Litigation Update: May 2023

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, Colin P. Cronin, Jonathan Grossman, Jennifer Hansen, Gary A. Watt, Ryan Wu
Previously We Reported: Education for Children with Behavioral Disabilities

Plaintiff is an elementary school student who has attention deficit hyperactivity disorder and severe, disability-related behavioral issues. As early as kindergarten, his mother was regularly called to take him home early because his behaviors interfered with other students. His mother requested and was denied a one-to-one aide to accommodate his needs and enable him to participate with his peers. He sued under the Americans with Disabilities Act (42 U.S.C. § 12182(b); ADA) seeking damages for harms stemming from his repeated exclusion from school and for abusive treatment he experienced when he attended. The district court dismissed the action. Reversing, the Ninth Circuit found plaintiff’s claim for discriminatory exclusion from the classroom to be separate and apart from intentional discrimination under the ADA and from his right to a free appropriate public education. (D.D. v. Los Angeles Unified School District (9th Cir., Dec. 31, 2020) 984 F.3d 773.)

Then this happened:

Plaintiff May Sue For Damages Without Exhausting Procedural Requirements Under the Individuals With Disabilities Education Act (IDEA).

The Individuals with Disabilities Education Act (20 U.S.C. §1400 et seq.; IDEA) seeks to ensure that children with disabilities receive a free and appropriate public education. The question before the U.S. Supreme Court was the extent to which children with disabilities must exhaust administrative procedures under the IDEA before seeking relief under other federal antidiscrimination statutes, such as the Americans with Disabilities Act of 1990 (104 Stat. 327, 42 U.S.C. §12101 et seq.; ADA). Concluding plaintiff could sue under the ADA, the nation’s highest court stated: “[IDEA’s] administrative exhaustion requirement applies only to suits that ‘see[k] relief . . . also available under’ IDEA. And that condition simply is not met in situations like ours, where a plaintiff brings a suit under another federal law for compensatory damages—a form of relief everyone agrees IDEA does not provide.” (Luna Perez v. Sturgis Public Schools (U.S., Mar. 21, 2023) 143 S.Ct. 859.)

The latest:

The U.S. Supreme Court granted certiorari in D.D. v. Los Angeles Unified School District and remanded the case to the Ninth Circuit for further consideration in light of Luna Perez v. Sturgis Public Schools (U.S., Mar. 21, 2023) 143 S.Ct. 859. (D.D. By and Through Ingram v. Los Angeles Unified School District (U.S., Apr. 3, 2023) 2023 WL 2744905.)

Previously We Reported: School District Cannot Set Double Standards.

The Fellowship of Christian Athletes (“FCA”) requires students serving in leadership roles to abide by a Statement of Faith, which includes the belief that sexual relations should be limited within the context of a marriage between a man and a woman. The San Jose Unified School District revoked FCA’s status as an official student club at its high schools, claiming that FCA’s religious pledge requirement violates the School District’s non-discrimination policy. Reversing the district court’s denial of FCA’s motion for a preliminary injunction, the Ninth Circuit stated: “While this clash of values may pose a difficult policy choice, the legal outcome is much more straightforward based on the record before us. Under the First Amendment, our government must be scrupulously neutral when it comes to religion: It cannot treat religious groups worse than comparable secular ones. But the School District did just that. The School District engaged in selective enforcement of its own non-discrimination policy, penalizing FCA while looking the other way with other student groups. For example, the School District blessed student clubs whose constitutions limited membership based on gender identity or ethnicity, despite the school’s policies barring such restricted membership. The government cannot set double standards to the detriment of religious groups only. We thus reverse the district court’s denial of FCA’s motion for preliminary injunction and direct the district court to enter an order reinstating FCA as an official student club.” (Fellowship of Christian Athletes v. San Jose Unified School District (9th Cir., Aug. 29, 2022) 46 F.4th 1075.)


The Ninth Circuit ordered that this matter be reheard en banc. The three-judge panel opinion was vacated.  (Fellowship of Christian Athletes v. San Jose Unified School District Board of Education (9th Cir., Jan. 23, 2023) 59 F.4th 997 (mem.).)

The latest:

A majority of active Ninth Circuit judges voted to issue an injunction pending resolution of this appeal. The court ordered San Jose Unified School District to recognize student chapters affiliated with the Fellowship of Christian Athletes, and the injunction is to remain in effect pending resolution of the appeal. (Fellowship of Christian Athletes v. San Jose Unified School District Board of Education (9th Cir., Apr. 3, 2023) 64 F.4th 1024.)

State Employee Does Not Want to Take Oath Required Under California Constitution.

The California Constitution requires all public employees, except those “as may be by law exempted,” to swear or affirm to “support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic” and to “bear true faith and allegiance” to those constitutions. (Cal. Const. art. XX, § 3.) In 2016, plaintiff began working for the California Franchise Tax Board without first signing a loyalty oath. The next year, she applied to the California Office of the State Controller and was offered a higher-paying position. The controller’s office asked her to take California’s loyalty oath, and plaintiff requested an accommodation to sign the oath with an addendum specifying that her allegiance was first and foremost to God and that she would not take up arms. Plaintiff, a devout Jehovah’s Witness, objected to the loyalty oath because she believed it would violate her religious beliefs by requiring her to pledge primary allegiance to the federal and state governments and to affirm her willingness to take up arms to defend them. The district court dismissed her action. Reversing, the Ninth Circuit  concluded that plaintiff “ha[d] stated claims under Title VII and the California Fair Employment and Housing Act, and she should have been granted leave to amend her claims under the Free Exercise Clauses of the federal and state constitutions. Although the state employer has asserted defenses that might ultimately prevail, none of them c[ould] be considered at the motion to dismiss stage.” (Bolden-Hardge v. Office of California State Controller (9th Cir., Apr. 3, 2023) 63 F.4th 1215.)

Arbitration Denied Where Moving Party Was Not Party to the Arbitration Agreement.

Defendant Ford Motor Company (FMC) appealed an order denying its motion to compel arbitration of plaintiffs’ claims relating to alleged defects in vehicles FMC manufactured. Affirming, the Court of Appeal stated: “We agree with the trial court that FMC could not compel arbitration based on plaintiffs’ agreements with the dealers that sold them the vehicles. Equitable estoppel does not apply because, contrary to FMC’s arguments, plaintiffs’ claims against it in no way rely on the agreements. FMC was not a third party beneficiary of those agreements as there is no basis to conclude the plaintiffs and their dealers entered into them with the intention of benefitting FMC. And FMC is not entitled to enforce the agreements as an undisclosed principal because there is no nexus between plaintiffs’ claims, any alleged agency between FMC and the dealers, and the agreements.” (Ford Motor Warranty Cases (Cal. App. 2nd Dist., Div. 8, Apr. 4, 2023) 89 Cal.App.5th 1324.)

If the Jury Should Not Be Excused, Speak Up Before the Court Excuses the Jurors. 

In a criminal trial, the jury returned a verdict finding the defendant guilty of first degree murder. The trial court told the jurors they had completed their jury service, thanked them, and told them they could speak about their jury service. Jurors were in the process of leaving the court when the prosecutor informed the court that the prior serious felony conviction remained to be tried. The court turned to the bailiff and said: “Hang on. Can you tell the jurors to wait[?] Tell them they can’t leave yet.” Thereafter, the proceedings resumed, and the jury found it to be true that the defendant had been convicted of the prior serious felony. The Court of Appeal reversed the true finding concerning the prior conviction, stating: “[W]e conclude that the court lost jurisdiction over the jurors before they were ostensibly reconvened, thus rendering their verdict as to appellant’s prior serious felony conviction a nullity.” (People v. Jones (Cal. App. 1st Dist., Div. 5, Apr. 4, 2023) 89 Cal.App.5th 1344.)

Judge Abused Discretion in Refusing to Recall Prison Sentence.

A criminal defendant convicted of murder and sentenced to life in prison has advanced incurable pancreatic cancer, and has a life expectancy of one year or less. The prisoner’s primary care doctor testified the man is in a wheelchair, has lost a lot of weight, cannot get onto the exam table, and “is barely able to get out of the chair.” The Department of Corrections and Rehabilitation recommended that the defendant be granted compassionate release under Penal Code § 1172.2. The trial court declined to recall the man’s sentence on the ground that he posed an unreasonable risk of danger to public safety. The Court of Appeal concluded that the trial court abused its discretion and issued a peremptory writ of mandate commanding the lower court to vacate its decision. (Nijmeddin v. Superior Court of Monterey County (Cal. App. 6th Dist., Apr. 5, 2023) 90 Cal.App.5th 77.)

Former President of Peru to Be Extradited to Face Bribery Charges in Peru.

Peru sought to extradite its former president from the United States to face criminal charges in Peru for allegedly accepting millions of dollars in bribes during his presidency. The former president petitioned for a writ of habeas corpus, but the district court denied the petition. The former president appealed. The Ninth Circuit weighed the four factors that guide consideration of whether or not to stay extradition pending appeal, and concluded the public interest would be served by the United States complying with a valid extradition application because proper compliance promotes relations between the two countries, and enhances efforts to establish an international rule of law and order. (Manrique v. Kolc (9th Cir., Apr. 5, 2023) 64 F.4th 1106.)

Prohibition Against Honking Horn

Plaintiff brought a First Amendment challenge to a California law that prohibits honking a vehicle’s horn except when reasonably necessary to warn of a safety hazard. The present law is an adaptation from a 1913 law, enacted five years after the introduction of the Model T Ford. Here, plaintiff drove her car past a group of protesters gathered outside a government official’s office— a protest that, minutes earlier, she herself had been attending. As she drove down the street, which was located between a residential area and a six-lane freeway, plaintiff honked in support of the protesters. A sheriff’s deputy pulled her over and gave her a citation for misuse of a vehicle horn under Vehicle Code § 27001. Later, her citation was dismissed when the sheriff’s deputy failed to attend the traffic court hearing. But plaintiff contended she has refrained from honking in support of political protests since then to avoid being cited again. The district court entered summary judgment for California. Affirming, the Ninth Circuit held “Section 27001 is narrowly tailored to advancing California’s substantial interest in traffic safety, and therefore that it passes intermediate scrutiny.” (Porter v. Martinez (9th Cir., Apr. 7, 2023) 64 F.4th 1112.)

Dangerously Parked Scooters

The City of Los Angeles granted a motorized scooter rental business a permit, under which the business agreed to have staff available 24 hours a day for emergency scooter removals to remove improperly parked scooters within two hours. Plaintiff was walking along a crowded sidewalk and did not see a scooter sticking out from behind a trash can. She tripped on the scooter, fell, and sustained serious physical injuries. She sued both the city and the scooter business, and the trial court dismissed the case on demurrer, concluding neither the scooter business nor the city owed plaintiff a duty of care.  The Court of Appeal reversed as to the scooter company, but affirmed as to the city, stating: “[H]aving deployed its dock-less scooters onto public streets, Bird’s general duty encompasses an obligation, among other things, to use ordinary care to locate and move a Bird scooter when the scooter poses an unreasonable risk of danger to others.” (Hacala v. Bird Rides, Inc. (Cal. App. 2nd Dist., Div. 3, Apr. 10, 2023) 90 Cal.App.5th 292.)

Business Loss During Covid

A restaurant had business interruption insurance. On March 17, 2020, the Orange County health officer issued an order that, among other things, “prohibited restaurants from serving food on their premises and prohibited all gatherings of people.” The next day, the county health officer issued an amended health order and guidance requiring “[a]ll restaurants and other business establishments that serve food shall close all onsite [sic] dining. Pickup, delivery and drive thru [sic] services may remain open. . . .” The restaurant submitted a claim to defendant, its insurance company, and defendant denied coverage because the restaurant did not claim its property sustained any direct physical loss or damage and the virus exclusion under the policy barred coverage. The trial court sustained defendant’s demurrer without leave to amend. Affirming, the Court of Appeal stated: “[W]e conclude appellant has shown there is potential coverage under the policy, but respondent has shown that an exclusion in the policy applies to preclude coverage as a matter of law.” (Coast Restaurant Group, Inc. v. AmGUARD Insurance Company Ins. Co. (Cal. App. 4th Dist., Div. 3, Apr. 10, 2023) 90 Cal.App.5th 332.)

The Probate Exception

In Marshall v. Marshall (2006) 547 U.S. 293, the U. S. Supreme Court held the probate exception reserves to state probate courts the administration of a decedent’s estate and precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. Here, plaintiff provided the decedent with tax and estate planning services. Plaintiff’s compensation was based on savings realized, known as incentive fees, due after death. But when his client died and plaintiff filed his claim for fees due in a Maryland probate court, his fees were disallowed. So, plaintiff sued the estate in federal court. The district court dismissed the case for lack of subject matter jurisdiction, citing the probate exception. The Ninth Circuit decided that “because the probate exception does not strip federal court jurisdiction over this routine contract dispute, and because at this stage of the proceedings Silk has made a prima facie case for personal jurisdiction over the Estate, we reverse and remand for further proceedings.” (Silk v. Bond (9th Cir., Apr. 10, 2023) 65 F.4th 445.)

Statute of Limitations in Security Fraud Action.

Plaintiffs alleging securities fraud must bring their claims within “2 years after the discovery of the facts” that give rise to their complaint. (28 U.S.C. § 1658(b)(1).) A district court ruled one of the plaintiffs here failed to meet this timeline because the claim arose from allegedly fraudulent statements that were published roughly five years before filing its complaint. Reversing, the Ninth Circuit stated: “We disagree; the allegedly fraudulent statements, on their own, were insufficient to start the clock on the statute of limitations. Instead, we conclude that Maryland Electrical could not have discovered the facts necessary to plead its claims until after the publication of a Securities and Exchange Commission (“SEC”) [cease and desist] order in 2020. As a result, we hold that Maryland Electrical’s complaint was timely under § 1658(b)(1), and we reverse and remand.” (York County on Behalf of County of York Retirement Fund v. HP, Inc. (9th Cir., Apr. 11, 2023) 65 F.4th 459.)

Case Against County Prosecutor for Collecting DNA of Misdemeanants to Continue in Trial Court

Plaintiffs are professors at the University of California, Irvine, and taxpaying residents of Orange County. They filed a taxpayer lawsuit under Code of Civil Procedure § 526a against Todd Spitzer in his capacity as the Orange County District Attorney (OCDA) and the County of Orange. Plaintiffs sought to enjoin defendants from operating an allegedly unconstitutional DNA collection program that authorizes county prosecutors to obtain DNA samples from persons charged with misdemeanors. Specifically, county prosecutors have offered to drop or reduce charges or punishments in exchange for the alleged misdemeanants’ DNA, which the OCDA stores indefinitely in its own databank. Plaintiffs claimed the OCDNA program violated alleged misdemeanants’ rights to privacy, counsel, and due process, and violated the unconstitutional conditions doctrine. The trial court sustained defendants’ demurrer to plaintiffs’ first amended complaint without leave to amend. Reversing in part, the Court of Appeal stated: “We agree the court erred by sustaining the demurrer as to the claims based on the right to privacy, the right to counsel, and due process. These claims assert both facial and as-applied challenges to the OCDNA program. Plaintiffs have sufficiently alleged the OCDNA program, as implemented by the OCDA, is unconstitutional. In particular, they have pled the waivers obtained from alleged misdemeanants to participate in the OCDNA program are not made knowingly or voluntarily.” (Thompson v. Spitzer (Cal. App. 4th Dist., Div. 3, Apr. 11, 2023) 90 Cal.App.4th 436.)

Code of Civil Procedure § 998’s Cost Shifting Penalty Applies Even if Case Is Settled.

Early in the case, defendant Hyundai Motor America made two offers to compromise under Code of Civil Procedure § 998, both of which were rejected. Litigation continued. After a jury was sworn in, plaintiffs settled with Hyundai for a principal amount that was less than defendant’s second § 998 offer. The parties elected to leave the issue of costs and attorney fees for the trial court to decide upon motion. Under the settlement agreement, once the issue of costs and attorney fees was resolved and payment was made by defendant, plaintiffs would dismiss their complaint with prejudice. The trial court ruled § 998 did not apply because the parties settled prior to trial. Reversing, the Court of Appeal stated: “This case presents the novel question of whether section 998’s cost-shifting penalty provisions apply when an offer to compromise is rejected and the case ends in settlement. Under the facts of this case, we hold that it does and therefore reverse the order of the trial court.” (Madrigal v. Hyundai Motor America (Cal. App. 3rd Dist., Apr. 11, 2023) 90 Cal.App.5th 385.)

Trial Setting Preference.

Petitioner filed a motion for trial setting preference under Code of Civil Procedure § 36 on September 22, 2022. The motion was accompanied by a declaration from petitioner explaining she was 73 years old, suffered from asthma and hypertension, had recently undergone kidney surgery, and was receiving dialysis. Real party in interest raised concerns regarding completing discovery and pretrial motions under such an accelerated schedule, but did not challenge petitioner’s eligibility to request trial setting preference. The superior court granted the motion, but thereafter declined to set a trial date within 120 days. Issuing a peremptory writ of mandate, the Court of Appeal held: “Having granted trial setting preference, respondent superior court was required to set trial within 120 days.” (Pabla v. Superior Court (Cal. App. 5th Dist., Jan. 19, 2023) 90 Cal.App.5th 599.)

Constitutional Challenge to the Structure of Two Federal Agencies May Be Brought in Federal District Court.

In two cases involving enforcement actions by both the Securities and Exchange Commission and the Federal Trade Commission, plaintiffs contended the two agencies, as structured, are unconstitutional in much of their work. As prescribed by statute, a party makes its claims first within the commission itself, and then (if needed) in a federal court of appeals. The parties here, however, sidestepped that review scheme. Seeking to stop the administrative proceedings, they instead brought their claims in federal district court. The question presented to the U.S. Supreme Court was whether the federal district courts have jurisdiction to hear those suits—and so to resolve the parties’ constitutional challenges to the Commissions’ structures. The nation’s high court answered that question as follows: “The answer is yes. The ordinary statutory review scheme does not preclude a district court from entertaining these extraordinary claims.” (Axon Enterprise, Inc. v. Federal Trade Commission (U.S., Apr. 14, 2023) 598 U.S. 175.)

Despite Heroism, Petitioner Ordered to Be Removed from the United States.

Petitioner entered the United States without authorization after he was convicted of possession of a controlled substance for sale. He was ordered removed from the country in absentia. In May 2008, he volunteered at a school festival in Granada Hills, California. A shooter began firing at attendees of the festival, and petitioner tackled him and knocked his gun away. He also helped other good samaritansSamaritans restrain the shooter and detain him until law enforcement officers arrived. Following the shooting, petitioner cooperated with law enforcement and provided investigators with information about the crime, which led to the ultimate conviction of the shooter on counts of attempted murder, assault with a firearm, and felon in possession of a firearm. In December 2010, the Department of Homeland Security apprehended petitioner and reinstated his 1996 removal order. To avoid removal, petitioner applied for a U-visa. The United States Citizenship and Immigration Services (“[USCIS”)] denied his U-visa application and ordered him removed. The Ninth Circuit Court of Appeals concluded that by all accounts, petitioner demonstrated remarkable courage by intervening to stop an active shooter, and his efforts to care for his wife were equally worthy of praise, but ruled against him, stating that “however compelling his objections to USCIS’s denial of a waiver of inadmissibility may be, judicial review of that decision was barred by 8 U.S.C. § 1252(a)(2)(B)(ii).” (Vega v. United States Citizenship and Immigration Services, Department of Homeland Security (9th Cir., Apr. 14, 2023) 65 F.4th 469.)

City’s Code Preempted. 

The City of Berkeley prohibited installation of natural gas piping within newly constructed buildings. But the federal Energy and Conservation Act (42 U.S.C. § 6297(c)) expressly preempts state and local regulations concerning the energy use of many natural gas appliances. The district court dismissed plaintiffs’ action against the city. The Ninth Circuit noted that the city’s code rendered gas appliances useless and reversed, stating: “By completely prohibiting the installation of natural gas piping within newly constructed buildings, the City of Berkeley has waded into a domain preempted by Congress.” (California Restaurant Association v. City of Berkeley (9th Cir., Apr. 17, 2023) 65 F.4th 1045.)

New Jersey May Unilaterally End Compact With New York. 

Under Article I, §10, of the Constitution, each State possesses the sovereign authority to enter into a compact with another State, subject to Congress’s approval. To address organized crime at the port of New York and New Jersey, both states enacted legislation in 1953 to form the Waterfront Commission Compact. In 2018, after concluding that the decades-old Compact had outlived its usefulness, New Jersey sought to withdraw from the Compact. New York opposed New Jersey’s withdrawal, contending that the Compact does not allow either State to unilaterally withdraw. The United States Supreme Court held in favor of New Jersey, stating: “In sum, background principles of contract law, reinforced here by principles of state sovereignty and the fact that the States did not intend for the Compact to operate forever, indicate that New Jersey may unilaterally withdraw from the Waterfront Commission Compact.” (New York v. New Jersey (U.S., Apr. 18, 2023) 598 U.S. 218.)

I Can’t Believe It’s Not Butter. 

Plaintiffs sued defendant manufacturer of a butter-flavored vegetable oil dispensed in pump-action squirt bottles, contending the product’s label made misrepresentations about fat and calorie content based on artificially low serving sizes. The district court dismissed the action. Affirming, the Ninth Circuit held: “We affirm the district court’s dismissal of plaintiffs’ claims because the federal Food Drug and Cosmetic Act (FDCA) expressly preempts them.” (Pardini v. Unilever United States, Inc. (9th Cir., Apr. 18, 2023) 65 F.4th 1081.)

DNA Testing Requested by Convicted Murderer. 

A jury found a criminal defendant guilty of murder in 1996. In 2014, the defendant requested that 40 pieces of evidence, including the belt used to strangle the victim, be tested for DNA, contending that DNA testing would help identify the true perpetrator. A Texas state trial court denied the defendant’s motion and the Texas appellate court affirmed the trial court’s order. The defendant next sued in federal court under 42 U.S.C. §1983, asserting that Texas’s post-conviction DNA testing law failed to provide procedural due process. Thereafter, the district court dismissed defendant’s complaint and a federal appeals court affirmed that dismissal on the ground the § 1983 suit was filed too late. Reversing, the U.S. Supreme Court held: “[T]he statute of limitations begins to run at the end of the state-court litigation.” Thus, as the high court explained: “In Reed’s case, the statute of limitations began to run when the Texas Court of Criminal Appeals denied Reed’s motion for rehearing. Reed’s §1983 claim was timely.” (Reed v. Goertz (U.S., Apr. 19, 2023) 143 S.Ct. 955.)

Foreign Bank May Be Sued by the United States. 

The United States indicted plaintiff, a bank owned by the Republic of Turkey, for conspiring to evade U. S. economic sanctions against Iran. The United States brought the prosecution in the U.S. District Court for the Southern District of New York. Plaintiff contended that the indictment should be dismissed because the general federal criminal jurisdiction statute (18 U.S.C. § 3231) does not extend to prosecutions of instrumentalities of foreign states such as plaintiff. Plaintiff alternatively argued that the Foreign Sovereign Immunities Act of 1976 provides instrumentalities of foreign states with absolute immunity from criminal prosecution in U.S. courts. Rejecting plaintiff’s arguments, the U.S. Supreme Court stated: “We disagree with [plaintiff] on both points. We hold that the District Court has jurisdiction under 18 U. S. C. §3231 over the prosecution of [plaintiff]. We further hold that the Foreign Sovereign Immunities Act does not provide immunity from criminal prosecution. With respect to an additional common-law immunity argument raised by [plaintiff], we vacate the judgment of the Court of Appeals and remand.” (Turkiye Halk Bankasi A.S. v. United States (U.S., 2023) 143 S.Ct. 940.)

Injunction Against Vaccination Requirement for Those Working on Federal Contracts Dissolved. 

In the midst of the COVID-19 pandemic—and faced with a rising death toll and lost work hours during a recession—President Biden invoked his authority under the Procurement Act. He used that authority to direct federal agencies to include in certain contracts a clause requiring covered contractor employees to follow COVID-19 safety protocols, including vaccination requirements, for employees to be eligible to work on federal government projects. The president’s delegated executive officer found that requiring vaccination against COVID-19 would reduce absenteeism, lower cost overruns, and prevent delays on government projects. Plaintiffs sued to enjoin the vaccination requirement. The district court granted a permanent injunction against the vaccination mandate, effective in any contract that either involved a party domiciled or headquartered in Arizona and/or was performed “principally” in Arizona. Reversing the grant of the injunction, the Ninth Circuit stated: “The President, when faced with an unprecedented pandemic that has claimed millions of lives and caused billions of dollars of productivity losses, issued a [m]andate requiring that certain employees of contractors working on federal projects be vaccinated against the disease that resulted in the pandemic. The President appropriately relied on a statute that gave him the necessary flexibility and broadranging authority to ensure economy and efficiency in federal procurement and contracting. [¶] We REVERSE the district court’s grant of a permanent injunction and dissolve the injunction.” (Mayes v. Biden (9th Cir., Apr. 19, 2023) 2023 WL 2997037.)

Amazon’s Motion to Compel Arbitration of Employee’s Lawsuit Denied. 

Plaintiff, a driver for Amazon, contended that defendant Amazon monitored and wiretapped drivers’ conversations when they communicated during off hours in closed Facebook groups. The district court denied Amazon’s motion to compel arbitration, holding the dispute did not fall within the scope of the parties’ arbitration agreement, which covered “any dispute or claim . . . arising out of or relating in any way to this Agreement, including . . . participation in the program or . . . performance of services.” Affirming denial of Amazon’s motion to compel arbitration, the Ninth Circuit stated: “Amazon’s alleged misconduct existed independently of the contract and therefore fell outside the scope of the arbitration provision in the 2016 [Terms of Service]. The district court therefore correctly denied Amazon’s motion to compel arbitration.” (Jackson v., Inc. (9th Cir., Apr. 19, 2023) 65 F.4th 1093.)

To Defeat County Tax, Owner Did Not Have to Show the Property Was Situated Elsewhere, Only That It Was Not in the County. 

The County of Ventura imposed a tax on an aircraft that was permanently removed from California before the tax lien date of January 1 for tax year 2017. Following a bench trial, the court found the aircraft was not permanently removed from the county on the tax lien date because it had not established situs elsewhere. Reversing, the Court of Appeal stated: “Because the aircraft was removed from California with the intent that removal be permanent, and the aircraft never returned to California during the 2017 tax year, we conclude the aircraft was not ‘situated’ or ‘habitually situated’ in California. The tax imposed on the aircraft violates California law irrespective of whether the aircraft was situated and taxed in another state.” (Air 7, LLC v. County of Ventura (Cal. App. 2nd Dist., Div. 6, Apr. 19, 2023) 2023 WL 2997853.)

Case Against Pharmaceutical Companies Tossed. 

Plaintiffs alleged injuries from saxagliptin, the main ingredient found in two medications manufactured by defendant pharmaceutical companies. The trial court first granted defendants’ motion to exclude plaintiffs’ causation expert, then denied plaintiffs’ request to extend discovery to allow them to identify a new causation expert and then granted summary judgment in favor of defendants. Affirming, the Court of Appeal held the trial court did not abuse its discretion in excluding plaintiffs’ expert or in denying plaintiffs’ request for a continuance. It also concluded plaintiffs did not raise any questions of material fact in opposing the summary judgment. (Onglyza Product Cases (Cal. App. 1st Dist., Div. 4, Apr. 19, 2023) 2023 WL 3001055.)

Extended Child Visitation—Felony Conviction. 

A jury convicted a man of felony child abduction of his eight-year-old daughter after he failed to return the child to her mother in the United Kingdom (Cal. Pen. Code, § 278). The man argued that under § 278, “the people must show that there was a valid custody order in place.” He contended that the UK High Court’s return order was unenforceable in California. He was placed on probation for two years. The man appealed. Affirming, the Court of Appeal stated: “[U]nder section 278, the prosecution was not required to prove that a foreign court order or custody order used to prove [the defendant’s] guilt had previously been registered in California pursuant to the [Uniform Child Custody Jurisdiction and Enforcement Act].” (People v. Coulthard (Cal. App. 6th Dist., Apr. 19, 2023) 2023 WL 3000526.)

Nonparties Not Permitted to Intervene.

Three community stakeholders moved to intervene in several lawsuits challenging the authority of the California Coastal Commission to ban all off-highway vehicle use at Oceano Dunes State Vehicular Recreation Area. The trial court denied the motion on the ground that the stakeholders’ interests are adequately represented in the litigation. Affirming, the Court of Appeal stated: “We conclude that where a nonparty has interests in the outcome of a civil action that are identical to those of a party to the action, the nonparty must make a compelling showing of inadequate representation to be permitted to intervene as of right.” (Friends of Oceano Dunes v. California Coastal Commission, (Cal. App. 2nd Dist., Div. 6, Apr. 20, 2023) 2023 WL 3014597.)

Real Property Lot Merged With Other Lots. 

In 1854, a map containing marked blocks divided into lots was prepared by surveyors and filed with the Alameda County Recorder’s Office. It was recorded in 1869. Over the decades, various blocks and lots were conveyed. In 2015, plaintiff acquired two whole lots and a portion of a third by way of a single deed. The City of Oakland refused to issue a certificate of compliance for a single lot, and plaintiff sought extraordinary relief in the Court of Appeal. The court described the issue before it: “Given the parties’ articulated positions, the issue before us boils down to the following—since lot 18 was conveyed in conjunction with three or fewer other lots prior to the enactment of any local ordinance governing such subdivisions, is the lot presumptively legal for purposes of the Subdivision Map Act pursuant to [Government Code] section 66412.6, subdivision (a).” The court issued a writ finding the lot was presumptively lawful and ordering the city to issue a certificate of compliance. (Crescent Trust v. City of Oakland (Cal. App. 1st Dist., Div. 1) Apr. 23, 2023) 2023 WL 3018214.)

“[U]ltimately, Murphy’s claim of irreconcilability misses the forest for the trees,” Ninth Circuit Court of Appeals. 

The Antiquities Act grants the U.S. President broad authority to create, by presidential proclamation, national monuments from federal lands to protect sites of historic and scientific interest. (54 U.S.C. § 320301(a)–(b).) In contrast, the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act is much narrower in scope, addressing the use of timberlands in the southwest corner of Oregon. (43 U.S.C. § 2601 et seq.; O&C Act.) In January 2017, President Obama issued a Proclamation under the Antiquities Act expanding the Cascade-Siskiyou National Monument in southwestern Oregon. Murphy Timber Company and Murphy Timber Investments, LLC are Oregon timber businesses. Murphy sued the president over concerns the proclamation imposed a limitation on its timber supply. The district court granted summary judgment for the president. Affirming, the Ninth Circuit stated: “In short, the Proclamation is fully consistent with the O&C Act, which governs a much larger swath of timberlands in Oregon and gives the Secretary discretion in administering those lands within the Act’s directives.” (Murphy Company v. Biden (9th Cir., Apr. 24, 2023) 2023 WL 3050074.)

Game Developer’s Antitrust Action Against Apple Fails. 

Plaintiff game developer sued Apple, alleging antitrust violations, because Apple restricted app distribution on iOS devices to Apple’s App Store, along with other restrictions that limit app developers’ ability to communicate the availability of alternative payment options to users. The district court rejected plaintiff’s Sherman Act claims. Affirming, the Ninth Circuit held that plaintiff failed to establish, as a factual matter, its proposed market definition and the existence of any substantially less restrictive alternative means for Apple to accomplish the procompetitive justifications supporting iOS’s walled garden ecosystem. (Epic Games, Inc. v. Apple, Inc. (9th Cir., Apr. 24, 2023) 2023 WL 3050076.)

Plaintiff May Amend to Plead Virtual Contemporaneous Awareness of Injury to Her Daughter. 

Plaintiff was in her office and was on the phone with her daughter, who was driving at the time. Plaintiff heard a gasp from her daughter and then a collision. She overheard someone say “She breathed. I got a breath.” Plaintiff sued the city and the owners of property near the intersection where the accident occurred, alleging the collision occurred because the city created or permitted to exist, a dangerous condition of public property and because nearby property owners maintained vegetation and trees on their property which caused an unsafe obstruction to the view of vehicular traffic. She further alleged that because she was on the phone with her daughter and heard the sounds of the crash and its aftermath, she was “present, or virtually present” at the scene when the collision happened and had “contemporaneous, sensory awareness of the connection between the injury causing traffic collision and the grievous injury suffered by [plaintiff’s daughter] as a result . . . , thereby causing . . . [plaintiff] . . . serious emotional injuries and damages . . . .” The trial court sustained defendants’ demurrers without leave to amend, ruling that plaintiff’s allegations were e “insufficient to show that [plaintiff] had a contemporaneous awareness of the injury-producing event—not just the harm [plaintiff’s daughter] suffered, but also the causal connection between defendants’ tortious conduct and the injuries [plaintiff’s daughter]  suffered.” At oral argument before the Court of Appeal, plaintiff said she could allege additional facts, namely her familiarity with and knowledge of the intersection and the dangerous conditions created by defendants. Reversing, the appellate court stated: “Under these circumstances, Downey should be given an opportunity to allege facts establishing she had the requisite “‘contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury.’” [] Accordingly, we reverse the orders sustaining the demurrers without leave to amend and direct the trial court to overrule the demurrers with leave to amend.” (Downey v. City of Riverside (Cal. App. 4th Dist., Div. 1, Apr. 26, 2023) 2023 WL 3087500.)

Previously We Reported: Summary Judgment Reversed Because Trial Court Did Not Address Plaintiff’s Theory of Failure to Warn of a Dangerous Condition of Public Property

Plaintiff’s son was riding his bicycle in the city of Rancho Palos Verdes when he collided with a turning truck, suffering fatal injuries. Plaintiff sued the city, alleging a dangerous condition of public property under Government Code § 835.2. Plaintiff argued the city had created a dangerous condition by removing a bicycle lane from the area of the accident, and had failed to warn of that dangerous condition, leading to the accident and death. The city moved for summary judgment, asserting it was entitled to design immunity under § 830.6. The city relied on plans for a street resurfacing project, which it claimed did not include a bicycle lane at the site of the accident. The trial court granted the city’s motion, concluding the city had proved entitlement to design immunity as a matter of law. Reversing, the Court of Appeal agreed the city was entitled design immunity, but said the trial court did not address plaintiff’s theory that the city was liable for failing to warn of a dangerous condition, stating: “[W]e hold that even where design immunity covers a dangerous condition, it does not categorically preclude liability for failure to warn about that dangerous condition. We therefore vacate the judgment in part and remand to the trial court to consider appellant’s failure to warn theory.” (Tansavatdi v. City of Rancho Palos Verdes (Cal. App. 2nd Dist., Div. 4, Jan. 29, 2021)

 60 Cal.App.5th 423.)

The latest:

 When the California Supreme Court the court framed the question as whether design immunity bars all forms of claims that seek to impose liability for injuries resulting from a dangerous feature of a roadway. More specifically, the Court considered whether design immunity is limited to claims alleging that a public entity created a dangerous roadway condition through a defective design, or whether the statutory immunity also extends to claims alleging that a public entity failed to warn of a design element that resulted in a dangerous roadway condition. Affirming the judgment of the Court of Appeal, the Supreme Court stated: “In sum, we find nothing illogical about interpreting [Government Code] sections 830.6 and 835 in a manner that compels government entities to provide a warning when they know (or should know) that an approved roadway design presents concealed dangers to the public.” (Tansavatdi v. City of Rancho Palos Verdes (Cal., Apr. 27, 2023.)

Insurance Company Prevails in COVID Business Interruption Claim.

March 2020, the general manager of the Chumash Casino and Resort became aware employees were complaining of symptoms consistent with COVID-19. He concluded that the virus was present on and interacting with surfaces at the casino-resort. Its governing body ordered the casino closed. Chumash had an insurance policy with Lexington providing for “‘All Risk’ property damage coverage,” that contained “business interruption” coverage “[a]gainst loss resulting directly from interruption of business, services or rental value caused by direct physical loss or damage, as covered by this Policy to real and/or personal property insured by this Policy, occurring during the term of this Policy.” The resort-casino made a claim under the policy. The trial court granted summary judgment for the insurance company. Affirming, the Court of Appeal stated: “Had the Chumash Casino and Resort sustained property damage, it was required to specify what property was damaged and to submit a claim for the dollar amount of that loss. The absence of such information supports Lexington’s decision to deny coverage.” (Santa Ynez Band of Chumash Mission Indians v. Lexington Insurance Company (Cal. App. 6th Dist., Apr. 27, 2023) 2023 WL 3113648.)

Primary Assumption of Risk . . . Playing Golf. 

Plaintiff and his wife sued a golf course for negligence and loss of consortium premised upon defendant’s alleged breach of its duty of care by its failure to either remove or warn of a tree root. The trial court found the lawsuit barred by the primary assumption of risk doctrine and granted summary judgment. The court found that playing outdoor golf included the inherent risk of injury caused by stepping on a tree root in an area used to access tee boxes. The court further found that defendant had not increased the inherent risk of injury and had not failed to take reasonable steps to minimize the inherent risk of injury that would not have altered the fundamental nature of the sport.  Affirming, the Court of Appeal stated: “The open question is whether the inherent risk of playing golf on an outdoor course includes risks associated with the topographical features of the course. We find it does.”

(Wellsfry v. Ocean Colony Partners, LLC (Cal. App. 1st Dist., Div. 3, Apr. 27, 2023) 2023 WL 3112375.)

Requirement of Pleading Particularity Under the California False Claims Act. 

Plaintiff brought a qui tam action against several financial institutions and subsidiaries under the California False Claims Act (Gov. Code § 12650 et seq.; CFCA). Plaintiff alleges that defendants violated the CFCA by submitting false claims for payment for remarketing services, knowing they had failed their obligation to reset the interest rate for the California variable rate demand obligations at the lowest possible rate, and many other contentions. The trial court sustained defendants’ demurrer to the seventh amended complaint without leave to amend, concluding that plaintiff had not pleaded sufficiently particularized factual allegations. Reversing, the Court of Appeal stated: “While allegations of a CFCA claim must be pleaded with particularity, we conclude that the trial court required too much to satisfy this standard.” (State of California v. JPMorgan Chase & Company (Cal. App. 1st Dist., Div. 4, Apr. 27, 2023) 2023 WL 3115668.)

Plaintiff May Proceed in Case for Inhumane Treatment of Her Cat. 

Plaintiff sought the help of defendant veterinarian for euthanasia for her dying cat, to prevent further suffering. She contracted for same day service. The agreement was for the cat to remain in plaintiff’s arms while the veterinarian injected the cat with sedation and then, once plaintiff said goodbye, the veterinarian was to end the cat’s life with a second injection. Instead, and without plaintiff’s informed consent, the veterinarian performed the euthanasia by means of an unnecessary and unjustified intracardiac injection, resulting in a horrific and painful death for her cat and great emotional distress to plaintiff. Plaintiff sued the veterinarian for fraud and various torts. One of the causes of action was for violation of Civil Code § 3340, which allows for an award of exemplary damages for wrongful injuries to animals committed willfully or with gross negligence in disregard of humanity. The prayer for relief for each cause of action sought nominal damages of $1, restitution of $600 (cost of euthanasia), and punitive damages. The trial court sustained defendant’s demurrer without leave to amend. Reversing, the Court of Appeal stated: “the FAC contained sufficient allegations to withstand demurrer to the causes of action for fraud/deceit/intentional misrepresentation, conversion/trespass to chattels, and intentional infliction of emotional distress. And while the trial court properly sustained the demurrer without leave to amend the cause of action for violation of section 3340, Berry should be granted leave to file a second amended complaint to allege a request for section 3340 exemplary damages in connection with other pleaded causes of action.” (Berry v. Frazier (Cal. App. 1st Dist., Div. 3, Apr. 28, 2023) 2023 WL 3141235.)

Lack of Specific Facts in Government Claim. 

Plaintiff tripped on a public sidewalk and presented a claim pursuant to the Government Claims Act (Gov. Code, § 810 et seq.) to the city. In the claim, he identified the allegedly dangerous condition of public property only as an “uplifted sidewalk.” After his government claim was rejected, plaintiff filed a personal injury action, complaining broadly that the “sidewalk surface” harbored a “dangerous condition” that created an unspecified hazard. He later disclosed during his deposition that he tripped and fell when he stepped into a hole, specifically a tree well with no tree in it. When specifically asked in deposition whether it was “fair to say that his fall was not caused by an uplifted sidewalk,” he responded: “Correct.” The trial court granted summary judgment for the city. Affirming, the Court of Appeal stated: “We agree with the trial court that this action is barred because the factual basis for recovery is not ‘fairly reflected’ in plaintiff’s government claim.” (Hernandez v. City of Stockton (Cal. App. 3rd Dist., Apr. 28, 2023) 2023 WL 3142328.)

Plaintiff May Proceed Against Religious School Under FEHA. 

St. Cecilia is a Catholic elementary school within the Archdiocese of Los Angeles (ADLA). The mission of the ADLA “encompasses the belief of continuing the redemptive work of Jesus Christ, living and proclaiming the gospel, and being faithful stewards of God’s creation.” Plaintiff was employed by St. Cecilia for approximately 40 years from 1978 to 2018. When she first started at the school, plaintiff worked as a part-time secretary or office administrator. Her job duties included answering phones, filing, photocopying, maintaining student records, processing student registrations, communicating with parents, and doing “[w]hatever [was] needed to make the office run smoothly.” Plaintiff occupied this role until her employment was terminated at the end of the 2017 to 2018 academic year. In 1999, plaintiff also began teaching art. St. Cecilia terminated plaintiff in 2018 and she sued for age discrimination under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA). The trial court granted St. Cecilia’s motion for summary judgment on the ground that plaintiff’s suit was barred by the ministerial exception, a constitutional doctrine that precludes certain employment claims brought against a religious institution by its ministers. Reversing, the Court of Appeal stated: “We conclude there are triable issues of material fact as to whether the ministerial exception applies in this case.” (Atkins v. St. Cecilia Catholic School (Cal. App. 2nd Dist., Div. 8, Apr. 28, 2023) 2023 WL 3142316.)

Force Majeure Provision in Lease. 

During the pandemic, a commercial tenant did not pay rent for several months. The landlord sued for unlawful detainer. A provision in their commercial lease stated: “FORCE MAJEURE. If either Party is delayed, interrupted or prevented from performing any of its obligations under this Lease, and such delay, interruption or prevention is due to fire, act of God, governmental act or failure to act, labor dispute, unavailability of materials or any cause outside the reasonable control of that Party, then the time for performance of the affected obligations of the Party shall be extended for a period equivalent to the period of such delay, interruption or prevention.” The trial court granted summary judgment for the landlord. Affirming, the Court of Appeal stated: “The trial court correctly interpreted the force majeure provision here not to apply where the tenant had the ability to meet its contractual obligations but chose not to perform due to financial constraints.” (West Pueblo Partners, LLC v. Stone Brewing Co., LLC (Cal. App. 1st Dist., Div. 2, Apr. 28, 2023) 2023 WL 3151827.)

Cost-Shifting Mechanisms of Code of Civil Procedure § 998 Does Not Apply to Uninsured Motorist Proceedings.

Insured filed petition to confirm arbitration award against her umbrella carrier arising from an accident involving an uninsured motorist (UIM) accident. Before the arbitration, insured made a Code of Civil Procedure § 998 offer, and the umbrella carrier later failed to obtain a more favorable judgment. The trial court granted insured’s petition, but denied insured’s request for prejudgment interest pursuant to Civil Code § 3291 as a component of her § 998 award. The Court of Appeal affirmed, holding that  “section 3291, incorporating the cost-shifting mechanisms of CCP section 998 and applying them to prejudgment interest in personal injury actions from the date of the offer, does not apply in a UIM proceeding.” (Glassman v. Safeco Insurance Company of America (6th Dist., April 28, 223) 2023 WL 3144465.)

Class Action Against Hospital for Emergency Room Billing May Proceed. 

Plaintiff filed a class action lawsuit against defendant medical center seeking declaratory and injunctive relief, and alleging violations of the unfair competition law (Bus. & Prof. Code, § 17200 et seq.; UCL) and the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.; CLRA) in connection with defendant’s emergency room billing practices. Plaintiff alleges defendant charges an undisclosed “Evaluation and Management Services Fee” (EMS Fee) that is an “unfair, deceptive, and unlawful practice.” The trial court granted defendant’s demurrer without leave to amend. Reversing, the Court of Appeal stated: “Naranjo has adequately alleged a claim under the CLRA. Naranjo has alleged Medical Center’s EMS Fee billing practices were known exclusively to Medical Center and that information in that regard was not reasonably accessible to Naranjo . . . Naranjo’s FAC alleged sufficient facts to state a claim under the UCL . . . [and] Naranjo’s FAC alleges sufficient facts to state a claim for declaratory and injunctive relief.” (Naranjo v. Doctors Medical Center of Modesto, Inc. (Cal. App. 5th Dist., Apr. 28, 2023) 2023 WL 3144144.)

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