Litigation Update: May 2019

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

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District
  • Managing Editor, Reuben Ginsburg
  • Editors, Dean Bochner, Glenn Danas, Herb Fox, Jessica Riggin, Anne Voigts and Kenneth Wang
No Right to Data Supporting Expert’s Testimony.

In partly denying an applicant’s request for Social Security benefits, the Social Security Administration (SSA) relied upon the testimony of an expert witness who testified about the availability of certain jobs based on “market-survey data.” The applicant requested the underlying data and was refused because the data would reveal private information about the expert’s clients and making careful redactions would take a fair bit of time. The question before the U.S. Supreme Court was whether the expert’s refusal to provide the supporting data categorically precluded her testimony from counting as substantial evidence to support SSA’s decision. The high court decided there was no such preclusion because even in the absence of the supporting data here, there was substantial evidence to support SSA’s decision, stating, “[e]ven though the applicant might wish for the data, the expert’s testimony still will clear (even handily so) the more-than-a-mere-scintilla threshold. The inquiry, as is usually true in determining the substantiality of evidence, is case-by-case.” (Biestek v. Berryhill (U.S., Apr. 1, 2019) 139 S.Ct. 1148.)

As-applied Lethal Injection Challenge Rejected by U.S. Supreme Court.

When a woman ended her relationship with a man, he cut her jaw, punched her in the face, and threatened her with a knife. Later, he invaded the home where she was hiding from him and shot and killed the homeowner, shot at the man’s six-year-old son, and pistol whipped the woman. He drove her to a secluded spot and raped her at gunpoint. After his arrest, he escaped and attacked the woman’s mother with a hammer before he was recaptured. In 1996, a jury convicted him of murder and other crimes and he was sentenced to death. He challenged Missouri’s death penalty lethal injection protocol, citing the Eighth Amendment. Missouri revised its protocol. Just days before he was to be executed, the man launched another challenge to the death penalty protocol, this time arguing the protocol was cruel and ununusual as applied to him personally because of his medical condition, throat tumors that he said would rupture during his execution, causing him to choke on his own blood for several minutes before death. Denying the man’s latest challenge, the U.S. Supreme Court stated: “Under our Constitution, the question of capital punishment belongs to the people and their representatives, not the courts, to resolve. The proper role of courts is to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously. Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay.” (Bucklew v. Precythe (U.S. Apr. 1, 2019) 139 S.Ct. 1112.)

Uninsured Motorist Coverage.

An uninsured motorist struck and killed a woman. The woman’s daughter, the plaintiff here, did not reside with her mother and made claims under her mother’s two insurance policies for wrongful death. One of the policies was for automobile liability and the other was an umbrella policy that included an endorsement adding uninsured and underinsured motorist coverage. The trial court determined there was coverage under the auto policy but not the umbrella policy. Affirming, the Court of Appeal determined that plaintiff was entitled to coverage under the automobile policy as heir of an insured pursuant to Insurance Code § 11580.2, subdivision (a)(1), but the statute does not apply to umbrella policies and plaintiff was not an insured under the terms of the umbrella policy. (Komorsky v. Farmers Insurance Exchange (Cal. App. 2nd Dist., Div. 4, Apr. 2, 2019) 33 Cal.App.5th 960.)

Subrogation Action Dismissed.

The CC&R’s for a commercial condominium association require the association to maintain fire insurance and other coverage naming the association, all owners, and all mortgage holders as insureds. The CC&R’s also state: “Any insurance maintained by the Association shall contain [a] ‘waiver of subrogation’ as to the Association, its officers, Owners and the occupants of the Units and Mortgagees. . . .” In one condominium, where a tenant operated a furniture manufacturing business, a fire erupted. Plaintiff, the association’s insurer,  paid for the fire damage.Plaintiff insurance company sued the tenant furniture company in subrogation because it stored flammable materials near faulty wiring. The furniture company successfully moved for summary judgment. Affirming the grant of summary judgment, the Court of Appeal held that defendants were implied insureds under the policy and the insurance company was barred from suing its own insureds for negligently causing a fire. (Western Heritage Insurance Company v. Frances Todd, Inc. (Cal. App. 1st Dist., Div. 5, Apr. 2, 2019) 33 Cal.App.5th 976.)

Previously we reported:
No Showing of Good Cause to Obtain Medical Records.

During an investigation involving opioid prescriptions, the Medical Board of California filed a petition in superior court for an order compelling production of a doctor’s medical records for five patients. The trial court granted the petition. On appeal, the doctor argued the government’s interest in his patient’s medical records was insufficient to overcome their right to privacy and that the board lacked authority to issue subpoenas for records of noncomplaining witnesses. Reversing, the Court of Appeal held that the board failed to demonstrate good cause, stating: “Good cause requires something more than the mere fact that a specialist in pain medication prescribed doses slightly greater than 100 MED [morphine equivalent doses] to three patients and two others received prescriptions for drugs which, used in combination, resulted in increased sedative effects.” (Grafilo v. Cohanshohet (Cal. App. 2nd Dist., Div. 8, Feb. 8, 2018) 32 Cal.App.5th 428.)

The latest:

The Department of Consumer Affairs (DCA) through the Attorney General (AG) tried to obtain medical records for five patients of a doctor under investigation for overprescribing controlled substances to patients. Its subpoena was supported by a declaration of a medical consultant who told the court the “only way to determine whether [the doctor] properly and safely administered any of these controlled substances to the five patients . . . is to obtain and review the complete and accurate medical records of the five patients.” Instead of producing the medical records, the doctor’s lawyer produced a letter stating one of the five patients did not want the records produced. The AG petitioned the superior court to order the doctor to produce the records, but did not serve the petition on the patients. The superior court ordered the doctor to produce the records. The Court of Appeal reversed, stating: “We agree with [the doctor] that the DCA did not establish good cause for the subpoena and, therefore, reverse.” (Grafilo v. Wolfsohn (Cal. App. 2nd Dist., Div. 1, Apr. 2, 2019) 33 Cal.App.5th 1024.)

Devious Neighbors.

Plaintiff placed a house on the market, found a buyer, and entered into escrow. Defendants, who live in a neighboring property, caused the sale to fall through when they told plaintiff’s real estate agent in an email that they planned to construct an addition to their house that would interfere with the sweeping views of plaintiff’s house. Plaintiff sued defendants alleging the statement was intended to interfere with the pending sale. Defendants brought a special motion to strike (Code Civ. Proc., § 425.16), claiming their email involved a matter of public interest: representations to the public in the advertising materials about the views from plaintiff’s house. Affirming the trial court’s denial of the anti-SLAPP motion, the Court of Appeal stated: “Information about the views from a private residence affecting only those directly interested in buying or selling that house is not an issue of public interest.” The appellate court not only reversed the trial court’s order denying attorney fees against defendants, but court also ordered significant sanctions against both defendants and their attorneys. (Workman v. Colichman (Cal. App. 2nd Dist., Div. 4, Apr. 2, 2019) 33 Cal.App.5th 1039.)

Improper Forum.

A company’s headquarters are in Indiana. The company hired a California resident to work for the company in Contra Costa County. The company and the California resident entered into a written employment agreement stating that “any claim of any type brought by Employee against [the company] . . . must be maintained only in a court sitting in Marion County, Indiana . . . .” The company later discharged the employee, who then filed a complaint in Contra Costa County Superior Court for wrongful termination under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA). Government Code § 12965 states the superior courts of California shall have jurisdiction over civil lawsuits brought under FEHA. Labor Code § 925 states an employer cannot require an employee who resides in California to adjudicate outside of California a claim arising in California. The trial court denied the company’s motion to dismiss for improper forum based on those two code sections. The company challenged the ruling by filing a petition for writ of mandate in the Court of Appeal.  Granting the petition, the Court of Appeal held that FEHA’s mandate is a venue provision and the employer’s motion to dismiss was based on improper forum, not improper venue.  Regarding Labor Code § 925, the appellate court noted the statute’s express language limits its application to contracts made on or after Jan. 1, 2017. (Ryze Claim Solutions LLC v. Superior Court (Cal. App. 1st Dist., Div. 3, Apr. 3, 2019) 33 Cal.App.5th 1066.)

California Supreme Court Rules in Favor of Aesthetics.

A municipal ordinance requires wireless telephone service companies to obtain permits to install and maintain lines and equipment in public rights-of-way, and requires compliance with established aesthetic guidelines. Plaintiffs are telecommunications companies that argue §§ 7901 and 7901.1 of the Public Utilities Code permit them to construct telephone lines along public roads and preempt the ordinance. The California Supreme Court discussed the language of § 7901, “. . . telephone corporations may construct lines and erect equipment along public roads in ways and locations that do not ‘incommode the public use of the road,’ ”deciding the words refer to more than merely travel obstructions but also to the quiet enjoyment of a roadway.  California’s highest court also held that § 7901 does not preempt the local ordinance. (T-Mobile West LLC v. City and County of San Francisco (Cal., Apr. 4, 2019) 6 Cal.5th 1107.)

Grant of Irrevocable License Was an Abuse of Discretion.

Believing a flat patch of land atop a slope above some residences was part of her property, defendant improved it by extending some steps up the hillside, clearing overgrowth, hiring contractors to grade the patch, and installing sprinklers, gravel, and a fence. After that, the owner of the patch told defendant she could continue using it. The owner who gave permission later sold the property to plaintiff. Plaintiff asked defendant to vacate the area. Defendant continued using and maintaining it. Eventually, plaintiff sued defendant, alleging various causes of action. The trial court awarded defendant and her successors an exclusive, irrevocable license to use the disputed area. Finding the trial court abused its discretion and used the wrong legal standard, the Court of Appeal reversed. (Shoen v. Zacarias (Cal. App. 2nd Dist., Div. 2, Apr. 4, 2019) 33 Cal.App.5th 1112.)

Previously we reported:
Dinosaur Fossils Found to be Minerals.

An amateur paleontologist uncovered valuable dinosaur fossils on a ranch owned by plaintiffs. A year earlier, the previous owners sold their surface estate and one-third of the mineral estate to plaintiffs, expressly reserving the remaining two-thirds of the mineral estate. Plaintiffs and the previous owners brought dueling declaratory relief actions, each claiming ownership of the fossils. The district court granted summary judgment for the plaintiffs. Reversing, the Ninth Circuit held that the fossils were minerals. (Murray v. BEJ Minerals, LLC (9th Cir, Nov. 6. 2018) 908 F.3d 437.)

The latest:

The Ninth Circuit Court of Appeals ordered the matter to be reheard en banc. (Murray v. BEJ Minerals, LLC (9th Cir., Apr. 4, 2019) 920 F.3d 538.)

Parole After Serving a Grossly Disproportionate Prison Term Found to be Cruel and Unusual Punishment.

A criminal defendant was convicted of kidnapping for robbery in 1988 when he was 17 years old and sentenced to life in prison with the possibility of parole. He became eligible for parole in 1996 and was denied parole ten times. He filed a petition for writ of habeas corpus challenging his continued incarceration as cruel and unusual punishment in violation of the U.S. and California Constitutions. In the midst of defendant’s ongoing challenge to his parole denial, the Board of Parole Hearings finally granted him parole in December 2018 after the Court of Appeal ordered the board to conduct another hearing. The Court of Appeal then determined the petition was not moot and defendant’s “serial denial of parole . . . resulted in punishment so disproportionate to his individual culpability for the offense he committed, that it must be deemed constitutionally excessive.” The appellate court ordered defendant to be released from all forms of custody, including parole supervision. (In re Palmer (Cal. App. 1st Dist., Div. 2, Apr. 5, 2019) 33 Cal.App.5th 1199.)

Citizenship of a Trust for Diversity Jurisdiction.

Plaintiff filed an action in state court stemming from the foreclosure of her property. Defendants removed the action to federal court based on diversity jurisdiction. On appeal from a summary judgment in defendants’ favor, plaintiff challenged the district court’s subject matter jurisdiction, arguing the district court could not simply rely on the citizenship of the trustee bank to establish diversity jurisdiction, but rather had to look to the citizenship of the trust’s investors. Affirming, the Ninth Circuit observed that “when a trustee . . . is sued in her own name, her citizenship is all that matters for diversity purposes.”  Here, the trustee bank was sued in its own name and was a citizen of another state.  The district court properly exercised diversity jurisdiction because none of the defendants were citizens of California and plaintiff was. (Demarest v. HSBC Bank USA, N.A. (9th Cir., Apr. 8, 2019) 920 F.3d 1223.)

Anti-SLAPP Motion in Defamation Case.

During an election, a newspaper published a series of articles about substantial election expenditures made by one of the plaintiffs on behalf of city council candidates. Two plaintiffs sued the newspaper and author of the articles for defamation, libel per se, and false light invasion of privacy, alleging that the articles falsely implied that the other plaintiff was the source of the funds.  The trial court granted in part defendants’ motion to strike the complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16) and continued the motion in part to permit plaintiffs to conduct discovery on the issue of whether defendants acted with malice. The Court of Appeal reversed, concluding that the trial court should have granted the motion in full because plaintiffs failed to make a prima facie showing that the allegedly defamatory statements were false. (Sonoma Media Investments, LLC v. Superior Court (Cal. App. 1st Dist., Div. 5, Apr. 8, 2019) 2019 Cal. App. LEXIS 396.)

Auto Accident Verdict Upheld.

In an auto accident case, the jury returned a verdict of $610,000 for the injured plaintiff, who had sought more than $20 million in damages. During trial, defendant repeatedly referred to plaintiff’s medical insurance, his care at Kaiser Permanente, and his Medicare and Social Security disability benefits. After trial, plaintiff discovered that a juror had not disclosed during voir dire that he previously had been sued in two lawsuits. Plaintiff moved for a new trial. After conducting a hearing, the trial court determined that the juror had been minimally involved in those two actions and that there was no indication the juror was biased. Plaintiff appealed, arguing that the juror had intentionally concealed his involvement in the two prior lawsuits, and that defendant violated the collateral source rule by referring to plaintiff’s insurance, medical treatment, and disability benefits. The Court of Appeal found no error and affirmed. (Stokes v. Muschinske (Cal. App. 2nd Dist., Div. 8, Apr. 8, 2019) 34 Cal.App.5th 45.)

No Reimbursement to Mother’s Domestic Partner for Money He Spent on Child Who Lived with Them.

The domestic partner of a child’s mother sued the child’s father under Family Code § 3950 for reimbursement of money he paid for the child’s necessities while the child lived with him and the mother. Family Code § 3950 provides that if a parent neglects to provide articles necessary for a child, a third party may in good faith supply the necessities and then recover their reasonable value from the parent. The trial court denied the claim, and the Court of Appeal affirmed, concluding that the domestic partner was not entitled to reimbursement under Family Code § 3950 because the child’s father “satisfied his child support obligation under the law.” (Look v. Penovatz (Cal. App., 6th Dist., Apr. 8, 2019) 34 Cal.App.5th 61.)

Prosecutor’s Batson/Wheeler Notes Are Discoverable.

In 1994, a jury convicted the defendant of various crimes, including multiple murders, and sentenced him to death. During jury selection, the prosecutor excused three African Americans from the jury. The trial court denied defendant’smotions under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 after accepting the prosecutor’s race-neutral explanations. The California Supreme Court affirmed the ruling on appeal.  Defendant later filed a petition for writ of habeas corpus, alleging ineffective assistance of counsel because his counsel failed to raise another type Batson/Wheeler error. The trial court ordered the prosecution to turn over its jury selection notes to defense counsel. The Court of Appeal denied the prosecutor’s petition for writ of mandate, concluding that “when a prosecutor relies on jury selection notes to refresh his recollection and shares the details of jury selection notes with the court during a Batson/Wheeler hearing, upon request, the defense is entitled to review those notes.” (People v. Superior Court (Jones) (Cal. App. 4th Dist., Div. 1, Apr. 9, 2019) 34 Cal.App.5th 75.)

Employer: No Need to Sign Anything, but Just Letting the Employees Know that We Now Have an Agreement to Arbitrate any Disputes.

Three weeks before plaintiff sued her employer for workplace discrimination, the employer’s CEO announced that the company was adopting a new dispute resolution policy requiring arbitration of all claims, and that any employee who did not sign an agreement to arbitrate but continued working for the company would be deemed to have accepted the dispute resolution agreement. Just before serving the complaint on her employer, plaintiff presented the employer with a letter rejecting the arbitration agreement but indicating she intended to continue her employment. The employer petitioned the trial court to send the matter to arbitration. The trial court denied the petition, finding the arbitration agreement was a “take-it or leave-it” adhesion contract. In a split decision, the Court of Appeal reversed, concluding that plaintiff did not demonstrate the contract is unenforceable. (Diaz v. Sohnen Enterprises (Cal. App. 2nd Dist., Div. 7, Apr. 10, 2019) 34 Cal.App.5th 126.)

Agreement to Arbitrate Unconscionable.

An employee filed a wage claim against his employer for unpaid overtime and meal and rest periods. The employer petitioned the superior court to order the matter to arbitration pursuant to an arbitration agreement. The superior court denied the petition, finding the arbitration agreement was both procedurally and substantively unconscionable and that severance of the substantively unconscionable provisions was not possible. Affirming, the Court of Appeal stated: “Here, we have found that, in addition to at least a moderate level of procedural unconscionability, the central purpose of the arbitration provision is to evade the statutory protections and limit the remedies available to [the employee], as reflected in the numerous specific provisions that are substantively unconscionable.” (Subcontracting Concepts (CT), LLC v. De Melo (Cal. App. 1st Dist., Div. 2, Apr. 10, 2019) 34 Cal.App.5th 201.)

Proper Venue for Assault During a Flight.

On an airplane flight from Minneapolis to Los Angeles, a female passenger slapped a male passenger across the face because he kept jostling the back of her seat. She was subsequently charged with and convicted of misdemeanor assault.  The Ninth Circuit reversed her conviction, finding the Central District of California was an improper venue: “[T]he proper venue for [the] prosecution is the district in whose airspace the assault occurred. Because the parties do not dispute that the assault ended before [the flight] entered the airspace of the Central District of California, venue in that district was improper.” (United States v. Lozoya (9th Cir., Apr. 11, 2019) 920 F.3d 1231.)

Child Born out of Wedlock Lacks Standing to Sue for her Father’s Wrongful Death.

An unmarried man was killed by a texting drunk driver. The decedent’s biological child sued the drunk driver for wrongful death.  Although DNA testing confirmed that the plaintiff was the decedent’s child, the decedent told the biological mother he wanted nothing to do with the baby. Both the trial court and Court of Appeal (in a split decision) concluded that the child has no standing to bring a wrongful death action, finding the right to bring a wrongful death action is limited to those persons identified in Code of Civil Procedure § 377.60 (“A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by . . . the decedent’s . . . children”). The appellate court said the Legislature did not mean “children” in the biological sense, but as it is interpreted in the Probate Code. (Stennett v. Miller (Cal. App. 4th Dist., Div. 3, Apr. 12, 2019) 34 Cal.App.5th 284.)

Remember Proposition 51?

A jury found an asbestos-cement pipe manufacturer liable for causing one of the plaintiffs to contract mesothelioma. The trial court held the defendant 62 percent responsible for plaintiffs’ noneconomic damages after the jury apportioned that defendant 62 percent fault. Plaintiff appealed, arguing that the jury found the defendant liable for at least one intentional tort, and Civil Code § 1431.2 (Proposition 51) does not eliminate an intentional tortfeasor’s joint and several liability for noneconomic damages. The Court of Appeal agreed, stating: “[W]e hold that Proposition 51 does not eliminate an intentional tortfeasor’s joint and several liability for noneconomic damages.” (Burch v. Certainteed Corporation (Cal. App. 1st Dist., Div. 4, Apr. 15, 2019) 2019 Cal. App. LEXIS 346.)

Standing to Sue Nonprofit Corporation.

While serving as a director of a nonprofit corporation, plaintiff sued defendants, alleging self-dealing and misconduct. Defendants removed plaintiff as a director and demurred to the complaint, arguing plaintiff lacked standing to sue them and that plaintiff failed to join the Attorney General as an indispensable party. Plaintiff requested leave to amend the complaint to add the Attorney General. The trial court denied the request and sustained the demurrers without leave to amend. Reversing, the Court of Appeal concluded that the trial court abused its discretion in denying leave to amend and that plaintiff continued to have standing pursuant to Corporations Code §§ 5142, subdivision (a), 5223, subdivision (a) and 5233, subdivision (c). (Summers v. Colette (Cal. App. 2nd Dist., Div. 7, Apr. 15, 2019) 2019 Cal. App. LEXIS 347.)

No Financial Benefit from Alleged Copyright Infringement.

The State of California appointed defendant, a wealth management company, to manage the estates of disabled persons. Defendant hired a website developer to revamp its website and provided the website developer with material to use on the site. Three photographs taken from a bank’s website were used on defendant’s revamped site. Plaintiff created those photos and licensed them to the bank for its use. Plaintiff demanded that defendant “cease and desist infringing its copyright” and pay damages. The next morning, defendant removed those photos from its website, but refused to pay damages. A jury awarded plaintiff $450,000. Reversing, the Ninth Circuit found that the trial court erred when it instructed the jury on the issue of willfulness and concluded that defendant received no financial benefit “as a matter of law.” (Erickson Productions, Inc. v. Kast (9th Cir., Apr. 16, 2019) 921 F.3d 822.)

False Advertising.

A city attorney filed an action under Business and Professions Code § 17501 against J.C. Penney, Kohl’s, Macy’s, and Sears, Roebuck and Co., alleging the stores violated the statute by offering goods for sale online at prices discounted from reference prices that purported to reflect former prices, but which did not. The stores demurred, contending § 17501 unconstitutionally limits truthful speech and is void for vagueness. The statute states in part: “No price shall be advertised as a former price of any advertised thing, unless the alleged former price was the prevailing market price as above defined within three months next immediately preceding the publication of the advertisement or unless the date when the alleged former price did prevail is clearly, exactly and conspicuously stated in the advertisement.” The trial court sustained the demurrer without leave to amend on the ground the statute is unconstitutionally vague. The Court of Appeal granted the city attorney’s petition for writ of mandate, ordering the trial court to vacate its order and enter a new order overruling the demurrer, stating: “Here, the prohibition in section 17501 is directed at commercial speech, and relates to the content of advertising. . . . Because the section 17501 claims are predicated on what is alleged to be real parties’ false, misleading, or deceptive advertising, the claims do not encompass any protected commercial speech by real parties.” (People v. Superior Court (J.C. Penney Corp., Inc.) (Cal. App. 2nd Dist., Div. 4, Apr. 16, 2019) 34 Cal.App.5th 376.)

The Litigation Privilege in Civil Code § 47, subdivision (b).

In an action for false imprisonment and intentional infliction of emotional distress, plaintiff alleged defendant intentionally filed a false police report accusing her of forgery and embezzlement, leading to her arrest and seven-day incarceration. A jury awarded her $450,000. The trial court granted judgment for defendant notwithstanding the verdict. The Court of Appeal affirmed the judgment for defendant, stating: “When a citizen contacts law enforcement to report a suspected crime, the privilege in Civil Code section 47, subdivision (b) . . . bars causes of action for false imprisonment and intentional infliction of emotional distress, even if the police report was made maliciously.” (Cox v. Griffin (Cal. App. 4th Dist., Div. 1, Apr. 17, 2019) 34 Cal.App.5th 440.)

California’s Various Sanctuary Laws.

The State of California enacted three laws to protect its residents from federal immigration enforcement:

  • AB 450 (Gov. Code §§ 7285.1, 7285.2, 7285.3; Lab. Code §§ 90.2, 1019.2) requires employers to alert employees before federal immigration inspections;
  • AB 103 (Gov. Code § 12532, subdivision (b)) imposes inspection requirements on facilities that house civil immigration detainees;
  • SB 54 (Gov. Code §§ 7282, 7282.5, 7284; repeals Health & Saf. Code § 11369 relating to law enforcement) limits cooperation between state and local law enforcement and federal immigration authorities.

The United States of America challenged these enactments under the supremacy clause and moved to enjoin enforcement. A federal trial court concluded the United States was unlikely to succeed on the merits and denied a large part of the motion for a preliminary injunction. The Ninth Circuit affirmed in part and reversed in part, holding:

  • AB 450—denial of the preliminary injunction affirmed because this law neither burdens the federal government nor conflicts with federal activities;
  • AB 103—denial of the preliminary injunction affirmed as to the provisions that duplicate inspection requirements otherwise mandated under California law, and reversed as to a provision in Government Code § 12532, subdivision (b)(1)(C) that “discriminates against and impermissibly burdens the federal government”, and is unlawful under the doctrine of intergovernmental immunity;
  • SB 54—denial of the preliminary injunction affirmed because this law is consistent with California’s prerogatives under the Tenth Amendment and the anticommandeering rule.

(United States v. State of California (9th Cir., Apr. 18, 2019) 2019 U.S. LEXIS 11275.)

Designation of Rebuttal Experts.

As a result of a fall from a bridge, plaintiff was rendered paraplegic. He and his wife sued 12 defendants in seven causes of action. The sole remaining defendant disclosed two experts it expected to call at trial, and plaintiff disclosed seven. Defendant then decided it needed more experts, and disclosed five more. Upon motion by the plaintiff to strike defendant’s five newly disclosed experts, the trial court struck four of them. The defendant petitioned the Court of Appeal for extraordinary relief. Grating the petition for writ of mandate, the appellate court stated: “[Defendant] disclosed the experts it expected to call at trial. Then, when plaintiffs disclosed five other experts, and, it must be emphasized, also produced a life care plan, [defendant] retained and designated experts to rebut plaintiffs’ position, including its own life care plan. This is the precise reason why the Legislature codified the right to designate rebuttal experts.” (Du-All Safety, LLC v. Superior Court (Cal. App. 1st Dist., Div. 2, Apr. 18, 2019) 34 Cal.App.5th 485.)

Petition to Enforce No Contest Clause and Anti-SLAPP.

Plaintiff petitioned the probate court to enforce a no contest provision in a trust. The probate court granted the beneficiary’s special motion to strike the petition under the anti-SLAPP statute (Code Civ Proc., § 425.16). The Court of Appeal agreed with the trial court’s conclusion that the anti-SLAPP statute applies to a petition to enforce a no contest clause. However, the reviewing court found plaintiff met her burden under step two of the statute by showing of a probability of previling on her no contest petition. (Key v. Tyler (Cal. App. 2nd Dist., Div. 2, Apr. 19, 2019) 34 Cal.App.5th 505.)

Defenses, Objections and Requests for Suppression of Evidence Must Be Raised by Pre-trial Motion in Federal Court.

Police stopped a driver for failing to signal before making a turn. A passenger in the car was arrested and convicted of being a felon in possession of a firearm and ammunition. The passenger moved to suppress the gun and ammunition evidence because the driver had in fact signaled. The court found the officer more credible, denied the motion, and the passenger pled guilty. On appeal, the passenger argued that California law requires a driver to signal before making a turn only if another vehicle on the road may be affected by the movement. Affirming his conviction, the Ninth Circuit stated: “We have decided to publish in this case to clarify the standard of review that governs in the wake of the 2014 amendments to Federal Rule of Criminal Procedure 12. That rule requires certain ‘defenses, objections, and requests’— including a request for suppression of evidence—to be raised by pre-trial motion.” (United States v. Guerrero (9th Cir., Apr. 22, 2019) 2019 U.S. App. 11526.)

A “Technical” Violation of a Temporary Restraining Order Is Grounds for Issuing a Domestic Violence Restraining Order.

In issuing a temporary restraining order TRO, the court ordered a husband to not contact his wife and small child directly or indirectly. But during child custody exchanges at the police station, husband tried to detain wife. He wrote her a letter. He followed her. The trial court found these were mere technical violations of the TRO and denied wife’s request to issue a domestic violence restraining order (DVRO). The Court of Appeal reversed, ordering the trial court to make the necessary factual findings and that “if the court finds that the acts alleged by N. did, in fact, occur, the court shall issue the DVRO.” (N.T. v. H.T. (Cal. App. 4th Dist., Div. 3, Apr. 22, 2019) 34 Cal.App.5th 595.)

Previously we reported:
Dismissal of Securities Class Action Reversed; Scienter Not Required.

A federal trial court dismissed a securities class action under the Securities Exchange Act of 1934 (15 U.S.C. § 78n(e) brought by corporate shareholders because they failed to plead a strong inference of scienter for defendants’ alleged violations of § 14(e).  In reversing, the Ninth Circuit Court of Appeals stated: “We now hold that Section 14(e) of the Exchange Act requires a showing of negligence, not scienter. Accordingly, we reverse the dismissal of the complaint and remand the case to the district court for it to reconsider Defendants’ motion to dismiss under a negligence standard.” (Varjabedian v. Emulex Corporation (9th Cir., Apr. 20, 2018) 888 F.3d 399.)

The latest:

The U.S. Supreme Court dismissed a writ of certiorari in this case as being improvidently granted.(Emulex Corporation v. Varjabedian (U.S., Apr. 23, 2019) 2019 U.S. LEXIS 2942.) 

Killing Gray Wolves.

In 1974, the gray wolf was placed on the endangered species list because of increased human activity in Idaho, Montana, and Wyoming. In 1994, the gray wolf was introduced back into Idaho, and the federal Wildlife Service authorized the killing or removal of wolves identified as having preyed on livestock or other domestic animals. From 2011 to 2015, between 42 and 80 wolves were killed annually. Plaintiffs are conservationists who brought this action to enjoin the federal government’s participation in the killing of gray wolves in Idaho pending analysis under the National Environmental Policy Act (42 U.S.C. § 4321 et seq.; NEPA). They claim the federal government violated NEPA by failing to prepare an Environmental Impact Statement on its wolf management activities. A federal trial court dismissed the action for lack of standing, reasoning that the State of Idaho could engage in the same activities without the help of the federal government. Reversing, the Ninth Circuit concluded that whether Idaho would implement an identical program without the federal government is a matter of speculation. (Western Watersheds Project v. Grimm (9th Cir., Apr. 23, 2019) 2019 U.S. App. LEXIS 11717.)

Bank’s Self-dealing to the Detriment of Employees’ Retirement Funds.

A federal trial court granted partial summary judgment for the Department of Labor and held a bank and other defendants liablefor self-dealing. It seems the bank maintained a defined-contribution 401(k) employee profit-sharing plan and served as one of the plan’s fiduciaries. It kept no human records of its activities vis-à-vis the plan; rather, a computer automatically charged the plan a fee. Each time the topic of possible over-charging of the plan was brought up, the bank’s benefits committee prospectively reduced the fees charged by the bank, but never rebated any of the amounts previously received. The Ninth Circuit concluded the district court properly granted partial summary judgment because “the ‘reasonable compensation’ exemption under ERISA § 408(c)(2) does not apply to self-dealing by a fiduciary.” (Acosta v. City National Corporation (9th Cir., Apr. 23, 2019) 2019 U.S. App. LEXIS 11718.)

Classrooms Turned into Courtrooms.

The mother of a female student at a small private college reported to the college that her daughter was raped at an off-campus party. Pursuant to its detailed sexual assault policy, the college conducted an investigation and determined the evidence supported the rape allegation. The accused challenged the college’s determination by bringing a petition for writ of mandamus in the superior court. The court ruled the college did not give the accused a fair hearing and granted the petition. The college appealed. Affirming, the Court of Appeal held the college did not give him a fair hearing, while acknowledging that “burdensome hearing processes can ‘ “ ‘divert both resources and attention from a university’s main calling, that is education. Although a university must treat students fairly, it is not required to convert its classrooms into courtrooms.’ ” [Citation.]’ ” (Doe v. Westmont College (Cal. App. 2nd Dist., Div. 6, Apr. 23, 2019) 34 Cal.App.5th 622.)

General Contractor Held Liable for Injured Employee of Subcontractor.

Plaintiff, the employee of a subcontractor, was injured on the job. He sued the general contractor for negligence, and a jury found the general contractor 100 percent liable for plaintiff’s injuries. On appeal, the general contractor claimed error because the trial court instructed the jury with CACI No. 1009B, arguing that in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, the California Supreme Court used the term “affirmative contribution,” while the jury instruction uses the term “substantial factor.” The Court of Appeal acknowledged there are differing viewpoints on this issue, but found that any error was not prejudicial. The general contractor also claimed the trial court’s negligence per se instruction was erroneous because a violation of a Cal-OSHA regulation cannot be the basis for civil liability against a general contractor where compliance with that regulation was delegated to the subcontractor. The Court of Appeal held that argument lacked merit. (Strouse v. Webcor Construction, L.P. (Cal. App. 1st Dist., Div. 3, Apr. 23, 2019) 2019 Cal. App. LEXIS 377.)

Ambiguous Agreement and Classwide Arbitration.

The U.S. Supreme Court held in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. (2010) 559 U.S. 662 that a court may not compel arbitration on a classwide basis when an agreement is silent on the availability of class arbitration. In the present case, the nation’s high court considered whether the Federal Arbitration Act (9 U.S.C. §1 et seq.; FAA) similarly bars an order requiring class arbitration when an agreement is not silent, but rather ambiguous about the availability of class arbitration. The Supreme Court held that the FAA “requires more than ambiguity to ensure that the parties actually agreed to arbitrate on a classwide basis,” and “Courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis.” (Lamps Plus, Inc. v. Varela (U.S., Apr. 24, 2019) 2019 U.S. LEXIS 2943.)

Copyright Infringement Adequately Pled.

Plaintiff sued defendants for copyright infringement, alleging it owns copyrights for two lace designs, consisting of flowers, vines, leaves, and other elements arranged in a pattern. A federal trial court dismissed the action with prejudice, holding that the designs are not strikingly similar and that plaintiff failed to allege access. Reversing, the Ninth Circuit held plaintiff adequately pled striking similarity between the two designs. The appeals court also found plaintiff’s proposed amendment alleged several ways defendants had access to plaintiff’s designs, and that the trial court abused its discretion in denying plaintiff’s request to amend its complaint. (Malibu Textiles, Inc. v. Label Lane Int’l, Inc. (9th Cir., Apr. 24, 2019) U.S. App. LEXIS 11946.)

Freedom of Information Act Request.

The Federal Aviation Administration (FAA) found plaintiff ineligible for an Air Traffic Control Specialists position based on his performance on a screening test. Citing the Freedom of Information Act (5 U.S.C. § 552; FOIA), plaintiff requested “information regarding the empirical validation” of the screening test. A federal trial court held that the FAA had fulfilled its FOIA obligations by conducting a reasonable search for the requested information, and that the FAA properly withheld nine pages under the attorney work-product doctrine. Reversing, the Ninth Circuit found the FAA’s declarations did not sufficiently describe that the agency conducted a search reasonably calculated to uncover all relevant documents in response to the FOIA request. The appeals court also discussed Exemption 5 in FOIA that allows the government to withhold records that are “normally privileged in the civil discovery context,” such as documents covered by the attorney work-product privilege, and the consultant corollary, which treats communications from third party consultants as exemptions under Exemption 5 as if those communications came from the agency itself. The appeals court concluded: “[W]e join the Sixth Circuit in rejecting the consultant corollary to Exemption 5.” (Rojas v. Federal Aviation Administration (9th Cir., Apr. 24, 2019) 2019 U.S. App. LEXIS 11950.)

California Supreme Court Finds Class Action Need Not be Arbitrated.

Security guards at a baseball park filed a class action against a baseball team. The guards are usually discharged after baseball season or after some other special event. The guards contend under Labor Code § 201 they are entitled to, but do not receive, immediate payment of their final wages after each “discharge.” Labor Code § 203 allows them to seek penalties for the team’s failure to timely pay their wages, and they seek those penalties here. The baseball team moved to compel arbitration pursuant to the collective bargaining agreement. The trial court agreed with plaintiffs, and the Court of Appeal reversed. The California Supreme Court agreed with plaintiffs, and reversed the Court of Appeal’s decision, stating: “We conclude that, although the agreement between the union and the Giants may be relevant to this lawsuit and may need to be consulted to resolve it, the parties’ dispute turns on an interpretation of state law—namely, the meaning of ‘discharge’ under Labor Code section 201—rather than an interpretation of the agreement itself. Because no party has identified any provision of the agreement whose meaning is uncertain and that must be interpreted to resolve plaintiffs’ claim, this lawsuit is not preempted and state courts may decide it on the merits.” (Melendez v. San Francisco Baseball Associates LLC (Cal., Apr. 25, 2019) 2019 Cal. LEXIS 2818.)

Claim Preclusion.

In a previous action in Florida, plaintiff arbitrated and lost against the present defendant’s wholly-owned subsidiary.A federal district court confirmed the award , and the Eleventh Circuit Court of Appeals affirmed the district court’s judgment. The district court dismissed the present action, and the Ninth Circuit affirmed, stating: “When a federal court sitting in diversity confirms an arbitration award, the preclusion law of the state where that court sits determines the preclusive effect of the award. Because a district court in Florida confirmed the award here, Florida law applies. Under Florida law, claim preclusion bars NTCH-WA’s claims because NTCH-WA is seeking the same remedy it sought in arbitration, the evidence needed to prove NTCH-WA’s claims here is the same, ZTE Corp. is in privity with its wholly-owned subsidiary ZTE USA, and the parties are suing in the same capacity as in the arbitration.” (NTCH-WA v. ZTE Corporation (9th Cir., Apr. 25, 2019) 2019 U.S. App. LEXIS 12283.)

Trial Court Erred in Instructing the Jury on the Firefighter’s Rule.

Defendant is a company that rented the garden of a private home for an event. The contract required the company to pay for a site representative whose main duty was to protect the property, but who also gave tours to small groups at the event. Plaintiff is a site representative who was giving a tour, but defendant’s security guards sent a larger group than they were instructed to send. Because of the larger group, plaintiff stood in a different spot than usual. He lost his footing and fell down a hill, sustaining severe injuries. Plaintiff sued defendant for negligence and premises liability. The trial court instructed the jury on the firefighter’s rule, a subset of the doctrine of primary assumption of the risk. The jury found in defendant’s favor. Reversing, the Court of Appeal stated: “The circumstances presented in this case do not fit under the primary assumption of risk doctrine, as [plaintiff] was not expressly hired to manage the hazardous condition that injured him. Nor do we find any public policy in favor of applying such a bar.” (Harry v. Ring the Alarm, LLC (Cal. App. 2nd Dist., Div. 4, Apr. 25, 2019) 2019 Cal. App. LEXIS 383.)

“When morality comes up against profit, it is seldom that profit loses,” Shirley Chisholm.

For eligible Medicare beneficiaries, Medicare pays around $200-250/day for hospice care. To be eligible, a patient must be certified as terminally ill by two licensed physicians. A defendant physician was found guilty of fraudulently billing for hospice care by falsifying records about patients being terminally ill, profiting in the hundreds of thousands of dollars. The Ninth Circuit found the evidence sufficient to support defendant’s conviction. (United States v. Wijegoonaratna (9th Cir., Apr. 26, 2019) 2019 U.S. App. LEXIS 12416.)

Statement Attributed to Patient in Medical Record Was Not a Dying Declaration.

A criminal defendant was convicted of felony hit and run driving causing the death of another. The victim suffered a severe head injury and died after two weeks in the hospital. The defense sought admission at trial of a hospital record containing the following statement attributed to the victim: “However, patient states he was not hit by a car and actually was assaulted with fists to the head.” Defendant argued it was admissible as a business record or alternatively as impeachment of the coroner. Later, after the court ruled against admission of the statement, the defense argued it was a dying declaration, and the prosecution argued there was no evidence the victim believed he was dying at the time. The emergency room nurse who made the entry in the medical record a year earlier had no memory of the circumstances. The trial court concluded it did not qualify as a dying declaration. Affirming the judgment of conviction, the Court of Appeal stated: “We agree with the trial court’s conclusion there was no evidence to support a finding the victim believed his death was imminent at the time the alleged statement was made. ‘A dying declaration constitutes an exception to the hearsay rule if the statement was made on personal knowledge . . . and under a sense of immediately impending death.’ ” (People v. Ramirez (Cal. App. 2nd Dist., Div. 8, Apr. 26, 2019) 2019 Cal. App. LEXIS 386.)

U.S. Government May Not be Immune From Tort Action.

A boater drove his boat into an area where a downed power line had fallen into the Tennessee River. He sued the government-owned corporation responsible for the power line, the Tennessee Valley Authority (TVA ). The Tennessee Valley Authority Act of 1933 specifically waives sovereign immunity where it states the TVA “may sue and be sued in its corporate name.” But the TVA argues it is nonetheless immune from all tort actions arising from the performance of discretionary functions. A federal trial court granted the government’s motion to dismiss, and the Eleventh Circuit Court of Appeals affirmed. The U.S. Supreme Court reversed and remanded, stating: “The TVA’s sue-and-be-sued clause is broad and contains no such limit. Under the clause—and consistent with our precedents construing similar ones—the TVA is subject to suits challenging any of its commercial activities. The law thus places the TVA in the same position as a private corporation supplying electricity. But the TVA might have immunity from suits contesting one of its governmental activities, of a kind not typically carried out by private parties.” (Thacker v. Tennessee Valley Authority (U.S., Apr. 29, 2019) 2019 U.S. LEXIS 3149.)

Hearsay in Failure to Promote Claim.

Plaintiff, an acting director of a call center for a communications company, was not selected for the director position. He was later terminated and brought suit against the company for failure to promote and wrongful termination. The company moved for summary judgment, and in opposition plaintiff offered the statement of his former supervisor who had told him why he wasn’t promoted: “She had made it a—that the statement saying that she felt I was qualified for the job. She tried to get me into the director role; had three things that were against me, and her exact verbiage—I remember this clearly—is ‘You have three things going against you. You’re a former Verizon employee, okay. You’re not white. And you’re not female.’ ” The trial court sustained a hearsay objection to the statement and granted summary judgment in favor of the employer. The Ninth Circuit held the trial court properly granted the motion on the wrongful termination claim, but erred with regard to the failure to promote claim, finding the statement was evidence of pretext and stating: “Because [plaintiff] met his burden of producing evidence of pretext and creating a genuine dispute of material fact, the district court erred in granting summary judgment on [plaintiff’s] failure-to-promote claim.” (Weil v. Citizens Telecom Services Co. (9th Cir., Apr. 29, 2019) 2019 U.S. App. LEXIS 12666.)

Default on Mortgage Loan That Had Already Been Modified After a Previous Default.

Borrowers modified the original mortgage loan terms after a default. The modification deferred certain amounts due on the original loan. Borrowers then defaulted on the modified loan. The question was whether the borrowers must pay the deferred amounts due on the original loan in order to cure of the latest default under Civil Code § 2924c. The trial court answered “yes.” The Court of Appeal disagreed, reversing and holding the borrowers may cure the latest default by making up the missed modified payments along with required fees and costs. (Taniguchi v. Restoration Homes, LLC (Cal. App. 1st Dist., Div. 2, Apr. 30, 2019) 2019 Cal. App. LEXIS 396.)

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