Litigation Update: November 2018
A monthly publication of the Litigation Section of the California Lawyers Association
- Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District
- Managing Editor, Reuben Ginsburg
- Editors, Dean Bochner, Glenn Danas, Herb Fox, Jessica Riggin, Anne Voigts and Kenneth Wang
Who Pays the Costs When Public Records Act Requests Are Made?
A city complied with a California Public Records Act (Gov. Code, § 6250 et seq.) request to produce redacted police body camera videos. The requester paid over $3,000 “under protest,” and then brought a petition for administrative mandate to compel the city to return the money. The trial court concluded that Government Code §§ 6253, subdivision (b) and 6253.9, subdivision (a)(2) do not permit the city to charge for costs incurred in making a redacted version of an existing public record. The Court of Appeal concluded the trial court misinterpreted the statute and reversed. (National Lawyers Guild v. City of Hayward (Cal. App. 1st Dist., Div. 3, Sept. 28, 2018) 27 Cal.App.5th 937.)
Works in the Public Domain Can Be Copyrightable.
Plaintiff claims the rock group Led Zeppelin copied key portions from its song “Taurus” and placed those portions in its hit “Stairway to Heaven.” A jury returned a verdict in favor of Led Zeppelin. Reversing, the Ninth Circuit held the trial court misinstructed the jury, stating: “In sum, we conclude that the district court’s originality jury instructions erroneously instructed the jury that public domain elements are not copyrightable, even if they are modified in an original manner or included as part of a selection and arrangement.” (Skidmore v. Led Zeppelin (9th Cir. Sept. 28, 2018) 905 F.3d 1116.)
Special Proceeding to Vacate Arbitrators’ Discovery Order.
Uber successfully petitioned the superior court to vacate a discovery order by a panel of arbitrators. Google appealed. Uber moved to dismiss the appeal for lack of jurisdiction because the discovery order was not a final arbitration award and was not appealable. The Court of Appeal denied the dismissal order, stating, “the superior court’s order determined all the pending issues in the special proceeding between Google and Uber and was thus a final appealable order.” As to the merits, in the arbitration, Google sought discovery of pre-acquisition due diligence documents from Uber, a nonparty to the arbitration. The arbitration panel determined the due diligence documents were not protected by either the attorney-client privilege or the attorney work product doctrine and ordered them produced. The appellate court upheld the arbitrators’ order and reversed the superior court’s order, stating: “Although the materials had qualified protection as work product, denial of the materials would unfairly prejudice Google’s preparation of its claims.” (Uber Technologies, Inc. v. Google LLC (Cal. App., 1st Dist., Div. 3, Sept. 28, 2018) 27 Cal.App.5th 953.)
Previously we reported: No Common Law Duty for Businesses to Have Defibrillators Available.
A woman suffered a cardiac arrest while shopping at Target. Paramedics took several minutes to arrive and maneuver through the store, and they were unable to revive the woman. The woman’s family filed an action in state court, and Target removed it to federal court. The suit contends that Target breached the duty of care that it owed to business customers by failing to have on hand within its store an automated external defibrillator (AED). After the federal trial court dismissed the action for failing to state a cause of action, the Ninth Circuit decided that California precedents do not provide sufficient guidance and asked the California Supreme Court to address the issue. The California Supreme Court stated: “[W]e conclude that, under California law, Target’s common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency.” (Verdugo v. Target Corporation (Cal., June 23, 2014) 59 Cal.4th 312.)
A similar but different recent case:
A private group rented an outdoor facility owned by the YMCA for a soccer game involving players over 40 years old. One of the players suffered a cardiac arrest and died. A part-time employee of the YMCA was assigned to serve as scorekeeper for the league’s games that evening, but he was away from the field at the moment the man collapsed and did not bring one of the five AED’s it had acquired to the field. The decedent’s family filed a wrongful death case against the YMCA. The YMCA did not dispute that for its own scheduled events, its policy was to have one of its staff members check out and bring an AED to the field. Also, the YMCA admitted that its failure to schedule the League games on its regular AED checkout list was due to a staff mistake arising from the private rental status of the League. Health & Safety Code § 1797.196, subdivision (b) provides that when an entity acquires an AED to ensure public safety, it shall comply with regulations involving maintenance and testing of the device and notify tenants that the device is present at the site, but the law does not impose a mandatory duty to obtain AED’s. The trial court granted the YMCA’s motion for summary judgment, finding no duty. Affirming, the Court of Appeal stated: “We conclude that as a matter of law, [Health and Safety Code § 1797.196 and Civil Code § 1714.21] do not impose the form of duty proposed by Appellants, to have a facility operator’s employee apply and activate an AED at any location on the premises upon the occurrence of a medical emergency, even if the operator has acquired and made generally available such devices to promote the safety of its members and other patrons.” (Jabo v. YMCA of San Diego County (Cal. App., 4th App. Dist., Div. 1, Sept. 28, 2018) 27 Cal.App.5th 853.)
Order Limiting Attorney Fees to 10 Percent After Representing Minors in Plane Crash Reversed.
A law firm represented a decedent’s wife and four young children in a wrongful death action. The decedent died when the plane he was piloting crashed just before landing at an airport in Germany. The law firm obtained a settlement of $18,125,000 from the aircraft manufacturers and others. The court awarded the law firm 10 percent of the children’s settlement funds rather than the 40 percent called for in the fee agreement or 31 percent requested by the law firm. The Court of Appeal determined the trial court abused its discretion, noting that the law firm increased its risk by advancing more than $300,000 in costs in the case. (Schulz v. Jeppesen Sanderson, Inc. (Cal. App. 2d App. Dist., Div. 1, Oct. 2, 2018.) 27 Cal.App.5th 1167
Attorney Fee Award in Class Action Settlement Reversed.
A federal trial court approved a class action settlement, and one of the class members objected to it. The settlement provides that each class member will receive a $20 credit that may be used to purchase additional products from defendant. It further anticipates that class counsel will receive $8.7 million in attorney fees. Under the Class Action Fairness Act (28 U.S.C. § 1712), certain restrictions are imposed on attorney fee awards for class action settlements that provide class members relief in the form of coupons. The Ninth Circuit held that the district court erred because it failed to treat the $20 credits as coupons. (In Re EasySaver Rewards Litigation (9th Cir., Oct. 3, 2018) 906 F.3d 747.)
Preemption Issue Regarding Food Package Labeling.
The label on a package of bread crumbs states “0g Trans Fat per serving.” A woman alleged the product “contained artificial trans fats, and caused heart disease, diabetes, cancer, and death,” and that she would not have purchased it had she known it contained trans fats. She brought an action in federal court, alleging a violation of California law concerning reliance on misleading labels. It turns out that Food and Drug Administration (FDA) regulations (31 C.F.R. § 101.9) state that if the product contains less than 0.5 grams of trans fat, as did the bread crumbs in this case, the nutritional facts panel of a product label must state “0 grams trans fat.” However, under 31 C.F.R. § 101.3(c), a statement as to the amount of a nutrient mandated inside the nutritional facts panel is not necessarily permitted by the FDA elsewhere on the packaging. Also, under the Nutritional Labeling and Education Act (21 U.S.C. § 343-1(a)(5)), no state may establish any food labeling requirement that is not identical to the federal requirement. A federal trial court dismissed the action. The Ninth Circuit Court of Appeals reversed, finding the district court erred by not analyzing whether a “0g Trans Fat per serving” statement may be claimed elsewhere on the label, that is outside the nutritional facts panel. (Hawkins v. The Kroger Company (9th Cir., Oct. 4, 2018) 906 F.3d 763.)
Preemption Issue Regarding Food Supplement Package Labeling.
Plaintiff brought California consumer claims against defendant, a manufacturer of nutritional supplements, for making false or misleading statements about the protein in a product. A federal trial court dismissed the action as preempted by the Food, Drug, and Cosmetic Act (21 U.S.C. §§ 301-399i; FDCA). Reversing, the Ninth Circuit Court of Appeals held the FDCA and its implementing regulations concern only the calculation and disclosure of protein amounts, while the plaintiff contended that the product’s label was misleading regarding the source or composition of the protein. (Durnford v. MusclePharm Corp. (9th Cir., Oct. 12, 2018) 907 F.3d 595.)
“The only thing worse than being blind is having sight but no vision,” Helen Keller.
A blind man who walks with the help of a trained guide dog regularly walks to the market to maintain his independence. He always takes the same route as it is not easy for a blind person to learn alternate routes. His route takes him past a trucking/hauling business that uses an untrained, unleashed guard dog. The gates to the business are usually open because trucks are constantly entering and exiting, giving the guard dog access to the sidewalk. The guard dog attacked or growled at the blind man’s guide dog on six occasions. The blind man complained to the business and to animal control. The business took no action to control its dog. Following the attacks by defendant’s guard dog, plaintiff’s guide dog became fearful of other dogs, aggressive, and unable to consistently perform its guide dog duties. The blind man sued alleging several statutory violations, seeking an injunction, damages, and attorney fees. The court sustained the business’s demurrer and dismissed the action. Reversing, the Court of Appeal stated: “Here, as alleged, plaintiff presented himself at a public place (the sidewalk) with the intent of using it in the manner it is typically offered to the public (walking on it for travel), and actually had his enjoyment interfered with on six occasions. Plaintiff therefore has standing to sue for damages.” (Ruiz v. Musclewood Investment Properties (Cal. App. 2nd Dist., Div. 5, Oct. 5, 2018) 28 Cal.App.5th 15.)
“Thy will be done, on earth as it is in heaven,” Matthew 6:9-13.
Decedent left her home to the Catholic Church, providing for a life estate of a “very dear family friend of over 60 years.” The old friend was supposed to pay certain expenses for the residence. Upon the old friend’s death, the residence was to be sold and the proceeds given to the Church. Well, the dear family friend developed dementia, became destitute, and was unable to pay the expenses. The trustee, decedent’s niece, who has an 11th grade education and suffered from cancer herself, did not evict the old family friend because she was sure the decedent would not have wanted that. Eventually the old friend died. The Church sued the trustee/niece for breach of her trustee duties by failing to evict the old family friend. Fortuitously the Church benefited because the value of the residence appreciated by $136,000 during the period of the trustee’s inaction. Probate Code § 16440 provides that a court has discretion to excuse a trustee if the trustee acted reasonably and in good faith under the circumstances. The trial court excused the trustee, stating: “How could [the trustee] in good conscience boot out a man who essentially was a member of her family, had lived in the house for 40 years, was suffering from dementia and had minimal financial assets?” The Court of Appeal, finding no abuse of discretion, affirmed. (Orange Catholic Foundation v. Arvizu (Cal. App. 4th Dist., Div. 3, Oct. 17, 2018) 28 Cal.App.5th 283.)
Relief for Plaintiff’s Counsel’s Error Was Mandatory.
After plaintiff failed to respond to defendants’ demurrer, the trial court sustained the demurrer and entered judgment for defendants. Thereafter, the trial court denied plaintiff’s motion for relief under Code of Civil Procedure § 473, subdivision (b). Reversing, the Court of Appeal stated: “We conclude the trial court was obligated to grant relief under the mandatory provision of Section 473(b), where appellant presented a sworn declaration from his counsel attesting that counsel mistakenly failed to respond to the demurrer by timely filing an amended complaint. Although a number of court of appeal decisions have declined to give plaintiffs the benefit of the mandatory provision of Section 473(b) in other circumstances, we hold respondents’ demurrer was effectively a ‘dismissal motion’ and appellant’s counsel’s mistaken failure to respond to the motion obligated the trial court to relieve appellant from counsel’s error.” (Pagnini v. Union Bank, N.A. (Cal. App. 1st Dist., Div. 5, Oct. 17, 2018) 28 Cal.App.5th 298.)
“We know a thing or two because we’ve seen a thing or two,” Farmers’ commercials.
In 1993, a woman purchased an “occurrence” life insurance policy and named her sons as beneficiaries. The policy included a rider under which the insurance company agreed to waive the cost of the insurance while the insured was disabled if the insured provided notice and proof of her disability. The insured was diagnosed with stage IV colon cancer in 2012 and became disabled as a result. She did not provide the insurance company with notice of her disability and made no payments on the policy after June 2013. In September 2013, she died. The insured’s sons made a claim for benefits under the policy. The insurance company denied the claim on the ground that the policy had lapsed before the insured died. The trial court granted the insurance company’s motion for summary judgment in the present action initiated by the insured’s sons. The Court of Appeal reversed, noting the insurance company’s argument is circular in that, “its premise that the policy lapsed because [the insured] failed to pay the deduction assumes [the insurance company’s] conclusion that [the insured] was not entitled to the deduction waiver benefit because the policy had lapsed.” (Lat v. Farmers New World Life Insurance Company (Cal. App. 2nd Dist., Div. 1, Oct. 17, 2018) 28 Cal.App.5th 212.)
The Modern Family in the Context of a Wrongful Death Action.
A man died after an incident with police, leaving his partner, two biological children, and his partner’s child, A.G., whom the decedent raised and held out as his own child. In a wrongful death action, the trial court held A.G. lacked standing to sue and entered summary judgment against him. On appeal, A.G. claimed decedent was his presumed father, and defendants argued decedent could not be A.G.’s presumed father because decedent was not A.G.’s biological parent. reversing, the Court of Appeal found that a nonbiological parent can be a presumed parent, and that defendants did not meet their summary judgment burden. (A.G. v. County of Los Angeles (Cal. App. 2nd Dist., Div. 7, Oct. 18, 2018) 2018 Cal. App. LEXIS 943.)
Previously we reported: “Those who deny freedom to others deserve it not for themselves.” Abraham Lincoln.
Plaintiffs are former child slaves who were forced to harvest cocoa in the Ivory Coast in West Africa, working up to 14 hours a day six days a week with only scraps of food to eat. They filed claims under the Alien Tort Statute (28 U.S.C. § 1350) against American companies alleging they aided and abetted child slavery by providing assistance to Ivorian farmers. The federal trial court dismissed the action, finding plaintiffs failed to state a claim. Calling the situation a humanitarian tragedy and noting that thousands of children are forced to work without pay in the Ivorian economy, the Ninth Circuit reversed. The appeals court noted: “[T]he allegations suggest a myopic focus on profit over human welfare drove the defendants to act with the purpose of obtaining the cheapest cocoa possible, even if it meant facilitating child slavery. These allegations are sufficient to satisfy the mens rea required of an aiding and abetting claim . . . .” (John Doe v. Nestle USA, INC. (9th Cir. 2014) 766 F.3d 1013.)
The federal trial court again dismissed the action because it requests an extraterritorial application of the Alien Tort Statute. The Ninth Circuit noted that defendant is headquartered in Virginia, and that “every major operational decision regarding Nestle’s United States market is made in or approved in the United States.” The appeals court stated: “Defendants were well aware that child labor is a pervasive problem in the Ivory Coast. Nonetheless, defendants continued to provide financial support and technical farming aid, even though they knew their acts would assist farmers who were using forced child labor, and knew their assistance would facilitate child slavery.” Ultimately, the Ninth Circuit reversed to allow plaintiffs to amend their complaint to specify whether aiding and abetting conduct that took place in the United States is attributable to the domestic corporations in this case. (John Doe v. Nestle, S.A. (9th Cir., Oct. 23, 2018) 906 F.3d 1120.)
The FBI obtained a warrant to investigate an Internet site known as “Playpen,” used to send child pornography that users can access without revealing the user’s IP address. Once it seized Playpen’s servers, the FBI operated the Playpen site from a government-controlled server in Virginia to intercept electronic communications and identify its users. Defendant, who lives in Northern California, was identified and indicted. He unsuccessfully moved to suppress the evidence, pled guilty, and was sentenced to five years in prison followed by ten years of supervision. He appealed the denial of his motion to suppress, arguing a magistrate judge has no jurisdiction to issue a warrant to search computers outside the magistrate’s district. Affirming, the Ninth Circuit held the warrant violated rule 41(b) of the Federal Rules of Civil Procedure by authorizing a search outside the magistrate judge’s territorial authority. The appeals court found the violation was a fundamental constitutional error but that the violation does not justify suppression of the evidence since the government acted in good faith. (United States of America v. Henderson (9th Cir., Oct. 23, 2018) 906 F.3d 1109.)
Loss of a Conditional Use Permit to Operate a Night Club Constitutes Property Damage Under Insurance Policy.
After a fatal shooting at a night club, the night club’s conditional use permit (CUP) was revoked and replaced with a modified CUP that provided the property could be operated only as a banquet hall. The night club sued its security company, claiming that the security company’s failure to frisk the shooter caused the shooting, which in turn caused the CUP revocation, which in turn caused a diminution in property value. The night club obtained a default judgment against the security company and then brought a direct action against the security company’s liability insurer under Insurance Code § 11580. The liability insurance policy included coverage for the security company’s liability for property damage. The trial court granted summary judgment in favor of the insurer, ruling the night club’s claim against the security company was for an economic loss rather than for property damage as defined in the insurance policy. In reversing, the Court of Appeal held the night club’s loss of the ability to use the property as a night club constituted property damage, which was defined in the policy to include the loss of use of tangible property. (Thee Sombrero, Inc. v. Scottsdale Insurance Co., (Cal. App. 4th Dist., Div. 2, Oct. 25, 2018) 28 Cal.App.5th 729.)
When Does the Tolling Period End for Completion of Investigation Under the Public Safety Officers Procedural Bill of Rights Act?
Plaintiff is a police officer who, with his partner, responded to a family dispute call. They arrested the husband and placed the child with the wife. Later in their shift, the officers went back to the home to check on the welfare of the child. Thereafter, the wife alleged that plaintiff’s partner kissed her, touched her breasts and vaginal area, and propositioned her for sex. The police department conducted an investigation that was both administrative and criminal, and later filed a request with the district attorney’s office to file a felony complaint against the partner. The district attorney’s office refused to file against any of the officers, but stated it “was still working on the case.” A few months later, plaintiff was notified the police department was bringing administrative charges against him. One of the charges was sustained, and plaintiff contended it was too late for the police department to charge him when it did. The Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.) requires public agencies investigating misconduct by a public safety officer to complete their investigation and notify the officer of any proposed discipline within one year after discovering the misconduct, but the period is tolled when a criminal prosecution is pending. The Court of Appeal held the investigation and discipline against plaintiff was timely and that “the tolling period did not end until the D.A.’s office officially rejected prosecution of all officers investigated in the case.” (Bacilio v. City of Los Angeles (Cal. App. 2nd Dist., Div. 2, Oct. 25, 2018) 28 Cal.App.5th 717.)
Implied Stipulation to a Commissioner.
A trial court commissioner sustained a demurrer without leave to amend. On appeal, plaintiff contends the challenged judgment and underlying order are void because plaintiff did not stipulate to have a court commissioner hear the matter. In affirming, the Court of Appeal stated: “While generally speaking a commissioner is not qualified to act absent a stipulation [citation], the ‘tantamount stipulation’ doctrine holds that ‘an implied stipulation arises from the parties’ common intent that the subordinate officer hearing their case do things which, in fact, can only be done by a judge.’ [Citation.] That is exactly what occurred here—[plaintiff] appeared represented by counsel at a contested hearing on the petition, and at no time objected to or otherwise challenged the commissioner’s authority to decide the matter. Accordingly, we reject his belated attempt to do so here.” (Raam Construction, Inc. v. Occupational Safety and Health Appeals Board (Cal. App. 1st Dist., Div. 3, Oct. 25, 2018) 28 Cal.App.5th 709.)
Qualified Immunity Applies to a Police Officer who Secretly Videotaped a Woman Inside her Home.
A police officer secretly videotaped a woman who had applied for disability benefits after gaining entrance into her home under the guise of conducting a criminal investigation. No criminal charges were filed against the woman, but the video footage was used against her in her disability benefits hearing. She brought a civil rights action pursuant to 42 U.S.C. § 1983, alleging the police officer’s entry into her home without a warrant and under false pretenses violated her rights under the Fourth Amendment to be free from unreasonable searches and seizures. A federal trial court found the police officer was entitled to qualified immunity, and the Ninth Circuit Court of Appeals affirmed. Although the intrusion was an unreasonable search under the Fourth Amendment, the Ninth Circuit found the officer was entitled to qualified immunity because it would not have been clear to a reasonable officer that the intrusion was unlawful, and so the right claimed by plaintiff “was not clearly established.” (Whalen v. McMullen (9th Cir., Oct. 30, 2018) 2018 U.S. App. LEXIS 30686.)
Getting Out the Vote.
Plaintiff, a Democratic precinct committeeperson, has for many years tried to encourage others to vote by doing door-to-door canvassing and educating voters. Sometimes, after a voter has filled out an early ballot, the voter asks plaintiff to deliver it to the appropriate location. Plaintiff was concerned that should she do so, she would be violating Arizona law that makes it a felony when “a person who knowingly collects voted or unvoted ballots from another person.” Plaintiff requested a federal court to issue a preliminary injunction against enforcement of the statute because the area of voting is preempted by federal law. The federal trial court ruled in favor of the State of Arizona, and the Ninth Circuit Court of Appeals affirmed, stating that state regulation of early voting procedures was not “an area where there has been a history of significant federal presence.” (Knox v. Brnovich (9th Cir., Oct. 31, 2018) 2018 U.S. App. LEXIS 30806.)
Government Interference with Parenting.
Plaintiffs are parents of four children, one born in 2004 and triplets born in 2006. In 2010, the children were removed from their home. Two incidents led to their removal. In the first, a preschool director noticed a red mark on the lower back of one of the triplets. In the second, a county social worker noticed during a visit to the home that another triplet had a bruise on his forehead. After the children were removed, a medical doctor examined the children without notifying the parents. The parents sued the county for violating their Fourteenth Amendment rights and the children’s Fourth Amendment rights by: (1) performing the medical examinations in the absence of exigency, valid parental consent, or court order, and (2) failing to notify the parents of the examinations so that they could be present. A federal district court granted summary judgment for the county. Reversing, the Ninth Circuit concluded that the parents were deprived of their right to raise their children without undue interference from the government. (Mann v. County of San Diego (9th Cir., Oct. 31, 2018) 2018 U.S. App. LEXIS 112094.)
Required Notice Before Filing a PAGA Case.
Under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA), a notice of an alleged Labor Code violation is a prerequisite to filing a PAGA action. Here, the plaintiff sent her employer two letters complaining about meal and break periods. She then filed this class action. The trial court granted the employer’s motion for judgment on the pleadings on the ground that the prefiling letters did not give notice of the specific Labor Code violations alleged in the operative pleading. Affirming in part and reversing in part, the Court of Appeal found the prefiling letters were adequate notice of one claim, and that minimal notice was adequate to allege a violation of Labor Code § 226, subdivision (a). (Brown v. Ralphs Grocery Company (Cal. App. 2nd Dist., Div. 5, Oct. 31, 2018) 2018 Cal. App. LEXIS 983.)
Discourteous/dishonest Lawyer Fired.
While representing the Department of Corrections and Rehabilitation at an administrative hearing, a lawyer was 20 minutes late returning to the hearing after a lunch break. When the administrative law judge (ALJ) noted her tardiness, the lawyer said in a “disrespectful” manner that she had not been given enough time for lunch because there were no nearby restaurants. The lawyer also falsely claimed her supervisor said she could take an hour for lunch. In another matter, the lawyer was late on three consecutive days. When the ALJ noted her tardiness on the third day, the lawyer did not apologize and said it was not her fault because she had to speak with witnesses. On two other occasions, her supervisor could not find her during “core” hours, and her calendar did not reflect her whereabouts, even though the supervisor had told her to keep her calendar current. Another time, the lawyer yelled at a payroll clerk. The lawyer was dismissed, and the State Personnel Board upheld her dismissal. The superior court denied her petition for a writ of mandate. On appeal, she argued that because she is an attorney, only the State Bar has the power to discipline her. Affirming, the Court of Appeal explained that the State Personnel Board did not limit her ability to practice law. (Palmieri v. California State Personnel Board (Cal. App. 3rd Dist., Oct. 31, 2018) 2018 Cal. App. LEXIS 984.)
Which Lien Has Priority?
In 2013, an investment group recorded a third deed of trust against a golf course property. In 2014, a homeowners association (HOA) recorded an assessment lien against the same property. The trial court found that the investment group’s lien had priority because it was recorded earlier. On appeal, the HOA argued its lien has priority because it was created and perfected in 1984 when the covenants, conditions, and restrictions (CC&R’s) were created. The Court of Appeal rejected that argument but reversed on other grounds. Specifically, the appellate court observed that the CC&R’s allowed the HOA to maintain the golf course property if its owner failed to do so, and to create and record an assessment lien to secure certain costs incurred in that maintenance. Because the CC&R’s “provide that any assessment lien will have priority over all other liens, including deeds of trust except a first deed of trust, recorded at any time after the CC&R’s were recorded,” the HOA lien had priority. (Bear Creek Master Association v. Southern California Investors (Cal. App. 4th Dist., Div. 2, Oct. 31, 2018) 2018 Cal. App. LEXIS 986.)