Litigation Update: November 2021

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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, Division Three
  • Managing Editor, Julia C. Shear Kushner
  • Editors, Dean Bochner, Reuben Ginsburg, Jessica Riggin, David Williams, Ryan H. Wu, and Greg Wolff
Police Destruction of Firearms.

 A man showed up for an anger management mental health appointment and was told he did not have an appointment. The man told the employee, “Well, I guess I will shoot myself in the head,” and then departed. The mental health provider notified police, who determined that the man had a permit to carry a concealed weapon and possessed several registered firearms. Police detained the man inside his vehicle and took possession of a loaded firearm and other guns. Police learned that a month earlier, the man’s wife called the police because the man had accused her of cheating and “aggressively followed” her vehicle, prompting her to drive to the police department parking lot for safety. An officer told the man that he “posed a significant danger to himself and/or others,” and that “he was going to be placed on a 72-hour mental health evaluation hold” under Welfare and Institutions Code § 5150. A doctor concluded outpatient therapy was the most appropriate and least restrictive therapy, and the man was immediately released. The police requested the trial court’s permission to dispose of the man’s guns, but the court denied the request. Reversing, the Court of Appeal directed the trial court to consider whether the circumstances leading up to the § 5150 detention might occur again and whether possession or control of the confiscated weapons in such circumstances would pose a risk of danger to the man or to others. (Folsom Police Department v. M.C. (Cal. App. 3rd Dist., Oct. 1, 2021) 69 Cal.App.5th 1052.)

State of California Has Lien Rights to Settlement Proceeds.

A severely disabled child who suffered catastrophic injuries during birth sued her medical providers and settled the case for $3,000,000. The California Department of Health Care Services (DHCS) asserted a lien on plaintiff’s settlement to recover what DHCS paid for plaintiff’s medical care through the state’s Medi-Cal program. The trial court rejected the lien, concluding that it was prohibited by the “anti-lien” provision of the federal Medicaid Act (42 U.S.C. § 1396 et seq.). Reversing, the Court of Appeal stated: “While the anti-lien provision of the Medicaid Act generally prohibits liens against the property of Medicaid beneficiaries, other provisions of the Act carve out exceptions for settlements or judgments recovered from third-party tortfeasors, to the extent such settlements or judgments are attributable to payments made by the state for the beneficiaries’ medical care.”  The appellate court remanded the case and instructed the trial court to “conduct a hearing pursuant to Welfare and Institutions Code section 14124.76 to determine (1) what portion of plaintiff’s settlement is attributable to medical care expenses paid for by the state, and (2) the reimbursement to which DHCS is entitled.” (L.Q. v. California Hospital Medical Center (Cal. App. 2nd Dist., Div. 3, Sept. 30, 2021) 69 Cal.App.5th 1026.)

“We don’t just protect things, we help protect the life you’ve built around them.” Travelers Insurance Company.

Plaintiff operates a children’s store in San Francisco that sells clothing, toys, books, and other goods. It alleges that it purchased a comprehensive commercial liability and property insurance policy from Travelers, and made a claim under the policy’s “Business Income” and “Extra Expense” coverage in 2020 after state and local authorities in California issued several public health orders in response to the COVID-19 pandemic. Plaintiff claimed the orders prevented it from operating its store, but Travelers denied the claim. Plaintiff filed a putative class action seeking declaratory relief and asserting claims for breach of contract and breach of the implied covenant of good faith and fair dealing. The district court granted Travelers’ motion to dismiss. Affirming, the Ninth Circuitstate: “Though [plaintiff] argues it was the government orders that most directly caused its injury, [plaintiff] does not plausibly allege that ‘the efficient cause,’ i.e., the one that set others in motion, [citation], was anything other than the spread of the virus throughout California, or that the virus was merely a remote cause of its losses. [Citation.] Accordingly, the Policy’s Virus Exclusion bars coverage for [plaintiff’s] claims.” (Mudpie v. Travelers Casualty Insurance Company of America (9th Cir., Oct. 1, 2021) 2021 WL 4486509.)

“Paper is defined as a ‘written or printed document or instrument.’ ” Ninth Circuit Court of Appeals (quoting Paper, Black’s Law Dictionary 1266 (4th ed. 1951)).

This case concerns the timeliness of a defendant’s removal to federal court. If the initial pleading indicates removal is appropriate, a notice of removal may be filed within 30 days after defendant receives the pleading. A notice of removal may also be filed if the case stated in the initial complaint is not removeable, but an amended pleading, motion, order, or other paper indicates it is removeable. Here, witness testimony during a deposition indicated the action was removeable. The Ninth Circuit held that oral testimony did not qualify, and that unless defendant had transcripts of that testimony, the 30-day period did not begin to run. (Dietrich v. Boeing Company (9th Cir., Oct. 1, 2021) 14 F.4th 1089.)

Charter School Doesn’t Want to Pay Twice.

School districts tabulate certain district-wide facilities costs and derive a per-square-foot charge for charter schools in the district. Under regulations adopted by the State Board of Education, charter schools are responsible for ongoing operations and maintenance at facilities they use; school districts are responsible for major maintenance and capital improvements; and a district may charge a charter school a pro rata share of its “facilities costs.” (Cal. Code Regs., tit. 5, §§ 11969.4, 11969.7.) In this case, a charter school claimed it had already paid some of the costs itself, but the school district wanted it to pay again. The trial court ruled in favor of the school district. Reversing and remanding for further proceedings, the Court of Appeal concluded that the trial court failed to make essential findings of fact. (Mt. Diablo Unified School District v. Clayton Valley Charter High School (Cal. App. 1st Dist., Div. 4, Oct. 1, 2021) 69 Cal.App.5th 1004.)

Due Process Claim to Proceed.

A man was stopped by police while he was driving his parents’ car. After police found marijuana in the vehicle, the car was seized under Arizona’s forfeiture law. The car was eventually returned to its owners after they spent five months contesting the forfeiture. Thereafter, the owners filed a civil rights action against the government, alleging that Arizona’s forfeiture statute denied them due process. The owners argued that the state’s attorneys have a pecuniary interest in forfeiture proceedings because the statute awards all interest in the forfeited property to the agency responsible for seizing it. The district court dismissed all claims. Reversing, the Ninth Circuit ruled that the due process claim could proceed. (Platt v. Moore (9th Cir., Oct. 4, 2021) 15 F.4th 895.)

Private Prisons in California.

In 2019, California Governor Gavin Newsom signed a bill, AB 32, that phases out all private detention facilities within the state. But because of seasonal and other fluctuations in immigration, the U.S. Immigration and Customs Enforcement relies exclusively on private detention centers in California. The federal government and the GEO Group, Inc., a company that operates two private immigration detention centers, sued the state and sought a preliminary injunction, arguing that AB 32 conflicts with federal law and violates intergovernmental immunity. The district court denied the plaintiffs’ request for a preliminary injunction and dismissed the action, holding that the well-being of detainees falls within a state’s traditional police powers. Reversing, the Ninth Circuit explained: “California is not simply exercising its traditional police powers, but rather impeding federal immigration policy.” (Geo Group, Inc. v. Newsom (9th Cir., Oct. 5, 2021) 15 F.4th 919.)

Classification of Workers Laws Regulate Economic Activity, Not Speech.

In confronting the issue of misclassification of employees as independent contractors, California passed AB 5, which codified the ABC test as the legal test for determining whether a worker is properly classified. Later, the legislature provided exemptions and clarifications in AB 2257. These bills affected changes in the Business and Professions, Labor, and Revenue and Taxation Codes. Because freelance writers, photographers, and others received a narrower exemption than was offered to certain other professionals, the American Society of Journalists and Authors, Inc., and the National Press Photographers Association (collectively, ASJA) sued, alleging violations of the First Amendment and Equal Protection Clause. The district court dismissed the action. Affirming, the Ninth Circuit stated: “We conclude, however, that the laws do not regulate speech but, rather, economic activity. We further conclude that the legislature’s occupational distinctions are rationally related to a legitimate state purpose. We therefore affirm the district court’s dismissal of ASJA’s suit.” (American Society of Journalists & Authors, Inc. v. Bonta (9th Cir., Oct. 6, 2021) 15 F.4th 954.)

Repudiated Witness Statement Does Not Create a Triable Issue of Fact.

Plaintiff obtained a witness declaration to support her opposition to defendants’ summary judgment motion in an auto collision case. At the witness’s deposition, she disavowed the declaration, testified as to her lack of knowledge of the relevant matter, and explained that she signed the declaration due to pressure from plaintiff’s counsel. The trial court denied defendant’s motion for summary judgment on the ground the declaration created a triable issue of fact. Granting defendant’s petition for extraordinary relief, the Court of Appeal discussed a few statutes: Code of Civil Procedure § 437c, subdivision(d), which says that declarations in summary judgment motions require the personal knowledge of the declarant; Evidence Code § 702, subdivision (a), which requires that the testimony of a nonexpert witness is inadmissible unless the witness has personal knowledge; and Evidence Code § 702, subdivision (b), which states that whether a witness has personal knowledge may be shown by admissible evidence. Thus, in granting the writ of mandate and directing the Superior Court to enter summary judgment in favor of defendant, the appeals court stated: “[T]he record here compels the conclusion that the witness’s repudiated statement lacked foundation in personal knowledge.” (Forest Lawn Memorial-Park Association v. Superior Court of Riverside County (Cal. App. 4th Dist., Div. 2, Oct. 7, 2021) 70 Cal.App.5th 1.)

The World of Video Games.

Plaintiff William “Billy” Mitchell brought suit against Twin Galaxies, a facilitator and organizer of videogame competitions, for defamation and false light after Twin Galaxies issued a statement asserting Mitchell’s world record scores in the Donkey Kong arcade game were not achieved on original unmodified hardware as required under its rules. As a result, it removed all of Mitchell’s world record scores and banned him from participating in its leaderboards. Twin Galaxies published the following statement: “Based on the complete body of evidence presented in this official dispute thread, Twin Galaxies administrative staff has unanimously decided to remove all of Billy Mitchell’s scores as well as ban him from participating in our competitive leaderboards. We have notified Guinness World Records of our decision.” Twin Galaxies filed a special motion to strike pursuant to Code of Civil Procedure § 425.16. Opposing the motion, Mitchell provided evidence he did comply with the rules and accused Twin Galaxies of fabricating a dispute to draw attention to its website and increase revenue. Because Mitchell showed a probability of prevailing on his claims, the trial court denied the motion. The Court of Appeal agreed with the trial court that Mitchell demonstrated the requisite minimal merit to his claims and affirmed denial of the anti-SLAPP motion. (Mitchell v. Twin Galaxies, LLC (Cal. App. 2nd Dist., Div. 8, Oct. 12, 2021) 70 Cal.App.5th 207.)

The Published Compilation Exception to the Hearsay Rule.

A criminal defendant was convicted of felony attempted unlawful taking of a vehicle. That crime required proof the vehicle was worth more than $950.00. On appeal, the defendant contended his conviction must be reversed because the court permitted, over his objection, a police detective to testify to the car’s estimated value obtained from the Kelley Blue Book’s Web site. He argued this was hearsay evidence that should have been excluded, and absent this testimony, there was no evidence establishing the car was worth more than $950, an element of the felony offense. Affirming the conviction, the Court of Appeal stated: “We conclude the trial court properly admitted the evidence under Evidence Code section 1340, the published compilation exception to the hearsay rule.” (People v. Jenkins (Cal. App. 4th Dist., Div. 2., Oct. 12, 2021) 2021 WL 4947308)

Emergency Room Billing.

After receiving treatment at a hospital emergency room, plaintiff sued the hospital, contending its bill amounted to an unfair business practice under the Unfair Competition Law (Bus. & Prof. Code, § 17200) and was unlawful under the Consumers Legal Remedies Act (Civ. Code, § 1770 et seq.). He sought declaratory and injunctive relief requiring specific disclosure of this particular emergency room charge (“ER Charge”) to all persons presenting at any Dignity-operated emergency department “in advance of providing treatment that would trigger” the ER Charge. The trial court sustained the hospital’s demurrer without leave to amend. Affirming, the Court of Appeal stated: “[R]equiring individualized disclosure that the hospital will include an ER Charge in its emergency room billing, prior to providing any emergency medical services, is at odds with the spirit, if not the letter, of the hospital’s statutory and regulatory obligations with respect to providing emergency medical care.” (Gray v. Dignity Health (Cal. App. 1st Dist., Div. 1, Oct. 13, 2021) 2021 WL 4771982.)

The Litigation Privilege Does Not Shield this Defendant from Claims for Quiet Title or Cancellation of an Instrument.

Plaintiff alleged defendant sent plaintiff a letter threatening a forced sale of real property that plaintiff had purchased, based on a judgment lien created when defendant recorded an abstract of judgment that he obtained in a long-standing divorce proceeding between defendant and his former wife. Plaintiff sought to quiet title to the property by filing this action. In response, defendant filed an anti-SLAPP motion (CCP § 425.16), arguing that the conduct underlying plaintiff’s claims against him was protected activity under the anti-SLAPP law, and also arguing plaintiff was unable to demonstrate a probability of prevailing on the claims. The trial court agreed with defendant. The trial court also agreed that plaintiff could not demonstrate a probability of prevailing on any of the claims because the litigation privilege provided defendant with absolute immunity from liability. The trial court therefore granted defendant’s anti-SLAPP motion, and entered judgment for defendant. The Court of Appeal agreed with the trial court insofar as the trial court found plaintiff’s claims arose from protected activity, but found the litigation privilege was not as broad as the trial court determined, stating: “The litigation privilege shields a defendant from liability only for tort damages that are based on litigation related communications; [plaintiff’s] causes of action for quiet title and cancellation of an instrument do not seek to hold [defendant] liable for tort damages but, rather, seek to ascertain the interests of the parties with respect to a parcel of real property and to determine the validity of an instrument. The litigation privilege does not shield [defendant] from these claims.” The appeals court concluded the trial court erred in granting the motion with respect to the causes of action for quiet title and cancellation of an instrument, and reversed. (Weeden v. Hoffman (Cal. App. 4th Dist., Div. 1, Oct. 13, 2021) 2021 WL 4771458)

Agreement to Waive Appeal Upheld.

A criminal defendant pled guilty to armed robberies, accepting a 20-year sentence recommendation and waiving his right to appeal his conviction or sentence. About 18 months later, the law changed, the application of which might have meant a lower sentence. Neither the district court judge nor the Ninth Circuit would allow him to wriggle out of the deal. The Ninth Circuit dismissed his appeal “as barred by the appellate waiver in his plea agreement.” (United States v. Goodall (9th Cir., Oct. 13, 2021) 15 F.4th 987)

$39,000 Jury Award; 800,000 Claim for Attorney Fees to Enforce Judgment.

This spat has, thus far, been going on for 12 years, and it’s not over yet. After more than 40 prior appeals between the parties, this consolidated appeal involved just three judgments following three separate attorneys’ fees motions. The judgment creditor sought over $800,000 in attorneys’ fees for its efforts to enforce a 2009 judgment entered after a jury awarded it approximately $39,000. The appellate court affirmed in part and reversed in part. Because the creditor’s litigation strategy “has been unnecessary and objectively unreasonable,” the order awarding post-appeal attorneys’ fees was reversed. However, the matter was remanded for the trial court to calculate fees that were attributable to the original action, sought within two years of having been incurred, and reasonably incurred. (Wertheim, LLC v. Currency Corporation (Cal. App. 2nd Dist., Div. 1, Oct. 14, 2021) 2021 WL 4785575.)

Summary Judgment in Favor of Fire Insurance Company Upheld.

After plaintiff’s house was destroyed by fire, she rebuilt. Her insurance company, the defendant here, paid for the construction. However, plaintiff claimed the defendant underestimated the cost of rebuilding, requiring her to rebuild a cheaper house than the one destroyed by the fire. She sued, contending that defendant breached the insurance policy and breached the implied covenant of good faith and fair dealing. The trial court entered summary judgment for defendant. Affirming, the Court of Appeal stated that the “evidence d[id] not create a triable issue of material fact with respect to whether [plaintiff’s] insurance policy entitled her to more than she actually spent to build the replacement house.” (Janney v. CSAA Insurance Exchange (Cal. App. 3rd Dist., Oct. 15, 2021) 2021 WL 4810353.)

Equitable Contribution and Equitable Indemnity Among Insurance Companies.

In this action, plaintiff insurance company sought to recover from defendant insurance companies some or all of the amounts it paid to defend a construction company in an underlying construction defect action. The trial court sustained defendants’ demurrers to plaintiff’s equitable contribution and equitable indemnity causes of action. In its analysis, the trial court observed that the doctrine of equitable contribution applies to insurers who share the same level of obligation on the same risk as to the insured, and found that this “same level” did not apply here because the plaintiff alleged in the operative complaint that it had no duty to provide a defense to the contractor. Reversing, the Court of Appeal stated that “Travelers was not bound by its allegation that it owed no duty to defend,” because that allegation was a legal rather than factual assertion. The appeals court also found that the third amended complaint “properly state[d] a cause of action for equitable indemnity because it allege[d] that ‘Insurer Defendants . . . are primarily and/or exclusively liable for the defense costs of [TFM], and thus in equity are required to reimburse [Travelers] for their equitable share of said defense costs.’” (Travelers Indemnity Company of Connecticut v. Navigators Specialty Insurance Company (Cal. App. 4th Dist., Div. 1, Oct. 15, 2021) 2021 WL 4817903.)

Displaced Janitor Opportunity Act.

A group of janitors were employed by a maintenance management company at a particular site. When that company’s contract expired, the owners of the site hired a third party to provide maintenance services beginning on April 10. The owners then hired another, successor maintenance management company to provide janitorial services beginning on April 14, but the successor did not retain the original janitors. Those janitors and their union sued the successor for failing to retain them under both state and local laws. The trial court granted summary judgment for the janitors. Affirming, the Court of Appeal stated that the Displaced Janitor Opportunity Act (Lab. Code, §§ 1060–1065) “requires contractors . . . for janitorial or building maintenance services at a particular site to retain certain employees working for the terminated contractor for a 60-day transition employment period, and to offer those workers continued employment if their performance during the 60-day period is satisfactory.” Defendant argued that the brief interruption of services between April 10 and April 14 meant the janitors were not employees at the relevant time, and, therefore, not covered by the Displaced Janitor Opportunity Act. But the Court of Appeal rejected this argument: “To allow a terminated contractor to stop providing services a few days before the nominal end of the contract and claim it therefore had no employees ‘at the time of contract termination’ would . . . contravene the legislative intent to close such loopholes, the worker-protective statutory purpose, and our obligation to liberally construe the statutes in favor of employee protection.” (SEIU-USWW v. Preferred Building Services, Inc. (Cal. App. 1st Dist., Div. 5, Oct. 15, 2021) 2021 WL 4810189.)

Wage and Hour Judgment in Favor of Plaintiff Affirmed.

Plaintiff sued his former employer for unpaid overtime wages and other compensation issues. After a bench trial, the trial court entered judgment for plaintiff in the amount of $99,394.16, which included $42,792.00 in unpaid overtime wages. The trial court calculated plaintiff’s regular rate of pay by dividing his weekly paychecks by 40, the number of non-overtime hours plaintiff worked per week. Defendant appealed, contending that the trial court erred by not isolating the commissions paid to plaintiff per week, and dividing those commissions by the actual number of hours plaintiff worked in a week (i.e., 50 or 58 hours) as opposed to 40 hours. Affirming, the Court of Appeal agreed with plaintiff that where, as here, the employer failed to provide records demonstrating the portion of each paycheck attributable to commissions (if any), and the actual number of hours worked, and failed to propose any manner to accurately estimate the commission payments, the trial court could properly divide the total weekly paycheck by 40 to approximate plaintiff’s regular rate. (Morales v. Factor Surfaces LLC (Cal. App. 2nd Dist., Div. 4, Oct. 14, 2021) 2021 WL 4818687.)

Police Who Shot and Killed a Man Entitled to Qualified Immunity.

A woman summoned police to her home because her former husband was intoxicated and refused to leave her garage. Police officers tried to talk the man down, but the man grabbed a hammer. He then ignored orders to drop the hammer; moved around a piece of furniture so that he would have an unobstructed path to the officers; “raised the hammer higher . . . and took a stance as if he was about to throw the hammer or charge at the officers.” Two officers shot and killed the man. The district court found the use of force was reasonable, and even if it was not, the officers were entitled to qualified immunity. The Tenth Circuit reversed. Unanimously agreeing with the district court, and holding the officers were entitled to qualified immunity, the United States Supreme Court stated: “Neither the panel majority nor the respondent have identified a single precedent finding a Fourth Amendment violation under similar circumstances. The officers were thus entitled to qualified immunity.” (City of Tahlequah, Oklahoma v. Bond (U.S., Oct. 18, 2021) 2021 WL 4822664.)

Previously we reported:
Question of Fact Whether Officer Used Excessive Force.

A 12-year-old girl called 911 and told the dispatcher she, her sister, and their mother were barricaded in a room at their home because her mother’s boyfriend had a chainsaw and was going to attack them. She also said the man had anger issues and was always drinking. The 911 operator could hear a sawing sound on the call. When police arrived, the man followed their instructions. At one point, one of the officers announced the man had a knife in his pocket. Two officers gave the man orders, one from the man’s left side and the other from his right side. As the man turned his head to the officer on the left, he lowered his arms. A third officer immediately shot the man with a beanbag round and then a second round. The man brought a civil rights action alleging excessive force. The district court granted summary judgment in favor of all defendants on the federal claims and declined to exercise jurisdiction over the state law claims. The Ninth Circuit reversed as to one officer who knelt on the man’s back, but affirmed as to the officer who shot the beanbags, finding his force was objectively reasonable.  The Ninth Circuit also reinstated plaintiff’s state law claims and remanded for further proceedings. (Cortesluna v. Leon (9th Cir., Oct. 27, 2020) 2020 WL 6279697.)

The latest:

Holding the officer was entitled to qualified immunity and reversing the judgment of the Ninth Circuit, the United States Supreme Court stated: “ ‘Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ [Citation.] . . . [¶] ‘Precedent involving similar facts can help move a case beyond the otherwise hazy borders between excessive and acceptable force and thereby provide an officer notice that a specific use of force is unlawful.’ [Citation.] . . . On the facts of this case, neither LaLonde [v. County of Riverside (9th Cir., 2000) 204 F.3d 947] nor any decision of this Court is sufficiently similar.” (Rivas-Villegas v. Cortesluna (U.S., Oct. 18, 2021) 2021 WL 4822662.)

Complaint in Intervention by Work Comp Carrier into Third Party Case.

Plaintiff was injured while using a scaffolding stairwell constructed by defendant. Plaintiff received worker’s compensation benefits and thereafter sued defendant. Prior to dismissal of that third party action, the worker’s compensation insurance carrier filed a complaint in intervention seeking reimbursement from defendant for the amounts it paid plaintiff in work comp benefits. Plaintiff and defendant settled the third party action. Under the settlement, plaintiff agreed to defend defendant and pay any judgment arising from the accident. Thus, plaintiff’s lawyers began representation of defendant in the complaint in intervention. The work comp insurance carrier moved to disqualify those attorneys on the ground they created a conflict of interest by representing plaintiff and thereafter assuming the defense of defendant. Both the trial court and the Court of Appeal held the insurance carrier had no standing to seek disqualification of the attorneys. (Moreci v. Scaffold Solutions, Inc. (Cal. App. 1st Dist., Div. 2, Oct. 18, 2021) 2021 WL 4843884.)

FEHA’s Asymmetric Standard for Award of Attorney Fees and Arbitration.

Under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA), a successful plaintiff is entitled to recover reasonable attorney fees, but a prevailing defendant may not be awarded fees unless the court finds the action was frivolous, unreasonable or groundless. (Gov. Code, §12965, subd. (b).) Here, an employer’s arbitration agreement authorized the recovery of fees for a successful motion to compel arbitration of a FEHA lawsuit. The trial court granted the employer’s motion to compel arbitration and awarded fees to the employer, but there was no finding by the court that plaintiff’s opposition was frivolous, unreasonable or groundless. Granting plaintiff’s petition for writ of mandate, the Court of Appeal noted that the required finding was not made and ordered the trial court to conduct a new hearing. (Patterson v. Superior Court of Los Angeles County (Cal. App. 2nd Dist, Div. 7, Oct. 18, 2021) 2021 WL 4843540.)

Employer Tried to Get Labor Commissioner Out of the Picture.

A former employee filed a complaint about her former employer with the Labor Commissioner of California. After the Labor Commissioner notified the employer of its investigation, the employer filed a petition to compel arbitration of the employee’s complaint. But the petition did not include the Labor Commissioner as a party. The Labor Commissioner’s motion to intervene was denied by the trial court; the trial court also stayed the Labor Commissioner’s investigation. Reversing both orders, the Court of Appeal stated: “Because it denied the intervention motion, the trial court took the Labor Commissioner’s motion to vacate ‘off calendar as moot.’ In doing so, the court, in effect, denied that motion. Because we reverse the denial of the intervention motion, we reverse the denial of the motion to vacate. On remand, the trial court should consider whether the arbitration order should be vacated in whole or in part in light of this opinion.” (Crestwood Behavioral Health, Inc. v. Lacy (Cal. App. 1st Dist., Div. 3, Oct. 19, 2021) 2021 WL 4853674.)

Excess Alcohol on Campus.

John Doe was a student at University of California, Davis (“UC Davis”), when fellow student Jane Roe reported that he engaged in nonconsensual sexual intercourse with her in violation of University of California (“UC”) policy. John agreed they had sex but said Jane consented. Following an investigation, UC Davis found that, on the night John and Jane had sex, Jane was incapacitated due to alcohol such that she was unable to consent and that, given her condition, a reasonable person should have known she was unable to consent. UC Davis concluded John violated explicit UC policy, and he was suspended from all UC campuses for two years. John petitioned the superior court for a writ of administrative mandate to set aside the suspension, and the court denied the petition. On appeal, John contended he was denied a fair process in UC Davis’s investigation and adjudication of Jane’s allegations because (1) he was denied a live hearing and an opportunity to cross-examine witnesses before a fact finder who was not also the investigator; (2) the investigator in this case failed to conduct a fair, thorough, and impartial investigation; and (3) the findings were not supported by substantial evidence. Affirming the trial court’s denial of administrative mandate, the Court of Appeal stated: “The administrative record shows the investigation was thorough, there is no evidence of investigator bias, and John was provided many opportunities to state his version of events and to review and respond to the evidence. On this record, we cannot say John was denied a fair process.” (Doe v. Regents of University of California (Cal. App. 1st Dist., Div. 2, Sept. 30, 2021) 2021 WL 4859783.)

Dating Violence on Campus.

John Doe was a senior at University of California, Santa Barbara (“UCSB”), when fellow student Jane Roe reported that he engaged in dating violence against her in violation of University of California (“UC”) policy. John admitted that, after arguing with Jane for hours, he “grabbed her, screamed in her face and shook her” and “eventually dragged her out of the bed to the front door” of his home. Following an investigation, the university found John violated UC policy and he was suspended for three years, resulting in a three-year hold of his degree and diploma. John petitioned for a writ of administrative mandate seeking to set aside the disciplinary decision and suspension, and the trial court denied the petition. On appeal, John contended UCSB failed to provide a fair process and the factual findings were not supported by substantial evidence. Affirming denial of administrative mandate, the Court of Appeal stated: “John fail[ed] to show he was provided an unfair process.” (Doe v. Regents of University of California (Cal. App. 1st Dist., Div. 2, September 30, 2021) 2021 WL 4859797.)

Previously we reported:
No Evidence of Unconscious Bias or Intentional Discrimination.

A Chinese international student enrolled in Idaho State University’s Doctoral Program in Clinical Psychology in 2008. He completed the requisite four years of instruction and wrote and successfully defended his dissertation. However, he failed to complete the last requirement of the program, satisfactory completion of a professional internship consisting of 2,000 clinical hours over the course of 11 months. After he was dismissed from the internship, the university dismissed him from the program altogether. The former student sued, alleging the university violated Title VI because it intentionally discriminated against him based on his race or national origin. After a bench trial, the district court found plaintiff failed to show that intentional discrimination. Affirming, the Ninth Circuit stated: “[W]e take this opportunity to clarify that evidence of unconscious bias against a protected class in an appropriate case may be probative of whether an entity has intentionally discriminated in a Title VI case. But this question is factual, and here the evidence in the record shows that the district court permissibly found that ISU did not intentionally discriminate against Yu.” (Yu v. Idaho State University (9th Cir., Aug. 31, 2021) 11 F.4th 1065.)

The latest:

The panel withdrew its previous opinion. Still affirming, the Ninth Circuit stated: “We decline to address whether implicit bias may be probative or used as evidence of intentional discrimination under Title VI because resolution of this issue is not necessary to the disposition of this appeal, and we see no benefit that would be served by commenting on it.” (Yu v. Idaho State University (9th Cir., Oct. 20, 2021) 2021 WL 4890259.)

Pre-Class-Certification Settlements Require Heightened Scrutiny by Court.

The district court approved a class action settlement before the class was certified. The district court approved the settlement as “fair, reasonable, and adequate” under Federal Rule of Civil Procedure 23(e). An objector challenged that approval, contending the vouchers provided to the class under the settlement were “coupons” under the Class Action Fairness Act (28 U.S.C. § 1712; CAFA). The objector also contended that even if CAFA’s coupon restrictions did not apply, the district court abused its discretion by disregarding warning signs of class counsel’s self-interest that warranted additional scrutiny. The Ninth Circuit noted that if a form of class action settlement relief is considered a “coupon” under CAFA, then additional restrictions apply to the settlement-approval process. CAFA requires courts (1) to apply “heightened scrutiny” to settlements that award “coupons” to class members, and (2) to base fee awards on the redemption value of the coupons, rather than on their face value. Reversing the lower court’s approval of the settlement, the appeals court stated: “We hold that (1) the district court erred in finding that the vouchers are not ‘coupons’ under CAFA, and (2) the district court abused its discretion in failing to apply the requisite heightened scrutiny for pre-certification settlements.” (McKinney-Drobnis v. Oreshack (9th Cir., Oct. 20, 2021) 2021 WL 4890277.)

Churches Have a Duty to Protect Children Participating in Church-Sponsored Programs.

While attending catechism classes at a church in 1988, plaintiff, who was then ten years old, was excused to use the restroom. While he was in a stall, a priest entered and sexually assaulted him by groping the boy and forcing him to perform oral sex on the priest. The priest told the boy that “every boy does this in order to do their First Communion.” Doe returned to class, upset and on the verge of crying, and put his head down on his folded arms. He did not tell his teacher what happened, and the teacher did not ask why Doe was upset or why he had his head down. It happened once more around the same time. By 1984 the Archdiocese had received 25 reports concerning priests in the Archdiocese alone. More generally, by the mid-1980’s the Archdiocese was aware that clergy sexual abuse of minors was a widespread concern across the country. In 1985 an “eye-opening and disturbing” panel discussion at the National Conference of Catholic Bishops “was a defining moment for the Church, amounting for all practical purposes to the first widespread recognition that child and adolescent sexual abuse by the clergy was more than a matter of tragic but isolated incidents.” Doe filed this action on October 16, 2017. His operative, first amended complaint named the Archdiocese, Our Lady of the Rosary, and the priest as defendants. The trial court granted summary judgment in favor of the Archdiocese. Reversing, the Court of Appeal stated: “Does a church have a duty to protect children from sexual abuse by clergy while the children are attending religious school or participating in other church-sponsored programs? Because the answer to that question is ‘yes,’ we reverse the judgment entered after the trial court, which answered that question ‘no.’ ” (Doe v. Roman Catholic Archbishop of Los Angeles (Cal. App. 2nd Dist., Div. 7, Oct. 20, 2021) 2021 WL 4891312.)

California Has Jurisdiction Over Non-Resident Who Committed Tort Here.

While traveling in California, a man assaulted and injured his spouse. Both live in Georgia. The spouse brought a tort action in California superior court. The court concluded that it lacked personal jurisdiction over the assailant and dismissed the action. Reversing, the Court of Appeal stated: “[A]bsent compelling circumstances that would make the suit unreasonable, a court may exercise jurisdiction over a non-resident who commits a tort while present in the state.” “To be sure, both parties would suffer inconvenience, expense, and burdens. Both live in Georgia. Both have retained counsel in California. While Damron has  identified witnesses and documents in Georgia, Doe has identified at least nine witnesses in California who allegedly have relevant information about the assault in Riverside, including hotel employees who called the police for her, a medical responder, a treating physician who examined her for sexual assault, and a police detective, investigator, and two officers. [Citations.] Damron has not made a compelling case that a California forum is unreasonable.” (Doe v. Damron (Cal. App. 1st Dist., Div. 5, Oct. 20, 2021) 2021 WL 4891856.)

Ninth Circuit Introduces a Federal Trial Judge to Family Law Issues.

Pursuant to the Hague Abduction Convention, a district court ordered that a six-year-old be returned to her father in Spain without permitting the mother to develop the evidence necessary to mount her defense. In particular, she argued that returning the child to her father, who she alleged had abused both her and her baby, would present a grave risk of psychological or physical harm to the child. She therefore asked the court to appoint a forensic psychologist to examine the child in depth and provide an expert opinion, which, she believed, would confirm her contested allegations of abuse as well as the psychological harm to the child arising therefrom. But the district court summarily denied the application. Vacating the order and remanding the matter to the lower court for a new trial, the Ninth Circuit stated: “While neither the Convention nor its implementing legislation, the International Child Abduction Remedies Act (“ICARA”), provides for appointment of a psychologist as of right, and this Court establishes no such blanket rule, here . . . the district court’s refusal to permit the requested examination amounted to an abuse of discretion that rendered the subsequent bench trial fundamentally unfair. Second, and independently, the district court erred by failing to make findings of fact adequate to support its order returning the child to Spain.” (Colchester v. Lazaro (9th Cir., Oct. 22, 2021) 2021 WL 4929601.)

Criminal Case Reversed Due to Insufficiency of Expert Evidence.

Two high school students had an ongoing feud. He hit her with a book and was suspended. A while later, something was missing from his locker and he accused her of taking it. She pulled out a device from her purse and told him not come any closer or she would tase him in the you-know-what. The principal confiscated the device and a police officer testified about the device at the juvenile hearing. The juvenile court sustained the petition, concluding she brought a stun gun to school, violating Penal Code §§ 626.10, subdivision (a) and 244.5, subdivision (a). Reversing, the Court of Appeal stated: “Here, the only evidence that M.S.’s device was capable of temporarily immobilizing a person as required for M.S.’s conviction under section 626.10, subdivision (a) came from the expert testimony of Officer Reed. He testified that, based on his training and experience, electrical devices ‘such as’ M.S.’s ‘could immobilize or hurt and in some cases even cause death’ and that ‘a stun gun [could] immobilize somebody of smaller stature.’ Although this issue is close, we are not persuaded this testimony is sufficient to prove beyond a reasonable doubt that M.S.’s ‘over-the-counter’ device was capable of temporarily immobilizing a person. . . . The chief value of an expert’s testimony . . . rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion; . . . it does not lie in his mere expression of conclusion. . . Thus, ‘some substantive factual evidentiary basis, not speculation, must support an expert witness’s opinion.’ ” (In re M.S. (Cal. App. 1st Dist., Div. 3, Oct. 22, 2021) 2021 WL 4931619.)

Official Acts Frustrated Plaintiff’s Attempts to Effectuate Service of Process.

Plaintiff is a self-represented prisoner in a state prison. He sued another prisoner, alleging the other prisoner stabbed him in the neck with a pencil. But the other prisoner was transferred to another prison. At first, plaintiff was unable to determine defendant’s new location. When he located him, the sheriff’s office refused to serve defendant at the prison. The trial court dismissed the action for failure to make timely service. Reversing, the Court of Appeal stated: “[T]he record shows that official acts frustrated Crane’s attempts to serve his civil action on the defendant inmate and that the dismissal of the nonfrivolous action caused a miscarriage of justice. Based on this showing, we conclude Crane’s statutory right of access to the courts was denied and do not reach the constitutional aspects of Crane’s claim of error.” (Crane v. Dolihite (Cal. App. 5th Dist., Oct. 22, 2021) 2021 WL 4929340.)

Claims of False Advertising Preempted Under Federal Law, But Not State Law.

Plaintiff claimed that defendant falsely advertises its frozen chicken products as natural and preservative-free, when in fact they contain synthetic ingredients. The district court found that the United States Department of Agriculture’s Food Safety and Inspection Service had approved defendant’s poultry labels, and thus plaintiff’s claims challenging both the label and defendant’s website advertising were preempted. Affirming in part and reversing in part, the Ninth Circuit stated: “As ConAgra acknowledges, the label ‘nowhere claims that the products, as a whole, . . . contain ‘no preservatives.’ But the website representation does claim that the chicken products as a whole are made without preservatives, artificial flavors, or artificial colors. . . . Accordingly, Cohen’s state law claims challenging ConAgra’s website representation that the chicken products as a whole contain no preservatives, artificial flavors, or artificial colors, [we]re not preempted.” (Cohen v. ConAgra Brands, Inc. (9th Cir., Oct. 26, 2021) 2021 WL 4956243.)

Not Really Forum Shopping; More Like Plaintiff Shopping—Class Action Defendant in One County Says to an Individual Plaintiff in Another County: “We’ll settle with you if you convert your claim to a class action.”

Three matters were going on at the same time: (1) A class action had been filed against defendant in Alameda County; (2) an individual action had been filed against defendant in Orange County; and (3) defendant had petitioned the Judicial Council to coordinate the two actions, and the Judicial Council had referred the petition to the presiding judge of the Alameda County Superior Court for appointment of a judge to hear the petition. While these three matters were pending, the Orange County action settled on the condition that the Orange County plaintiff converted his individual action into a class action and included the same claims alleged in the Alameda County class action. The named plaintiff in the Alameda County class action intervened in the Orange County action’s motion for settlement approval. The Orange County Superior Court approved the settlement. The intervenor appealed, with plaintiff and defendant in the Orange County action serving as respondents. Finding the Orange County plaintiff’s PAGA notice was inadequate, the Court of Appeal reversed, stating the “judicial approval of a settlement that includes [the Orange County plaintiff’s] PAGA cause of action cannot survive review.” (Uribe v. Crown Building Maintenance Co. (Cal. App. 4th Dist., Div. 3, Sep. 30, 2021) 2021 WL 4962724.)

Trial Court Erred in Issuing Mutual Restraining Orders.

In this case, the trial court issued mutual restraining orders in a domestic violence situation. The Domestic Violence Prevention Act (Fam. Code, § 6300 et seq.; DVPA) prohibits mutual orders enjoining both parties unless “[t]he court makes detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily in self-defense.” (Fam. Code, § 6305, subd. (a)(2).) After finding that substantial evidence supported the DVPA order against one party, but not against the other, the Court of Appeal affirmed in part and reversed in part. (K.L. v. R.H. (Cal. App. 4th Dist., Div. 3, Sep. 30, 2021) 2021 WL 4963412.)

Mental Health Diversion.

When someone charged with most crimes is suffering from mental illness, Penal Code § 1001.36 permits that person to bypass prosecution altogether and go to a therapeutic program. If successful in that program, the person will not be prosecuted. But the mental health diversion statute specifically states that people suffering from antisocial personality disorder (ASPD) are excluded. Here, a criminal defendant who has ASPD requested to be diverted. However, that defendant also suffers from other mental health disorders that do qualify for diversion. The trial court denied diversion. Reversing, the Court of Appeal stated: “The central question presented is whether a defendant suffering from an excluded mental health disorder under section 1001.36(b)(1)(A) is statutorily ineligible for mental health diversion based on a different, qualifying mental disorder. We conclude section 1001.36(b)(1)(A) does not wholly preclude from diversion defendants who suffer from both excluded and included mental health disorders; section 1001.36(b)(1)(A) requires only that a defendant suffers from one qualified mental health disorder.” (Negron v. Superior Court (Cal. App. 5th Dist., Oct. 26, 2021) 2021 WL 4963241.)

Son Was Authorized to Sign Arbitration Agreement on Behalf of His Mother.

Plaintiff had given a durable power of attorney to her son, who signed an arbitration agreement on behalf of plaintiff with defendant senior living facility. The son is plaintiff’s guardian ad litem in this litigation. Defendant moved to compel arbitration. The trial court ruled the son was not authorized to sign the arbitration agreement because the power of attorney did not extend to healthcare decisions. Reversing the trial court’s denial of the petition to compel arbitration, the Court of Appeal noted that the durable power of attorney authorized the son to “enter into contracts . . . with respect to provision of residential care for [his mother] in a residential facility.” The appeals court held: “The language of the DPOA authorized Randall to agree that Janet’s legal claims would be submitted to arbitration.” (Gordon v. Atria Management Company, LLC (Cal. App. 1st Dist., Div. 5, Oct. 1, 2021) 2021 WL 4988882.)

American Indians Lack Standing.

Two American Indian tribes sued defendants alleging they were offering gambling that the California Constitution gives American Indians the exclusive right to offer. (Cal. Const., art. IV, § 19, subd. (f).) After plaintiffs were given several opportunities to amend, the trial court sustained defendants’ demurrer without leave to amend. The trial court ruled that, as governmental entities, the Indian tribes and their affiliated business entities are not “persons” with standing to sue under the unfair competition law (Bus. & Prof. Code, §§ 17201, 17204; UCL), and are not “private persons” with standing under the public nuisance statutes (Civ. Code, §§ 3480, 3493). Affirming, the Court of Appeal stated: “The issue we must decide is whether the complaint in this case adequately pleads the asserted claims and contains allegations sufficient to establish the threshold issue of whether any of the named plaintiffs have standing to bring those claims. We agree with the trial court’s conclusion that the complaint does not do so.” (Rincon Band of Luiseno Mission Indians v. Flynt (Cal. App. 4th Dist., Div. 1, Oct. 28, 2021) 2021 WL 5002604.)

Trial Court Abused Discretion in Denying Motion to Change Venue.

Plaintiff is a general contractor who was hired by defendants to build a home in Alameda County. They ended up parting ways after some contentious emails and unfriendly phone conversations. Plaintiff filed a petition for civil harassment in Contra Costa County, the county where he contends he was impacted by the emails and phone calls. Defendant moved to change venue to her county of residence, Alameda County, which the trial court denied. The defendant petitioned for a writ of mandate to vacate the order denying her motion to change venue. Ruling in defendant’s favor and issuing a writ of mandate, the Court of Appeal noted that the general rule is that venue is proper only in the county of the defendant’s residence, and that if the action is for injury to person from a wrongful act or negligence, the county where the injury occurred or the county where some of the defendants reside is a proper court. (Code of Civ. Proc., § 395, subd. (a).) The appeals court rejected plaintiff’s argument that the county where he was impacted by the emails and phone conversations was the place where injury to the person under Code of Civil Procedure § 395, subdivision (a) occurred and concluded the trial court abused its discretion in denying defendant’s motion to change venue. (Williams v. Superior Court (Cal. App. 1st Dist., Div. 1, Oct. 29, 2021) 2021 WL 5027187.)

It Is Not Possible to Be Licensed to Sell Cannabis at a Premises Also Licensed for the Sale of Alcohol.

An Elks lodge that licensed to sell alcohol was also selling cannabis. The Department of Alcohol Beverage Control Department (“Department”) revoked the lodge’s liquor license. The Alcohol Beverage Control Appeals Board (“Board”) overturned that revocation. The Department petitioned the Court of Appeal for a writ of review of the Board’s ruling. Agreeing with the Department and annulling the Board’s decision, the Court of Appeal stated: “Cannabis remains a controlled substance under California law, despite the passage of Proposition 64, which legalized its recreational use. (Health & Saf. Code, §§ 11007, 11054, subd. (d)(13).) The commercial sale of cannabis is regulated under the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) (§ 26000 et seq.). It is not possible to be licensed to sell cannabis at a premises also licensed for the sale of alcohol. (Cal. Code Regs., tit. 16, § 5601, subd. (g).)” (Department of Alcohol Beverage Control v. Alcohol Beverage Control Appeals Board (Cal. App. 4th Dist., Div. 2, Oct. 5, 2021) 2021 WL 5024824.)

Learned Intermediary.

Plaintiff underwent a hip replacement in 2010. In the present action, he sued the surgeon and the implant manufacturer. The manufacturer moved for summary judgment, submitting evidence the surgeon has special training in this type of surgery. He also traveled to England to study with the surgeon who designed the hip implant and stayed abreast of developments in the field and learned about the procedure’s risks from reading scientific studies. The trial court granted the manufacturer’s motion and dismissed the case against the manufacturer. Affirming, the Court of Appeal stated: “Tort law has a special twist when it comes to manufacturers, physicians, and patients. In the case of prescription drugs and implants, the physician stands in the shoes of the product’s ordinary user: a patient learns of the properties and proper use of the drug or implant from the physician. In these cases, the manufacturer’s duty to warn runs to the physician and not to the patient. [] This special twist is called the ‘learned intermediary” doctrine.’” (Gall v. Smith & Nephew (Cal. App. 2nd Dist., Div. 8, Oct. 29, 2021) 2021 WL 5027197.)

Installer Was an Independent Contractor.

Plaintiff purchased a washing machine from defendant Best Buy. The hose was allegedly installed incorrectly, resulting in a leak that caused significant property damage. Best Buy moved for summary judgment. The trial court granted the motion, finding the installer was not an employee of Best Buy but an independent contractor, even though arrangements for the installation were made through Best Buy. Affirming, the Court of Appeal stated: “The carriers’ trucks did not display the Best Buy name or logo. The delivery teams did not wear any Best Buy branded clothing. The equipment used by the carriers’ delivery teams varied by carrier, as each carrier had its own best practices and determined what equipment was necessary to carry out the installations.” (Bacoka v. Best Buy Stores, L.P. (Cal. App. 2nd Dist., Div. 8, Oct. 29, 2021) 2021 WL 5024408.)

Trial Court Erred in Considering Some Evidence in Isolation When it Granted Summary Adjudication of Plaintiff’s FEHA Claim.

Plaintiff tripped on the job a few days after beginning the new position; his supervisor witnessed him fall. Because he didn’t have medical insurance, he waited until after his probationary period was over, when he would be eligible for health benefits, before seeking medical care. A doctor diagnosed a torn meniscus and medial shelf plica and told plaintiff he needed arthroscopic surgery on his left knee. A few days later, the supervisor who witnessed the fall was terminated for, among other reasons, not reporting plaintiff’s fall. Thereafter, plaintiff was also terminated. He sued his former employer under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA). The trial court granted summary adjudication to the defendant on all but two causes of action. On review, the appeals court discussed the trial courts handling of defendant’s contention it had a nondiscriminatory reason for termination, noting the trial court found plaintiff’s evidence cast some doubt on defendant’s claimed reason for terminating plaintiff, but such doubt was insufficient to raise a triable issue of fact as to whether he was terminated based on hits disability. Reversing, the Court of Appeal held that the trial court erred in considering this evidence in isolation. “A plaintiff’s burden is . . . to produce evidence that, taken as a whole, permits a rational inference that intentional discrimination was a substantial motivating factor in the employer’s actions toward the plaintiff.” The appellate court stated: “Our de novo review of the record demonstrates that summary adjudication was improperly granted with respect to Zamora’s disability discrimination and wrongful termination claims, but that summary adjudication in favor of SIS was appropriate with respect to Zamora’s retaliation claim.” (Zamora v. Security Industry Specialists, Inc. (Cal. App. 6th Dist., Oct. 29, 2021) 2021 WL 5037682.)

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