition for writ of mandate, the Court of Appeal stated: “We conclude [the man in Michigan’s] suit-related conduct created a substantial connection between [him] and California sufficient to support the exercise of specific personal jurisdiction over him.” (Zehia v. Superior Court of San Diego County (Cal. App. 4th Dist., Div. 1, Feb. 20, 2020) 2020 WL 830847.)

Plaintiff Alleges Lack of Accommodation for His Religious Practices.

Plaintiff is a Seventh-day Adventist who trained employees for Walgreen. Because of his religion, he avoids work from sundown Friday to sundown Saturday. His immediate supervisors decided that since plaintiff’s job description required that he be available for work 24 hours a day, the company was not required to honor his Sabbath observance. The supervisor told him he needed to be more flexible in his availability for work. Plaintiff objected to the supervisor’s request on the grounds that he was already available all other times, and was terminated a few days later. Plaintiff sued defendant for failure to make a reasonable accommodation for his religious practices. A federal trial court granted the employer’s motion for summary judgment. The Eleventh Circuit Court of Appeals affirmed. Plaintiff sought a writ of certiorari in the U.S. Supreme Court. The Supreme Court denied cert. Justice Alito, joined by Justices Thomas and Gorsuch, wrote a concurrence to the denial, stating: “. . . Title VII does not require an employer to make any accommodation for an employee’s practice of religion if doing so would impose more than a de minimis burden.” (Patterson v. Walgreen Co. (U.S., Feb. 24, 2020) 140 S.Ct. 685 .)

Trust for Pension Benefits Ran Out of Money.

Employees of Catholic schools contended the Superintendent of Schools for the Archdiocese terminated a trust created for employees, thereby eliminating their pension benefits. A lower court denied the employees request for preliminary injunction. The Puerto Rico Court of Appeals affirmed, but the Puerto Rico Supreme Court reversed, finding that if the trust did not have the necessary funds to meet its obligations, the participating employers were obligated to pay. The U.S. Supreme Court vacated the judgment of the Puerto Rico Supreme Court and remanded the matter for further proceedings due to a jurisdictional defect. (Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano (U.S., Feb. 24, 2020) 140 S.Ct. 696.)

HHS Rule Not a Gag on Abortion Counseling.

Title X of the Public Health Service Act gives the Department of Health and Human Services (HHS) authority to make grants to support “voluntary family planning projects” for the purpose of offering “a broad range of acceptable and effective family planning methods and services.” (42 U.S.C. § 300(a)) Section 1008 of title X prohibits grant funds from “be[ing] used in programs where abortion is a method of family planning.” Since 1970, when title X was first enacted, HHS has provided different interpretations of this prohibition. Regulations issued in 1988, and upheld by the Supreme Court in 1991, completely prohibited the use of title X funds in projects where clients received counseling or referrals for abortion as a method of family planning. Regulations issued in 2000 were more permissive. In March 2019, HHS promulgated regulations similar to those adopted in 1988. But the 2019 rule is less restrictive in at least one important respect: a counselor providing nondirective pregnancy counseling may discuss abortion so long as the counselor neither refers for nor encourages abortion. There is no “gag” on abortion counseling. Plaintiffs, including several states and private title X grantees, brought various suits challenging the 2019 rule, and three district courts in three states entered preliminary injunctions against HHS’s enforcement of the rule. Vacating the injunctions, the Ninth Circuit stated: “In light of Supreme Court approval of the 1988 regulations and our broad deference to agencies’ interpretations of the statutes they are charged with implementing, plaintiffs’ legal challenges to the 2019 rule fail. . . the Final Rule is not arbitrary and capricious because HHS properly examined the relevant considerations and gave reasonable explanations.” (State of California v. Azar (9th Cir., Feb. 24, 2020) 2020 WL 878528.)

Statute of Limitations for Encroachments.

Neighbors have a common driveway. Years before plaintiff moved in, defendant had a fence along the driveway. The original fence was chain link, but in 2015 defendant replaced the chain link with a wooden fence in the same location. Plaintiff owns a portion of the driveway, and defendant stored some of his many vehicles on plaintiff’s portion. At trial, defendant claimed he had been doing so for years without complaint, and he contended the statute of limitations had elapsed. In April or May 2015, plaintiff asked defendant to move his cars because he wanted to repair the driveway. Plaintiff sent letters reiterating the request. In August 2015, defendant wrote back stating he was “unwilling to forfeit his right to park” on the driveway. Plaintiff commissioned a survey of his property. The survey confirmed defendant was parking his cars on plaintiff’s property. The survey also revealed part of defendant’s fence encroached on plaintiff’s property. On March 16, 2016, plaintiff filed a complaint seeking damages and injunctive relief based on theories of trespass and nuisance. Defendant cross-complained to quiet title, based on theories of adverse possession and prescriptive easement. After a bench trial, the trial court ruled in plaintiff’s favor. The Court of Appeal noted the statutes of limitations for both trespass and private nuisance are three years. The appeals court noted that each repetition of a continuing nuisance is considered a separate wrong that commences a new period to bring an action based upon the new injury. Defendant argued that his fence was not a continuing nuisance, but a permanent nuisance, as the original fence was built in 1979. Affirming, the appellate court found the trial court did not err in finding the fence was a continuing encroachment because the $5,000-6,000 cost of relocating the fence “is not sufficient to regard the fence as a permanent installation.” (Madani v. Rabinowitz (Cal. App. 2nd Dist., Div. 4, Feb. 24, 2020) 2020 WL 881412.)

Cognizable Interest in a Trust.

A grandson was originally a beneficiary of a trust created by his grandfather. The grandfather died in 1988. A 1991 decree eliminated the grandson’s interest. The grandson discovered this when the grandfather’s wife died in 2016. The probate court held the 1991 decree was binding even though the grandson received no notice because the grandson had no cognizable property interest in the trust. Reversing, the Court of Appeal stated: “We conclude, however, that Mark did have a property interest in the trust in 1991 and that the 1991 Decree adversely affected his interest. Since it is not contested that Mark’s existence and address were reasonably ascertainable at the time, due process required that Mark be given notice of the proceeding that resulted in the 1991 Decree and an opportunity to object. Because Mark was not given such notice, the 1991 Decree is void.” (Roth v. Jelley (Cal. App. 1st., Div. 2, Feb. 24, 2020) 2020 WL 882150.)

Parents from Different Countries Feuding Over Infant.

Under the Hague Convention on the Civil Aspects of International Child Abduction, a child wrongfully removed from her country of “habitual residence” ordinarily must be returned to that country. This case concerns the standard for determining a child’s “habitual residence” and the standard for reviewing that determination on appeal. Petitioner is a U. S. citizen who brought her infant daughter to the United States from Italy after her Italian husband became abusive to petitioner. Husband successfully petitioned a federal trial court for the infant’s return to Italy under the convention, and the Court of Appeals affirmed the trial court’s order. Petitioner challenged the determination that Italy was the infant’s habitual residence. Affirming the judgment of the Sixth Circuit Court of Appeals, the U.S. Supreme Court stated: “In accord with decisions of the courts of other countries party to the Convention, we hold that a child’s habitual residence depends on the totality of the circumstances specific to the case. An actual agreement between the parents is not necessary to establish an infant’s habitual residence. We further hold that a first-instance habitual residence determination is subject to deferential appellate review for clear error.” (Monasky v. Taglieri (U.S., Feb. 25, 2020) 140 S. Ct. 719.)

Previously we reported:
For Now, Mexican Family May Continue With its Action For Damages Against Border Patrol Agent.

A U.S. Border Patrol agent standing on U.S. soil shot and killed a 15-year-old Mexican national standing on Mexican soil. The victim and his friends were playing a game of running up to an embankment on the U.S. side, touched the fence, and then running away. The parents of the victim sued the agent and the U.S. government for damages pursuant to Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388. The victim’s family lost throughout the courts on the government’s motion to dismiss, and when the U.S. Supreme Court issued its decision, it stated that it was accepting the allegations in the complaint as true. The nation’s highest court stated that the Bivens question is antecedent to all others, noting: “In Bivens, this Court recognized for the first time an implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights.’” However, in Ziglar v. Abbasi (2017) 137 S.Ct. 615, the Supreme Court recently dealt with an issue concerning a group of Muslims who had been detained and deported from the USA as part of a 9/11 investigation, and who thereafter brought a Bivens action for damages against U.S. officials. In Ziglar v. Abbasi, the high court remanded the case for a lower court to consider whether there were “special factors” concerning whether Congress, and not the courts, should decide whether the claim should go forward. Similarly, in the current case involving the boy who was shot at the border, the high court remanded the matter to the lower court to consider whether there are “special factors” indicating that Congress, and not the courts, should decide how this kind of issue should be resolved. (Hernandez v. Mesa (U.S., June 26, 2017) 137 S.Ct. 2003.)

The latest:

The U.S. Supreme Court declined to extend Bivens, stating: “Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications. In addition, Congress has been notably hesitant to create claims based on allegedly tortious conduct abroad. Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field.” (Hernandez v. Mesa (U.S., Feb.  25, 2020) 140 S.Ct. 735.)

Disclosure to Plaintiff Does Not Necessarily Establish Actual Knowledge.

The Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.; ERISA) requires plaintiffs with “actual knowledge” of an alleged fiduciary breach to file suit within three years of gaining that knowledge rather than within the six-year period that would otherwise apply. In 2015, plaintiff filed a class action against the plan administrators, alleging they breached their fiduciary duties by overinvesting in alternative assets. Defendant produced evidence that plaintiff often visited the plan’s website and received disclosures about the investments in 2011. The federal district court granted summary judgment in favor of defendant administrators based on the statute of limitations. The Court of Appeals reversed based on a genuine dispute regarding plaintiff’s actual knowledge. The U.S. Supreme Court held that summary judgment was improper, stating: “The question here is whether a plaintiff necessarily has ‘actual knowledge’ of the information contained in disclosures that he receives but does not read or cannot recall reading. We hold that he does not and therefore affirm.” (Intel Corp. Investment Policy Comm. v. Sulyma (U.S., Feb. 26, 2020) 2020 WL 908881.)

YouTube’s Restricted Mode.

PragerU sued YouTube and its parent company, Google, LLC, on two federal claims—violation of the First Amendment and false advertising under the Lanham Act (15 U.S.C. § 1125(a)(1)(B)), and various state law claims. PragerU is a nonprofit educational and media organization with a mission to “provide conservative viewpoints and perspective on public issues that it believes are often overlooked.” PragerU does not confer certificates or degrees. Instead, the organization creates short videos for high school, college, and graduate school-age audiences and shares them on the Internet. PragerU has posted hundreds of its videos on a broad range of socio-political issues on YouTube. At issue here is YouTube’s Restricted Mode, which, when activated by a user, makes unavailable certain age-inappropriate content. In addition to individual users, institutions such as libraries, schools, and businesses can turn on Restricted Mode. On average, 1.5–2% of users view YouTube through Restricted Mode. YouTube tagged several dozens of PragerU’s videos as appropriate for the Restricted Mode. YouTube also “demonetized” some of PragerU’s videos, which means third parties cannot advertise on those videos. PragerU appealed the classifications through YouTube’s internal process, but some of the videos remained restricted or demonetized. The federal trial court dismissed the action. Affirming, the Ninth Circuit stated: “Despite YouTube’s ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment.” (Prager University v. Google (9th Cir., Feb. 26, 2020) 2020 WL 913661.)

Previously we reported:
Special Prosecutor Appointed in Sheriff Joe’s Case.

On August 19, 2017, the United States prosecuted Sheriff Joe Arpaio and obtained a criminal conviction of contempt. Six days later, President Donald J. Trump pardoned Arpaio. The next day, Arpaio moved to dismiss the matter with prejudice and vacate the verdict. A federal district court granted the request for dismissal of the action for criminal contempt, but denied vacatur. Arpaio appealed. The Ninth Circuit Court of Appeals ordered the United States to file a statement indicating whether it intended to enter an appearance and it responded it “does not intend to defend the district court’s order.”  Under Federal Rule of Civil Procedure 42, the Ninth Circuit ordered a special prosecutor to defend the decision of the district court. (United States v. Arpaio (9th Cir., Apr. 17, 2018) 887 F.3d 979.)

The latest:

Arpaio appealed the district court’s denial of his request to vacate the verdict. Noting that Arpaio never suffered a final judgment of conviction for criminal contempt, the Ninth Circuit affirmed. (United States v. Arpaio (9th Cir., Feb. 27, 2020) 2020 WL 946065.)

Credit Reporting Agency Reported Consumers as Terrorists.

The U.S. Department of the Treasury’s Office of Foreign Assets Control maintains a list of Specially Designated Nationals (SDN’s) who are prohibited from transacting business in the United States for national security reasons. Because merchants who transact with an SDN can face harsh fines, defendant, one of the three largest credit reporting agencies, saw a business opportunity in developing a product for its clients that matched consumers’ names to individuals on the list. A class of consumers brought suit against defendant pursuant to the Fair Credit Reporting Act (15 U.S.C. § 1681(b)), contending defendant, aware that its practice was unlawful, incorrectly placed terrorist alerts on the front page of the consumers’ credit reports and subsequently sent the consumers confusing and incomplete information about the alerts and how to get them removed. A jury awarded $60 million in damages for three willful violations of the statute. On appeal, defendant argued that only the representative plaintiff suffered a concrete and particularized injury as required for Article III standing. The Ninth Circuit held that “every member of a class certified under Rule 23 must satisfy the basic requirements of Article III standing at the final stage of a money damages suit when class members are to be awarded individual monetary damages. Therefore, the dispositive question in this case is whether each of the 8,185 class members had standing on each of the class claims. We conclude that they did. We also reject TransUnion’s arguments regarding the sufficiency of the evidence, Rule 23 certification, and statutory damages. However, we hold that the punitive damages award is excessive in violation of constitutional due process. We reduce the punitive-damages award from $6,353.08 per class member to $3,936.88 per class member, but otherwise affirm the verdict and judgment.” (Ramirez v. TransUnion (9th Cir., Feb. 27, 2020) 2020 WL 946973.)

Previously we reported:
It’s Apparently Still Permitted to Pay Women Less For the Same Work.

Plaintiff is a school district employee. She discovered her male counterparts are paid more than she is paid for doing the same work. Plaintiff sued under the federal Equal Pay Act (29 USC § 206(d), title VII of the Civil Rights Act of 1964 (42 USC § 2000e-5) and the California Fair Employment and Housing Act (Gov. Code, § 12940). The county argued it is true that the woman makes less money than her male counterparts who do the same work, but that’s because one’s salary is based upon one’s past salary, and the woman made less in the past than the men did. The federal trial court denied the county’s motion for summary judgment. The Ninth Circuit Court of Appeals reversed, citing Kouba v. Allstate Ins. Co. (9 th Cir. 1982) 691 F.2d 873. In Kouba, the Ninth Circuit held the law does not strictly prohibit the use of prior salary as a basis for current salary, despite the fact an employer is able to “manipulate its use of prior salary to underpay female employees.”  (Rizo v. Yovino (9th Cir., Apr. 27, 2017) 854 F. 3d 1161.)

Next we reported:

The Ninth Circuit Court of Appeals, sitting en banc, agreed with the district court’s denial of summary judgment and overruled Kouba v. Allstate Ins. Co. (9th Cir. 1982) 691 F.2d 873. Time may really be up when it comes to one’s gender and equal pay. (Rizo v. Yovino (9th Cir., Apr. 9, 2018) 887 F. 3d 453.)

Next we reported:

In a per curiam opinion, the U.S. Supreme Court addressed the following question: “May a federal court count the vote of a judge who dies beforethe decision is issued?” The high court stated that the Hon. Stephen Reinhardt died on March 29, 2018, but the Ninth Circuit counted his vote on cases after that date, and he was listed as the author of the en banc decision issuedon April 9, 2018, 11 days after he passed away. The U.S. Supreme Court held the Ninth Circuit Court of Appeals erred in counting Judge Reinhardt’s vote, stating: “[F]ederal judges are appointed for life, not for eternity.” (Yovino v. Rizo (U.S., Feb. 25, 2019) 139 S.Ct. 706.)

The latest:

In 1963, Congress enacted the Equal Pay Act (29 USC § 206(d); EPA)  to combat pay disparities caused by sex discrimination, but it allowed employers to justify different pay for employees of the opposite sex based on three enumerated affirmative defenses, or “any other factor other than sex.” The question at issue is whether plaintiff’s prior rate of pay is a “factor other than sex” that allows defendant to pay her less than male employees who perform the same work. Affirming the trial court’s denial of defendant’s motion for summary judgment, the Ninth Circuit stated: “The express purpose of the Act was to eradicate the practice of paying women less simply because they are women. Allowing employers to escape liability by relying on employees’ prior pay would defeat the purpose of the Act and perpetuate the very discrimination the EPA aims to eliminate. Accordingly, we hold that an employee’s prior pay cannot serve as an affirmative defense to a prima facie showing of an EPA violation.” (Rizo v. Yovino (9th Cir., Feb. 27, 2020) 2020 WL 946053.)

“To build a healthier world—one person, one community at a time,” Aetna’s mission statement.

A patient presented at plaintiff’s emergency room with “lumbar disc herniations at 2 levels,” and an emergency “two level lumbar microdiscectomy” was performed. The hospital submitted two claims to the patient’s health insurance carrier, the defendant here. Defendant granted the claims for “non-emergency” surgery” and did not provide reimbursement for emergency medical services. Defendant contended the claims form was not for emergency services, so the hospital submitted a corrected claims form, but this time defendant stated that no emergency services were performed. Plaintiff hospital sued defendant. The trial court granted defendant’s motion for summary judgment, noting, “if the doctor doesn’t submit the correct coding on a health insurance claim, he doesn’t get paid for it.” Reversing, the Court of Appeal stated: “A trier of fact could reasonably infer: 1) the ‘ER’ initials on the corrected billing form referred to the emergency room, 2) Aetna was consequently on notice that these services were emergency services, and 3) Aetna was therefore not in a position to claim emergency services were never performed.” (San Jose Neurospine v. Aetna Health of California, Inc. (Cal. App. 2nd Dist., Div. 6, Feb. 27, 2020) 2020 WL 948123.)

Migrant Protection Protocols.

The Department of Homeland Security promulgated the Migrant Protection Protocols (MPP) in January 2019 without going through notice and-comment rulemaking. The MPP provides that non-Mexican asylum seekers arriving at our southern border be returned to Mexico for the duration of their immigration proceedings, rather than either being detained for expedited or regular removal proceedings or issued notices to appear for regular removal proceedings. The MPP does not apply to certain groups, including unaccompanied alien children, aliens processed for expedited removal, aliens with known physical or mental health issues, returning legal permanent residents seeking admission, and aliens with an advance parole document or in parole status. Plaintiffs presented evidence in the federal district court that they and others returned to Mexico under the MPP face targeted discrimination, physical violence, sexual assault, overwhelmed and corrupt law enforcement, lack of food and shelter, and practical obstacles to participation in court proceedings in the United States. The hardship and danger to individuals returned to Mexico under the MPP have been repeatedly confirmed by reliable news reports. The district court entered a preliminary injunction setting aside the MPP, and the government appealed. The Ninth Circuit affirmed, stating that “because the MPP directly affects immigration into this country along our southern border, the issuance of a temporary injunction setting aside the MPP was not an abuse of discretion.”(Innovation Law Lab v. Wolf (9th Cir., Feb. 28, 2020) 2020 WL 964402.)

Rule Conflicts with the Immigration and Nationality Act.

In November 2018, the Departments of Justice and Homeland Security jointly adopted an interim final rule which, coupled with a presidential proclamation issued the same day, strips asylum eligibility from every migrant who crosses into the United States between designated ports of entry. The Ninth Circuit considered whether the rule unlawfully conflicts with the text and congressional purpose of the Immigration and Nationality Act (8 U.S.C. § 1158(a); INA), which states that a migrant who arrives in the United States “whether or not at a designated port of arrival” may apply for asylum. A federal trial court found the rule conflicts with the INA and entered a temporary restraining order enjoining the rule’s enforcement. Finding no error or abuse of discretion, the Ninth Circuit affirmed. (East Bay Sanctuary Covenant v. Trump (9th Cir., Feb. 28, 2020) 2020 WL 962336.)

Trail Immunity.

Plaintiff was riding his bicycle on a paved path in a city park around 5:30 a.m. when he rode into a rope attached to a badminton net that stretched across the path. He fell off the bicycle and suffered injuries. He sued the city. The trial court granted the city’s motion for summary judgment, finding the city immune from liability pursuant to the trail immunity doctrine found in Government Code § 831.4. The Court of Appeal agreed with the trial court and affirmed. (Reed v. City of Los Angeles (Cal. App. 2nd Dist., Div. 1, Feb. 28, 2020) 2020 WL 967665.)

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