Litigation Update: March 2022

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

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

In September 2016, plaintiffs leased their Oakland home to tenants for one year while fulfilling military assignments on the East Coast. After one year, the lease converted to a month-to-month tenancy. Under the City of Oakland Municipal Code, even after a lease has ended and converted to a month-to-month tenancy, the tenancy may only end if the landlord has good cause. Ending the tenancy, or “evicting,” for good cause, includes when a landlord chooses to move back into his or her home at the end of the month. However, after plaintiffs leased their home, the city also enacted an ordinance requiring landlords re-taking occupancy of their homes upon the expiration of a lease to pay tenants a relocation payment. When plaintiffs were reassigned to the Bay Area in 2018, they decided to move back into their Oakland home, so they gave their tenants 60 days’ notice to vacate, paying the relocation payment of $6,582.40. Plaintiffs thereafter sued the city under the Takings Clause, alleging violation of 42 U.S.C. § 1983. The district court dismissed their action. Affirming, the Ninth Circuit stated: “Ordinary rent control often transfers wealth from landlords to tenants . . . . [¶] The Ballingers have not established a cognizable theory of state action. . . . At most, the City was only involved in adopting an ordinance providing the terms of eviction and payment.” (Ballinger v. City of Oakland (9th Cir., Feb. 1, 2022) 24 F.4th 1287.)

Licensed Contractor Issue.

Plaintiff sued defendant for payment for work plaintiff performed on a construction project. Defendant demurred, citing Business and Professions Code § 7031, which requires a contractor to be licensed at all times in order to have the courts uphold a construction contract. The trial court sustained defendant’s demurrer, in part because the contract mistakenly indicated that a non-licensed entity would be responsible for the construction work. Issuing a writ of mandate, the Court of Appeal noted that all work was actually performed by a licensed contractor, and that plaintiff had sought reformation of the contract to accurately name the licensed entity that performed the work. Noting that Civil Code § 3399 permits reformation of a contract upon application of any aggrieved party, the Court of Appeal ordered the trial court to overrule the demurrer, stating: “Given the facts asserted by the operative complaint, overruling the demurrer is not only compelled by law, but necessary to prevent defendants from walking away with a massive windfall without [plaintiff] ever having its day in court.” (Panterra GP, Inc. v. Superior Court (Cal. App. 5th Dist., Jan. 31, 2022) 74 Cal.App.5th 697.)

Arbitration Award Vacated Because Dispute Was Not Within the Scope of the Agreement Containing the Arbitration Clause.

The trial court ordered this matter into arbitration. Following the arbitration, plaintiffs appealed, contending inter alia that their investment fraud claims were outside the scope of the arbitration provision of the parties’ cotenancy agreement. Ordering the arbitration award vacated, the Court of Appeal stated: “In sum, the [plaintiffs’] lawsuit does not involve the interpretation or enforcement of a provision of the cotenancy agreement; their claims are not ‘rooted in’ the cotenancy agreement; and applying Civil Code section 1642’s interpretative tool does not justify requiring arbitration of a dispute that relates to the acquisition of the Amlap investment, not to its management and operation.” (Ahern v. Asset Management Consultants, Inc. (Cal. App. 2nd Dist., Div. 7, Feb. 1, 2022) 74 Cal.App.5th 675.)

Hospital Requires Patients to Assign Proceeds of Uninsured/ Underinsured Motorist and Medical Benefits to Hospital.

Plaintiff hospital requires patients or their family members to sign Conditions of Admissions (COAs) when it provides the patients’ medical care. The COAs at issue in this action contain language that assigns to the hospital direct payment of uninsured and underinsured motorist (UM) benefits and medical payment (MP) benefits that would otherwise be payable to those patients under their automobile insurance policies. The hospital treated five of defendant insurance company’s insureds for injuries following automobile accidents. Those patients had UM and/or MP coverage as part of their coverage, and the hospital sought to collect payment for those services from the patients’ UM and/or MP benefits at the hospital’s full rates. The insurance company paid portions of the benefits directly to the patients which left balances owing on some of the hospital’s bills. The hospital sued the insurance company under the assignments contained in the COAs. The trial court concluded that the hospital could not enforce any of the assignments contained in the COAs and entered judgment for defendant. Affirming in large part, the Court of Appeal found that: (1) the COAs are contracts of adhesion; (2) it is not within the reasonable possible expectations of patients that a hospital would collect payments for emergency care directly out of their UM benefits; but (3) a trier of fact might find it is within the reasonable expectations of patients that a hospital would collect payments for emergency care directly out of their MP benefits. The court therefore held that the hospital could not collect payment for emergency services from the UM or MP benefits as to four of the five covered patients, and could not collect payments for UM benefits as to the fifth patient. (Dameron Hospital Association. v. AAA Northern California, Nevada & Utah Insurance Exchange (Cal. App. 3rd Dist., Feb. 2, 2022) 74 Cal.App.5th 796.)

Petition to Arbitrate Denied Due to Equitable Claims.

Prior to their current dispute, the parties agreed to arbitrate “any dispute, controversy or claim arising out of or relating to” their agreement, “[e]xcept for claims seeking injunctive or other equitable relief.” Plaintiff then sued, raising various contractual causes of action, as well as claims for (1) specific performance of a management agreement, (2) specific performance of an asset purchase agreement, (3) rescission based on fraud, (4) rescission based on negligent misrepresentation, (5) rescission based on mutual mistake, and (6) disgorgement of profits for violations of Business and Professions Code § 17200 et seq. Defendant moved to compel arbitration. The trial court applied the plain meaning of the exception and concluded that plaintiff’s six causes of action for specific performance, rescission, and disgorgement were not subject to arbitration. The court also delayed the arbitration of the other causes of action until after the equitable claims were resolved in court. Affirming, the Court of Appeal rejected defendant’s argument that the six claims were actually claims for damages that had been improperly “repackaged” as equitable claims. Instead, it found that the agreement was unambiguous: the six claims for specific performance, rescission, and disgorgement, were equitable in nature, and therefore not subject to the arbitration agreement. (Eminence Healthcare, Inc. v. Centuri Health Ventures, LLC (Cal. App. 5th Dist., Feb. 3, 2022) 74 Cal.App.5th 869.)

Creditor’s Application to Force Sale of Debtor’s Home Found Deficient.

Before a creditor with a money judgment may force the sale of a debtor’s dwelling to satisfy that judgment, the creditor must, in addition to other procedures, obtain a court order authorizing the sale. (Code Civ. Proc., § 704.750, subd. (a).) To obtain that order, the creditor must file an application that includes, among other things, a statement of the amount of any liens or encumbrances on the dwelling. Here, the trial court refused to issue the order, finding the creditor’s application deficient for not listing liens for unpaid property taxes, though the liens did not need to be recorded. Affirming, the Court of Appeal stated: “Because the creditor’s application in this case did not list the delinquent property taxes against the debtor’s dwelling and went so far as to represent, under oath, that ‘there are no actual or purported liens or encumbrances’ on the property, the trial court properly denied the creditor’s application as deficient.” (Meyer v. Sheh (Cal. App. 2nd Dist., Div. 2, Feb. 3, 2022) 74 Cal.App.5th 830.)

The Five Year Rule During the Pandemic: Only the Heartiest Survive.

The trial court dismissed an action for failure to bring it to trial within five years, as required under Code of Civil Procedure § 583.310.

  • July 2015—Complaint filed.
  • November 2019—Plaintiff requested 6-month continuance. Trial continued to February 2021.
  • February 2021—Defendant moved to dismiss under five year rule.

The Judicial Council of California enacted emergency rules due to the COVID-19 pandemic. Emergency Rule 10(a) states: “Notwithstanding any other law, including Code of Civil Procedure section 583.310, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total of five years and six months.” (Cal. Rules of Court, Appen. I, Emergency Rule 10(a).) On appeal, plaintiff contended that under Code of Civil Procedure § 583.350, which provides that, if the time which an action must be brought to trial is “tolled or otherwise extended pursuant to statute,” the action “shall not be dismissed . . . if the action is brought to trial within six months after the end of the period of tolling or extension.” Affirming the dismissal, the Court of Appeal noted that the trial court held that the emergency rule is not a statute, and that plaintiff forfeited her argument the emergency rule is a statute by not raising it below. (Ables v. A. Ghazale Brothers, Inc. (Cal. App. 5th Dist., Feb. 3, 2022) 74 Cal.App.5th 823.)

Plaintiff Restaurants Dissatisfied with Yelp Filters.

Yelp, Inc. operates a popular online website that contains customer reviews of businesses. It uses software designed to filter out unreliable or biased reviews. Plaintiff operates restaurants in Mammoth Lakes. Plaintiff, dissatisfied with Yelp reviews, sued Yelp for an injunction under the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) and the false advertising law (Bus. & Prof. Code, § 17500 et seq.) to prevent Yelp from touting the accuracy and efficacy of its filter. The trial court held in Yelp’s favor. During the bench trial, the court excluded plaintiff’s principal, a software developer himself, from a portion of the trial where Yelp’s confidential software was discussed, and denied plaintiff’s motion to compel access to Yelp’s source code. Plaintiff contended these rulings were in error. Affirming, the Court of Appeal stated: “Due process does not confer upon a civil party an absolute right to be physically present at trial.” Additionally, plaintiff’s expert admitted that review of the source code would not tell him whether the website provided trustworthy and reliable reviews—since those were subjective terms—and other available methods could determine whether the software “worked.” (Multiversal Enterprises-Mammoth Properties, LLC v. Yelp, Inc. (Cal. App. 1st Dist., Div 3, Feb. 4, 2022) 74 Cal.App.5th 890.)

Property Owner Owes No Duty of Care to Jogger.

As part of her training for a half-marathon, plaintiff was jogging on property owned by defendant when she encountered a homeless encampment that blocked her path. To avoid the encampment, she ran onto the street’s bicycle lane, where she was struck and injured by a car. Plaintiff sued defendant for negligence and premises liability. The trial court granted defendant’s motion for summary judgment, concluding, among other things, that because plaintiff was engaged in a recreational use of the property within the meaning of Civil Code § 846, subdivision (a), the property owner did not owe her a duty of care. Affirming, the Court of Appeal stated: “Jogging to train for a foot race is an activity in which one engages for a ‘recreational purpose’ under section 846; and a property owner generally owes no duty of care to those who enter or use its property for such an activity.” (Rucker v. Wincal, LLC (Cal. App. 2d Dist., Div. 5, Feb. 4, 2022) 74 Cal.App.5th 883.)

Voting Rights.

In a redistricting dispute in Alabama, the district court found that Alabama’s congressional map likely violated the federal voting rights law and diluted the power of Black voters, and ordered the congressional districts be completely redrawn within a few weeks. The district court declined to stay the injunction for the 2022 elections even though the primary elections (via absentee voting) were just seven weeks away. The U.S. Supreme Court granted a stay of the court’s injunction to the Alabama Secretary of State, referencing the Purcell principle that federal courts ordinarily should not enjoin a state’s election laws in the period close to an election. (Purcell v Gonzales (2006) 549 U.S. 1.) The case, will be heard on the merits by the high court sometime in the future, likely after the November 2022 election. (Alabama Secretary of State v. Milligan (U.S., Feb. 7, 2022) 142 S.Ct. 879.)

PAGA and the Relation Back Doctrine.

The Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA) requires that before filing suit, the plaintiff must submit notice of the alleged violations to the California Labor and Workforce Development Agency (LWDA). The relation back doctrine holds that in certain circumstances, the claims in an amended complaint are deemed to have been filed on the date of the initial complaint for purposes of the statute of limitations. Here, the first aggrieved employee submitted notice to the LWDA and thereafter filed a complaint in court, alleging a PAGA claim. But the second aggrieved employee filed a complaint in court before submitting the PAGA notice. In the class action, plaintiffs sought to substitute the second employee as the class representative in place of the first employee. At stake was the length of time for which the employer may be liable for statutory civil penalties if the alleged violations of the Labor Code are proven true. The trial court granted summary adjudication for the employer, concluding the doctrine of relation back does not apply to PAGA claims where the substituted party’s notice was filed after the original complaint date. Reversing, the Court of Appeal held the substitution may be made and the relation back doctrine may be applied if the trial court finds the claims in the amended complaint rest on the same set of general facts, involve the same injury and refer to the same instrumentality as the claims in the original complaint. (Hutcheson v. Superior Court (Cal. App. 1st. Dist., Div. 2, Feb. 7, 2022) 74 Cal.App.5th 932.)

“Quality is job one,” Ford Slogan.

Plaintiff purchased a Ford Super Duty F-250 6.0 liter diesel pickup truck, intending to use it  for hunting and fishing trips during his retirement, as well as camping trips with his wife. But the vehicle did not perform as advertised and became essentially a “driveway ornament.” Plaintiffs sued under the lemon law (Civ. Code, § 1790 et seq.; Song-Beverly Act), the Consumers Legal Remedies Act (Civ. Code, § 1750 et. seq.), and also claimed a cause of action based upon fraud in the inducement-concealment. The jury awarded plaintiffs $47,715.60 in actual damages—the original purchase price of the truck, $30,000 in statutory civil penalties under the Song-Beverly Act, and $150,000 in punitive damages. The trial court granted plaintiffs’ motion for attorney fees for $643,615.00. On appeal, Ford, among other things, maintained that plaintiffs could not recover both a statutory civil penalty under the Song-Beverly Act and punitive damages because it was substantially the same conduct. Affirming the judgment, the Court of Appeal found that punitive damages and the Song-Beverly Act civil penalty were both properly awarded to plaintiffs because the pre-sale fraudulent inducement and the post-sale non-compliance were separate and stand-alone conduct. (Anderson v. Ford Motor Company (Cal. App. 3d. Dist., Feb. 8, 2022) 74 Cal.App.5th 946.)

Only Partially an At-Will Employee.

A police chief sought writ relief in the superior court after the city fired him. The superior court denied his petition. The Court of Appeal reversed, noting plaintiff’s employment agreement stated he could be removed as police chief for any reason and, if the removal was not for willful misconduct, he had the option of continuing his employment by returning to the position of police lieutenant. The appeals court explained: “Based on our de novo interpretation of the employment agreement, we conclude plaintiff (1) was an at-will employee only in the capacity of police chief and (2) had rights to employment as a lieutenant that could be terminated only for cause. Thus, plaintiff’s employment as a lieutenant was not at-will. Consequently, before City could terminate his right to employment as a lieutenant, it was required by [the Public Safety Officers Procedural Bill of Rights Act] to provide him with the type of administrative appeal afforded public safety officers who are terminable only for cause.”(Joseph v. City of Atwater (Cal. App. 5th Dist., Feb. 9, 2022) 74 Cal.App.5th 974.)

Reliable Authority: American Society of Testing and Materials Standards.

Plaintiff slipped and fell in a Safeway parking lot while it was raining. She sued Safeway, contending that when the crosswalk was re-striped several weeks earlier, Safeway did not make the crosswalk slip resistant. A jury found for Safeway. On appeal, plaintiff argued the trial court erroneously prohibited her from cross-examining Safeway’s liability expert about standards promulgated by the American Society of Testing and Materials (ASTM) concerning safe walking surfaces. She contended that under Evidence Code § 721, subdivision(b)(3), an adverse expert may be cross-examined about a publication established as reliable authority, such as ASTM standards, regardless of the expert’s consideration of, or reliance on, the publication in forming his or her opinions. Affirming, the Court of Appeal concluded the trial court erroneously prohibited plaintiff from using the ASTM standard during cross-examination of Safeway’s expert, but the error was harmless because plaintiff presented no witness to testify that, had Safeway followed that standard, she would not have fallen. (Paige v. Safeway, Inc. (Cal. App. 1st Dist., Div. 3, Feb. 10, 2022) 74 Cal.App.5th 1108.)

One of the Catch-22 Aspects of an Agreement to Arbitrate: Arbitrator Issues an Order that Courts Lack Jurisdiction to Review.

Plaintiff purportedly violated a confidential settlement agreement by disclosing confidential information. Because the settlement agreement contained an arbitration clause, defendant obtained a preliminary injunction from an arbitrator prohibiting plaintiff from disclosing confidential information. Plaintiff filed a petition in superior court to vacate the preliminary injunction. The trial court determined the injunction was not an “award” within the meaning of Code of Civil Procedure § 1283.4, and dismissed the action for lack of jurisdiction. Affirming, the Court of Appeal concluded the appeal was taken from a non-appealable order. (Kirk v. Ratner (Cal. App. 2nd Dist., Div. 7, Feb. 10, 2022) 74 Cal.App.5th 1052.)

Class Actions and PAGA Claims Differ.

After years of litigation, the parties reached a settlement pertaining to class claims and claims brought pursuant to the California Private Attorneys General Act (Lab. Code, §§ 2698 et seq.; PAGA), which allows private citizens to recover civil penalties on behalf of themselves “and other current or former employees” for violations of the Labor Code. Lawrence Peck and Sadashiv Mares filed objections to the settlement agreement. Peck objected to the PAGA portion of the settlement, while Mares argued that the monetary award for the class claims was not fair and reasonable. The district court overruled both sets of objections and gave final approval to the settlement. Dismissing Peck’s appeal and vacating the lower court’s approval of the class action settlement, the Ninth Circuit stated: “We hold that Peck may not appeal the PAGA settlement because he is not a party to the underlying PAGA action, and so we dismiss his appeal. However, we vacate the district court’s approval of the class action settlement agreement and remand the class action for further proceedings, as we agree with Mares that the district court abused its discretion by applying an incorrect legal standard when evaluating the settlement.” (Saucillo v. Peck (9th Cir., Feb. 11, 2022) 25 F.4th 1118.)

Previously we reported:
FEHA’s Asymmetric Standard for Award of Attorney Fees and Arbitration.

Under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA), a successful plaintiff is entitled to recover reasonable attorney fees, but a prevailing defendant may not be awarded fees unless the court finds the action was frivolous, unreasonable or groundless. (Gov. Code, §12965, subd. (b).) Here, an employer’s arbitration agreement authorized the recovery of fees for a successful motion to compel arbitration of a FEHA lawsuit. The trial court granted the employer’s motion to compel arbitration and awarded fees to the employer, but there was no finding by the court that plaintiff’s opposition was frivolous, unreasonable or groundless. Granting plaintiff’s petition for writ of mandate, the Court of Appeal noted that the required finding was not made and ordered the trial court to conduct a new hearing. (Patterson v. Superior Court of Los Angeles County (Cal. App. 2nd Dist, Div. 7, Oct. 18, 2021) 70 Cal.App.5th 473.)

The latest:

This case involves the same arbitration agreement as the one in Patterson v. Superior Court. But the Court of Appeal here, stated, “we . . . disagree with Patterson v. Superior Court (2021) 70 Cal.App.5th 473 (Patterson), which considered the enforceability of a provision in the same arbitration agreement at issue here that awards attorney fees to the prevailing party on a motion to compel arbitration. After concluding that the provision is not enforceable as written, the court in Patterson incorporated an implied term bringing the provision into accord with the asymmetrical attorney fee standard of FEHA under section 12965, subdivision (c)(6) (a prevailing defendant is entitled to attorney fees only if the employee’s action was frivolous, unreasonable, or groundless.) With that implied term, the court in Patterson found the provision enforceable. . . . [W]e disagree with Patterson’s analysis and find the provision unconscionable.” (Ramirez v. Charter Communications, Inc. (Cal. App. 2nd Dist., Div. 4, Feb. 18, 2022) 2022 WL 498706.)

Plaintiff Not Entitled to Jury Trial in PAGA Action.

Plaintiff worked as a cashier for defendant’s grocery store. She brought a claim under the Private Attorneys General Act (Lab. Code, § 2698 et seq.; PAGA), alleging that defendant violated an Industrial Welfare Commission wage order that requires employers to provide suitable seating when the nature of the work reasonably permitted the use of seats, or, for a job where standing was required, to provide seating for employee use when their use did not interfere with an employee’s duties. After a bench trial, the trial court found that defendant had not violated the applicable wage order because the evidence showed that even when lulls occurred in a cashier’s primary duties, cashiers were still required to move about the store fulfilling various other tasks. Affirming, the Court of Appeal stated: “We reject [plaintiff’s] contention that she was entitled to a jury trial and affirm the trial court’s finding that Ralphs was not required to provide seating for its cashiers.” (La Face v. Ralphs Grocery Company (Cal. App. 2nd Dist., Div. 4, Feb. 18, 2022) 2022 WL 498847.)

At-Will Versus False Assurances in Employment Contract.

Plaintiff alleged a violation of Labor Code § 970, arising out of discussions about the length of his employment with defendant prior to accepting a position with the company as lead project manager. Defendant moved for summary judgment, contending that plaintiff’s employment contract negated his plaintiff’s allegedly false representations regarding the length of time his work for defendant would last. Plaintiff conceded he read, signed, and understood the integrated, at-will contract between the parties. The trial court granted summary judgment for defendant. On appeal, plaintiff contended the trial court erroneously found that his undisputed at-will employment status meant that he could not establish justifiable reliance on alleged representations regarding the kind or character of work he would perform, rather than the length of time such work would last. Reversing, the Court of Appeal stated: “Broadly construed, White’s complaint encompassed allegations of false assurances of long-term employment as well as misrepresentations regarding the role White would fill at Smule. The ‘at-will’ employment provision negated justifiable reliance on the former representations, but not the latter. The trial court’s ruling therefore cannot stand, and Smule has not established entitlement to summary judgment on an alternative ground.” (White v. Smule, Inc. (Cal. App. 1st. Dist., Div. 4, Feb. 18, 2022) 2022 WL 503811.)

Claimant’s Right of Possession After Landlord’s Successful Unlawful Detainer Action.

Following a foreclosure, claimant and appellant filed a postjudgment claim of right to possess the subject property—a mechanism for an occupant of a property who is not identified in a judgment favoring the landlord to be inserted into the lawsuit as a party defendant. The trial court determined there was no “valid claim of right to possession by a tenant postjudgment” and denied the claim. Appellant challenged that order. Reversing, the Court of Appeal stated: “We hold a postjudgment claimant is entitled to be inserted into the lawsuit if the claimant proves, by a preponderance of evidence, that the claimant: (1) was an occupant of the premises on the date the unlawful detainer was filed; and (2) had a colorable right to possession in that the occupancy was not as an invitee, licensee, guest, or trespasser. Because appellant met that burden by, among other things, producing a lease agreement with the foreclosed owner that was in effect at the time the unlawful detainer was filed and a driver’s license showing the address of the property as her residence address, the order denying her claim is reversed.” (Crescent Capital Holdings, LLC v. Motiv8 Investments, LLC (Super. Ct., L.A. County, App. Div., Feb. 18, 2022) 2022 WL 500356.)

Elder Abuse/Wrongful Death Case Against Nursing Home Remanded to Superior Court.

The family of a man who died in a nursing home sued the nursing home for elder abuse, negligence and wrongful death in California state court. The nursing home removed the matter to federal court, and a federal trial court remanded the case back to the state court. The nursing home appealed, arguing that the federal trial court had three independent grounds for federal jurisdiction: federal officer removal, complete preemption of state law, and the presence of an imbedded federal question. Affirming the remand order, the Ninth Circuit stated: “Glenhaven did not act under a federal officer or carry out a federal duty when it provided care to Ricardo Saldana. The PREP Act [—Public Readiness and Emergency Preparedness Act, which provides immunity from suit when the Health and Human Services Secretary determines that a threat to health constitutes a public health emergency, but provides an exception to this immunity for an exclusive federal cause of action for willful misconduct—] does not completely preempt the Saldanas’ claims,; and the possible preemption of one claim cannot be determined by this court or the district court. And there is no embedded federal question in the Saldanas’ complaint. Thus, the district court lacked subject matter jurisdiction, and the suit was properly remanded to state court.” (Saldana v. Glenhaven Healthcare LLC (9th Cir., Feb. 22, 2022) 2022 WL 518989.)

Exclusion of Fire Expert’s Testimony Reversed.

Plaintiffs own a luxury vacation cottage in Idaho. The day before a fire destroyed the cottage, one of the plaintiffs power washed and stained the deck with Penofin-brand oil. Penofin oil is highly flammable. A propane-fueled refrigerator atop an open-flame pilot light sat on the deck. Plaintiff sued, contending the open-flame pilot light ignited combustible vapors that caused the fire. Plaintiffs retained a fire investigator who was of the opinion the refrigerator pilot light ignited the fire. The district court precluded the expert from testifying, finding: his methodology was unreliable; that he was not qualified to render an expert opinion in the field of fire investigation; and that the substance of his opinion was speculative. Thereafter, the district court entered partial summary judgment for defendant. Reversing, the Ninth Circuit stated: “It is undisputed that Koster was qualified as an expert in fire investigation, and that he applied broadly accepted scientific principles and professional standards to conduct his analysis.” (Elosu v. Middlefork Ranch Incorporated (9th Cir., Feb. 23, 2022) 2022 WL 534345.)

What “with Knowledge that It Was Inaccurate” Means in the Copyright Registration Context.

Under 17 U.S.C. §411(b)(1), a certificate of copyright registration is valid “‘regardless of whether the certificate contains any inaccurate information, unless—[¶] ‘(A) the inaccurate information was on the application for copyright registration with knowledge that it was inaccurate; . . . [¶].’” The question before the U.S. Supreme Court concerned the scope of the phrase “with knowledge that it was inaccurate.” The Ninth Circuit believed that a copyright holder cannot benefit from the safe harbor and save its copyright registration from invalidation if its lack of knowledge stems from a failure to understand the law rather than a failure to understand the facts. Vacating the holding of the Ninth Circuit, the nation’s highest court stated: “In our view, however, §411(b) does not distinguish between a mistake of law and a mistake of fact. Lack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration.” (Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. (U.S., Feb. 24, 2022) 2022 WL 547681.)

Physician Assistants Entitled to MICRA Cap For Noneconomic Damages.

Under a provision of the Medical Injury Compensation Reform Act (Civ. Code, § 3333.2; MICRA), damages for noneconomic losses shall not exceed $250,000 in “any action for injury against a health care provider based on professional negligence.” The issue in this case concerned whether the MICRA cap applies to physician assistants. The California Supreme Court held “that section 3333.2 applies to a physician assistant who has a legally enforceable agency relationship with a supervising physician and provides services within the scope of that agency relationship, even if the physician violates his or her obligation to provide adequate supervision.” (Lopez v. Ledesma (Cal., Feb. 24, 2022) 2022 WL 553421.)

Sanctions Under CCP § 128.7.

The parties’ dispute is over royalties and rights related to two sets of musical compositions. On November 20, 2019, one of the parties served but did not file a Code of Civil Procedure § 128.7 motion for attorney fees, and filed the motion on December 13, 2019. The trial court concluded the moving party had failed to give the full 21-day safe harbor period, denying the motion. Affirming, the Court of Appeal stated: “A sanctions motion cannot be filed until the 22nd day after service of the motion, i.e., after the 21-day safe harbor period expires. . . . Here, the objectionable document (the motion for attorney fees) was resolved on December 11, 2019, which was the last day of the safe harbor period and before that period expired. Consequently, the sanctions motion was improperly filed on December 13, 2019.” (Broadcast Music, Inc. v. Structured Asset Sales, LLC (Cal. App. 2nd Dist., Div. 2, Feb. 24, 2022) 2022 WL 556991.)

Former High School Football Player Wants School District to Defend Him.

While a high school student within defendant’s school district, plaintiff was a member of its varsity football team. After he graduated, he was named as a co-defendant in a lawsuit filed by a football referee who claimed to have been injured when plaintiff blocked an opponent, who then fell on the referee. The school district rejected plaintiff’s request for it to defend him in the action, and plaintiff sued the school district. The trial court sustained defendant’s demurrer and dismissed plaintiff’s action. Finding the school district did not owe plaintiff a duty to defend under the Education Code or the California Constitution, the Court of Appeal stated: “We are compelled to affirm.” (Srouy v. San Diego Unified School District (Cal. App. 4th Dist., Div. 1, Feb. 24, 2022) 2022 WL 557183.)

Transparency in Immigration Matters.

The California Public Records Act (Gov. Code, § 6250 et seq; CPRA) generally applies only to government agencies. However, with respect to facilities that detain noncitizens as they await federal civil immigration  proceedings, the Legislature enacted Civil Code § 1670.9, which provides  that “[a]ny facility that detains a noncitizen pursuant to a contract with a city” is subject to the CPRA. The U.S. Immigration and Customs Enforcement agency (ICE) entered into a contract with the City of Holtville to detain noncitizens at the Imperial Regional Detention Facility. The city did not own the facility, so the city subcontracted its detention responsibilities to the facility’s owner. The owner did not operate the facility, so the owner subcontracted its responsibilities (with ICE’s approval) to a private operator, the real party in interest here.  Petitioner served the operator with a CPRA request regarding the facility. The operator refused to comply, reasoning it was not subject to the CPRA because it did not have a contract directly with the city, and, thus, the facility was not one that “detains a noncitizen pursuant to a contract with a city.” (Civ. Code, § 1670.9, subd. (c).) Petitioner sought a writ of mandate from the trial court, but the court agreed with operator’s interpretation of § 1670.9, subdivision (c) and denied the petition. Granting the petition for writ of mandate, the Court of Appeal stated: “[T]he Legislature intended for the CPRA to apply to immigration detention facilities on a facility-wide basis rather than an entity-specific basis.” (Herrmann v. Superior Court (Cal. App. 4th Dist., Div. 1, Feb. 24, 2022) 2022 WL 557181.)

Method of Amendment Was Specified in the Trust.

The day before husband died, husband and wife amended their revocable trust. The probate court deemed the amendment null and void because the trust mandates that any amendment “shall be made by written instrument signed, with signature acknowledged by a notary public.” The amendment was not so acknowledged. Affirming, the Court of Appeal cited Probate Code § 15402, stating that “when a trust specifies a method of amendment . . . section 15402 provides no basis for validating an amendment that was not executed in compliance with that method.” (Balistreri v. Balistreri, (Cal. App. 1st Dist., Div. 3, Feb. 24, 2022) 2022 WL 557745.)

Sanctions for Disclosure of Confidential Custody Evaluation.

In a child custody proceeding, the father filed a brief that quoted from a confidential, court-ordered psychological evaluation undertaken during the mother’s previous marital dissolution. The mother sought sanctions under Family Code §§ 3025.5 and 3111, subdivision (d) for unwarranted disclosure of the confidential custody evaluation. The family court ordered sanctions of $10,000 against the father, and $15,000 against the father’s lawyer, the objector here. Affirming denial of the lawyer’s motion to vacate the sanctions award against her, the Court of Appeal rejected the lawyer’s contentions that: (1) attorneys cannot be sanctioned under § 3111; (2) the notice she received did not comply with due process standards; (3) the court lacked personal jurisdiction over her; (4) the court failed to enforce the safe harbor provision of Code of Civil Procedure § 128.7; and (5) the court improperly admitted and relied on a transcript of a meeting between the parties. (Shenefield v. Shenefield (Cal. App. 4th Dist., Div. 1, Feb. 25, 2022) 2022 WL 573036.)

Federal Inmate May Pursue Claim Against Prison Guard.

Plaintiff is a federal prisoner who alleges that defendant correctional officer: (1) labeled him a snitch to other prisoners; (2) offered them a bounty to assault plaintiff; and (3) failed to protect him from the predictable assault by another prisoner. Plaintiff sued defendant for violating his Eighth Amendment rights and sought damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 U.S. 388. The district court dismissed the action. Reversing, the Ninth Circuit stated: “Although we recognize that the Supreme Court has ‘made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity,’ the Court has also made clear that a remedy may be available for a case arising in a new Bivens context, so long as ‘special factors [do not] counsel[] hesitation.’[Citation.] In Carlson v. Green, 446 U.S. 14, 18–20 (1980), the Court recognized a Bivens remedy for a violation of the Eighth Amendment prohibition on cruel and unusual punishment. While Hoffman’s Eighth Amendment claim is different in some respects from the Eighth Amendment claim presented in Carlson, no special factors counsel hesitation against what is a very modest expansion of the Bivens remedy to this context.” (Hoffman v. Preston (9th Cir., Feb. 28, 2022) 2022 WL 589309.)

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