Litigation Update: November 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, Jennifer Hansen, Gary A. Watt, Ryan Wu
Election of Disability Pay Rather than Retirement Benefits by Military Veteran.

Under the Uniformed Services Former Spouses’ Protection Act (10 U.S.C. § 1408(c)(1); USFSPA), courts are authorized to treat veterans’ “disposable retired pay” as community property upon divorce. But in 1989, the U.S. Supreme Court held in Mansell v. Mansell (1989) 490 U.S. 581, that the USFSPA does not grant state courts the power to treat as property divisible upon divorce military retirement pay that was waived to receive veteran disability benefits. In the instant case, the husband is a veteran who is completely disabled. When the husband and wife dissolved their marriage, they stipulated the wife would receive half of his retirement benefits, and that “Erich shall reimburse Raina for any reduction in that amount if he elects to receive disability pay instead of retirement pay.” A year later, the veteran husband opted to receive disability benefits in lieu of retirement benefits. In Martin v. Martin (2022) 520 P.3d 813, the Nevada Supreme Court held the parties divorce decree was enforceable under contract principles and that the USFSPA did not preempt enforcement of that decree. The veteran husband thereafter attempted to proceed in the U.S. Supreme Court without paying the required fees and costs, providing proof that he is a disabled veteran. The Court denied his petition to proceed as a veteran without prepayment of fees and costs. (Martin v. Martin (U.S., Oct. 2, 2023) 2023 WL 6377712.)

Loss of Business Due to COVID-19.

Plaintiff sued its insurers for breach of contract and declaratory judgment after they denied coverage for plaintiff’s lost business income that resulted from its restricted operations and diminished rental revenue due to the COVID-19 pandemic and associated government orders. The trial court granted judgment on the pleadings. On appeal, the court analyzed the policies’ pollution exclusion that stated: “‘pollutants or contaminants’ are defined to include a contaminant that can cause or threaten harm to human health or damage to property, including a ‘bacteria, virus, or hazardous substances’ listed under specified environmental laws.” Affirming as to some insurance companies and reversing as to others, the appeals court stated: “We reject Insurers’ argument that inclusion of the term ‘virus’ in the definition of a contaminant transforms an exclusion that applies to ‘pollution’ (and typically environmental pollution) into one that encompasses the spread of a virus due to the normal human activities of breathing and touching surfaces.” (JRK Property Holdings, Inc. v. Colony Insurance Company (Cal. App. 2nd Dist., Div. 7, Oct. 2, 2023) 96 Cal.App.5th 1.)

Justice Thomas Recused Himself.

John Eastman petitioned for a writ of certiorari after a federal judge ordered that he produce certain privileged documents the court found fell within the crime-fraud exception. The U.S. Supreme Court denied Eastman’s request for a stay. The order of the Court stated: “The petition for a writ of certiorari is denied. Justice Thomas took no part in the consideration or decision of this petition.” (Eastman v. Thompson (U.S., Oct. 2, 2023) 2023 WL 6379015.)

Attorney Fees Incurred in Enforcing a Judgment.

Plaintiffs sued defendant for breach of contract in connection with their rental of defendant’s home. Defendant failed to file an answer, and the trial court entered a default judgment for $59,191. The judgment included $1,000 in attorneys’ fees pursuant to a provision in the parties’ lease agreement authorizing attorneys’ fees to the prevailing party not to exceed $1,000. Later, the trial court granted in part plaintiffs’ motion under Code of Civil Procedure § 685.080, subdivision (a), for an order allowing their costs of enforcing the judgment. The court awarded $27,721 in attorneys’ fees under Code of Civil Procedure § 685.040, which allows as an award of costs attorneys’ fees incurred in enforcing a judgment “if the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.” Code of Civil Procedure Section § 1033.5, subdivision (a)(10)(A), in turn, provides that attorneys’ fees may be awarded as costs where authorized by contract. Affirming, the Court of Appeal stated: “Because the judgment included an award of attorneys’ fees authorized by contract, section 685.040 allowed an award of reasonable attorneys’ fees incurred in enforcing the judgment.” (Nash v. Aprea (Cal. App. 2nd Dist., Div. 7, Oct. 3, 2023) 96 Cal.App.5th 21.)

Prison Officials Not Entitled to Immunity After Inmate Died from COVID-19.

Early in the COVID-19 pandemic, the California Institution for Men (CIM) suffered a severe outbreak. In an attempt to protect inmates, high-level officials in the California prison system transferred 122 inmates to San Quentin State Prison, where there were no known cases of the virus. The transfer sparked an outbreak of COVID-19 at San Quentin that infected over two-thousand inmates and ultimately killed over twenty-five inmates and one prison guard. The wife of one of the deceased inmates sued, claiming that the prison officials had violated her husband’s constitutional and statutory rights. The officials moved to dismiss, asserting that the claims were barred by various federal and state immunities, including qualified immunity. The lower court held that the officials were not entitled to immunity at this stage of the proceedings, and the officials filed an interlocutory appeal. Affirming, the Ninth Circuit stated: “Defendants’ argument fails because it rests on a premise contrary to the Complaint’s allegations. . . . Those decisions include: (1) transferring inmates to San Quentin, as opposed to a prison with architecture more conducive to quarantining a large group of inmates; (2) transferring inmates without proper testing or screening; (3) exceeding CDCR’s COVID-capacity limits on the buses; and (4) failing to enact post-transfer safety protocols such as mandatory masking. In other words, as alleged, a good option did exist; the Complaint suggests that, had Defendants tried, they could have moved the CIM inmates without exposing other inmates to an  unreasonable risk.” (Hampton v. California (9th Cir., Oct. 3, 2023) 83 F.4th 754.)

Mutual Lack of Civility by Two Lawyers.

The parties are each lawyers who represented opposing parties in an underlying family law matter. A deposition was scheduled for defendant’s client at plaintiff’s law office, but it was canceled three days beforehand, allegedly because defendant did not confirm that his client would attend. Notwithstanding cancellation, defendant’s client appeared at the previously-scheduled time. The client left after being told of the cancellation. Defendant arrived a few minutes later. He refused to leave the law office “until he received written confirmation there was no deposition.” Plaintiff opened the exit door and demanded that he leave, which he eventually did. The trial court issued a temporary restraining order against defendant. After a hearing, the lower court issued a three-year civil harassment order against defendant, protecting plaintiff and her law office staff. The Court of Appeal reversed, stating: “The evidence of Volkov’s nonprotected conduct did not support the court’s findings of a willful or knowing course of conduct that would cause a reasonable person, and did cause Hansen, substantial emotional distress.” The appeals court added: “Counsel’s mutual lack of civility in this case lends all the more support for the recommendations of the California Civility Task Force, which warned that ‘[d]iscourtesy, hostility, intemperance, and other unprofessional conduct prolong litigation, making it more expensive for the litigants and the court system.’ . . . Indeed, one of the Task Force’s recommendations would have been particularly helpful in this case: requiring attorneys to take an hour of mandatory continuing legal education devoted to civility.” (Hansen v. Volkov (Cal. App. 2nd Dist., Div. 7, Oct. 4, 2023) 96 Cal.App.5th 94.)

Life Insurance Policy Where the Beneficiary Is the Subject of a Restraining Order.

This case involved three separate appeals. One was an appeal from the issuance of a domestic violence restraining order. The second was from a court order that required a husband to change the beneficiary on a life insurance policy from himself to a charity of the wife’s choice. And the third was from the court’s order that the husband pay $200,000 toward the wife’s attorney fees. As part of the husband’s argument regarding the life insurance policy, he requested a statement of decision that really amounted to an inquisition of the trial court. Affirming, the Court of Appeal stated: “[W]e conclude the trial court did not abuse its discretion by granting Parris’s request for a DVRO. In addition, we reject Christopher’s contentions regarding the life insurance policy. Thus, we have no reason to reverse the order awarding attorneys’ fees to Parris. We also conclude reversal is not required based on the denial of Christopher’s requests for a statement of decision.” (Parris J. v. Christopher U. (Cal. App. 2nd Dist., Div. 4, Oct. 4, 2023) 96 Cal.App.5th 108.)

One Public Agency Suing Another.

The Butte County District Attorney sued the California Department of Water Resources (DWR) after DWR released water from Lake Oroville, seeking penalties and injunctive relief, citing Fish and Game Code § 5650.1. That statute authorizes civil penalties against any “person” who has deposited harmful materials into the waters of this state. The trial court granted summary judgment for DWR. Affirming, the Court of Appeal stated: “DWR had to manage and control, in an emergency, excessive storm waters that threatened the dam. DWR had been accorded the authority to control releases of the water to protect the dam and to reduce downstream damage from floods. That is all that DWR did. It was also undisputed that DWR was proactively addressing issues raised in the draft environmental assessment. The trial court did not err in granting DWR’s motion.” (Oroville Dam Cases (Cal. App. 3rd Dist., Oct. 5, 2023) 96 Cal.App.5th 173.)

Injured While Volunteering at a School.

Plaintiff filed a personal injury action against the defendant and respondent school district after she was seriously injured while volunteering at an elementary school event. Generally, a person “performing voluntary service[s] for a public agency . . . who does not receive remuneration for the services” is excluded from the definition of “employee” under the Workers Compensation Act. (Lab. Code, § 3352, subd. (a)(9).) However, under certain circumstances, usually upon the governing board’s adoption of a resolution, volunteers of statutorily identified organizations can be deemed employees under the Act. (Lab. Code, §§ 3361.5–3364.7.) The trial court entered judgment for the school district. Affirming, the Court of Appeal concluded the school district’s governing board adopted a resolution that converted volunteers such as plaintiffs to employees, thus limiting the remedy of volunteers to the Workers Compensation Act. (Perez v. Galt Joint Union Elementary School District (Cal. App. 3rd Dist., Oct. 5, 2023) 96 Cal.App.5th 150.)

Time Limits in Probate Code § 8226 Found Not to Apply.

A non-beneficiary in a will contended a stated beneficiary of the will should not have had his petition to probate the will granted because the beneficiary filed his petition after the deadline mandated in Probate Code § 8226 notice. The trial court granted the petition and ordered that the will be probated. Affirming, the Court of Appeal stated: “Section 8226(c), with its time limits, is an exception to the general rule permitting a petition to probate a will at any time. An exception or limitation is to be strictly construed.” (Bailey v. Bailey (Cal. App. 2nd Dist., Div. 6, Oct. 10, 2023) 96 Cal.App.5th 269.)

Disbarred Attorney Found to Be a Vexatious Litigant.

This is the first paragraph of this Court of Appeal opinion: “Since July 2016, disbarred California attorney Elizabeth M. Barnson Karnazes has, while self-represented, ‘commenced, prosecuted, or maintained’ nine appeals in this court that have been ‘finally determined adversely’ to her — that is, matters not subject to further appellate review — within the meaning of Code of Civil Procedure section 391, subdivision (b)(1)(i). During the pendency of these appeals, she engaged in a pattern of delay that has burdened this court and the litigants she has sued. On our own motion, we conclude Karnazes is a vexatious litigant, and we impose a prefiling order prohibiting her from filing new litigation in the courts of this state without first obtaining permission from the presiding judge or justice where the litigation is proposed to be filed. (§§ 391, subd. (b)(1)(i), 391.7, subd. (a).).” (Karnazes v. Lauriedale Homeowners Association (Cal. App. 1st Dist., Div. 3, Oct. 11, 2023) 96 Cal.App.5th 275.)

Writ of Attachment for Withheld Commissions to Employees Affirmed.

Defendant, a residential mortgage lender, employed plaintiffs. Both plaintiffs entered into fully integrated contracts with defendant that entitled them to 75 percent of the net revenue generated by loans that originated in their branch office. The next year, defendant unilaterally reduced their compensation. When plaintiffs complained, they were terminated. Plaintiffs sued defendant and filed an application for a writ of attachment. The trial court found both plaintiffs had established the probable validity of their breach of contract claims and issued right to attach orders and authorized writs of attachment for a combined total of $7,192,607.16. On appeal, defendant contended that emails sent subsequent to the contract modified it. Affirming, the Court of Appeal found that substantial evidence supported the trial court’s orders. (Park v. NMSI, Inc. (Cal. App. 2nd Dist., Div. 7, Oct. 12, 2023) 96 Cal.App.5th 346.)

Lis Pendens Should Have Been Expunged Prior to Seeking Unlawful Detainer.

After purchasing property in a nonjudicial foreclosure sale subject to a duly recorded lis pendens, the buyer obtained a judgment of unlawful detainer against the person who filed the lis pendens, without first expunging it. Reversing the judgment, the Court of Appeal stated: “Because the lis pendens clouded Homeward’s title under the sale, and Taptelis was denied the opportunity to assert it in the unlawful detainer trial as a defense to Homeward’s claim of title, we reverse the unlawful detainer judgment.” (Homeward Opportunities Fund 1 Trust 2019-2 v. Taptelis (Cal. App. 6th Dist., Oct. 12, 2023) 96 Cal.App.5th 299.)

Violation of the Racial Justice Act Constitutes a Miscarriage of Justice.

A criminal defendant was convicted of murder. On appeal, he contended the prosecutor violated the Racial Justice Act (Pen. Code, § 745; RJA) during cross-examination of defendant and during final argument. The RJA is violated when: “During the defendant’s trial, in court and during the proceedings, . . . an attorney in the case . . . used racially discriminatory language about the defendant’s race, ethnicity or national origin, . . . whether or not purposeful.” One of the things the prosecutor said during argument was: “He bragged about all the women he was able to fool with his good looks, and he admitted to having an ambiguous ethnic presentation and that people that don’t know him think he’s something other than Black.” The defendant also contended on appeal that his own defense counsel was ineffective for failing to raise violations of the RJA at the sentencing hearing. In reversing the defendant’s conviction, the Court of Appeal stated: “We have concluded that the Legislature acted within its law-making authority when it declared in the RJA that the use of racially discriminatory language in a criminal trial constitutes a miscarriage of justice, that the prosecutor violated the statute when she referred to appellant’s complexion and ‘ambiguous ethnic presentation’ as reasons to doubt his credibility, and that his counsel was ineffective for failing to bring this statutory violation to the attention of the trial court at the earliest possible opportunity.” (People v. Simmons (Cal. App. 2nd Dist., Div. 6, Oct. 12, 2023) 96 Cal.App.5th 323.)

Playing Games with Requests for Admissions Can Be Costly.

Before trial, plaintiffs requested by email that defendant’s counsel stipulate to the “authenticity of medical records as well as that they are business records.” Having received no response to the email, plaintiffs served requests for admission on defendant, requesting she admit that the medical records were genuine and were “business records within the meaning of California Evidence Code § 1271.” Defendant served responses in which she admitted the genuineness of the medical records but denied they were business records. After that, plaintiffs obtained declarations from the custodian of records for the health care providers, but defendant’s counsel still refused to stipulate the records qualified as business records. Once again, plaintiffs served requests for admissions requesting defendant admit the genuineness of the subpoenaed medical records and that the records were business records. Defendant denied the requests for admissions. After a trial in plaintiffs’ favor, plaintiffs moved for attorney fees and costs pursuant to Code of Civil Procedure § 2033.420 on the ground defendant unreasonably denied several requests for admissions regarding the status of certain medical records as business records within the meaning of Evidence Code § 1271. The trial court denied the motion. Reversing and remanding for the trial court to determine the amount to which plaintiffs are entitled for proving the medical records were business records. (Vargas v. Gallizzi (Cal. App. 2nd Dist., Div. 7, Oct. 13, 2023) 96 Cal.App.5th 362.)

Prisoner Awaiting Execution Has No Right to Timely Disclosure of Information About Drugs and Procedures to Be Used.

Plaintiff is a prisoner in Idaho facing lethal injection. He brought an action to challenge Idaho’s execution practices, including the state’s alleged failure to timely disclose information about the drugs and procedures to be used during an execution. He argued the state’s untimely disclosures violate his rights under the First Amendment. While the Ninth Circuit did order the lower court to permit the prisoner to amend his pleadings, it ruled against him on his First Amendment claims, stating: “Here, notwithstanding the significant positive role played by public access to execution-related information [], Creech has not alleged that the processes he seeks access to have historically been open to the public.” (Creech v. Tewalt (9th Cir., Oct. 13, 2023) 84 F.4th 777.)

No Article III Standing to Challenge Arizona’s Use of Voting Machines in Its Elections.

Plaintiffs, the Republican nominees for Governor and Secretary of State of Arizona, filed an action before the 2022 general election, contending that Arizona’s use of electronic tabulation systems violated the federal Constitution. The district court dismissed their operative first amended complaint for lack of Article III standing. Plaintiffs’ candidacies failed at the polls, and their various attempts to overturn the election outcome in state court have to date been unavailing. They no longer sought any relief concerning the 2022 election, but instead sought to bar use of electronic tabulation systems in future Arizona elections. Affirming, the Ninth Circuit stated: “We agree with the district court that Plaintiffs’ ‘speculative allegations that voting machines may be hackable are insufficient to establish an injury in fact under Article III.’” (Lake v. Fontes (9th Cir., Oct. 16, 2023) 83 F.4th 1199.)

Trial Court Erred in Excluding Plaintiff’s Medical Expert from Testifying.

Plaintiff is a tenant who sued the defendant landlord for personal injuries for exposure to toxic mold. Defendant moved in limine to exclude plaintiff’s expert from testifying about the medical causation of her illnesses due to mold. The trial court granted the motion in limine and then dismissed the case. On appeal, such an order is reviewed for abuse of discretion. In its analysis, the Court of Appeal noted that there are two methods to prove mold is the cause of an illness: (1) a methodology generally recognized in the scientific community to determine mold as the cause; and (2) a doctor who examines a patient may use a medical differential diagnosis to determine mold as the cause of a diagnosed condition. Plaintiff’s expert in this case who is board certified in allergy and immunology attempted to use both methods. Reversing, the appeals court stated: “Because the medical expert was qualified and his opinion was based on facts and a differential diagnosis, the trial court erred in excluding his evidence.” (Brancati v. Cachuma Village, LLC (Cal. App. 2nd Dist., Div. 6, Oct. 16, 2023) 2023 WL 6803375.)

Idaho Reneged on Treaty.

American Indians sued the Governor of Idaho to enforce the 1868 Treaty of Fort Bridger between the United States and several bands of the Shoshone and Bannock Tribes, including the Shoshone’s Northwestern Band. Under the treaty, the affiliated Shoshone and Bannock Tribes ceded most of their territory to the United States. At the same time, the tribes expressly reserved their right to hunt on unoccupied lands of the United States. It is undisputed that the tribes’ reserved hunting right remains valid. Today, Idaho officials contended the tribes’ reserved hunting rights are contingent on permanent residence on a designated reservation. The district court dismissed the case for failure to state a claim. Reversing, the Ninth Circuit stated: “We conclude that the 1868 Treaty does not make maintenance of the Tribes’ reserved hunting rights contingent on permanent residence on a designated reservation.” (Northwestern Band of the Shoshone Nation v. Wooten (9th Cir., Oct. 17, 2023) 83 F.4th 1205.)

Arbitration Award Reversed Based on Arbitrator Bias.

In a commercial arbitration over a canceled real estate deal, the arbitrator found the seller in breach based largely on an assessment of witness credibility. Reasoning that she had been in the country for decades, engaged in sophisticated business transactions, and previously functioned in some undisclosed capacity as an interpreter, the arbitrator felt that her use of an interpreter at the arbitration was a tactical ploy to seem less sophisticated. After the arbitration, the winning party moved to confirm the award and the losing party moved to vacate. The trial court confirmed the award. Reversing, the Court of Appeal stated: “Here, the arbitrator’s credibility finding rested on unacceptable misconceptions about English proficiency and language acquisition. These misconceptions, in turn, give rise to a reasonable impression of possible bias on the part of the arbitrator requiring reversal of the judgment and vacating the arbitration award.”  (FCM Investments, LLC v. Grove Pham, LLC (Cal. App. 4th Dist., Div. 1, Oct. 17, 2023) 2023 WL 6826821.)

Unfair Labor Practices by Hotel Owner.

A union was the exclusive collective bargaining representative for a unit of employees whom plaintiff employed at a hotel. The bargaining unit included kitchen workers, dining and room service employees, housekeepers, garage and front desk employees, gardeners, maintenance employees, and more. Plaintiff temporarily closed the hotel for extensive renovations and laid off all the unit employees. As plaintiff prepared to reopen the hotel, plaintiff conducted a job fair to fill about 306 unit positions. Approximately 176 union-affiliated former employees applied for those positions. Plaintiff refused to rehire 152 of them. The National Labor Relations Board found that plaintiff committed unfair labor practices by refusing to rehire former employees because of their union affiliation, refusing to recognize and bargain with the union, and unilaterally changing unit employees’ terms and conditions of employment, in violation of §§ 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3), (5). The board ordered various remedies, including reinstatement of the former employee applicants who were affected by plaintiff’s discriminatory conduct. Plaintiff petitioned for review of the board’s order and a supplemental remedial order, and the board cross-applied for enforcement. Denying plaintiff’s petition, the Ninth Circuit stated: “Because the Board’s findings are supported by substantial evidence, we deny Kava’s petition for review and grant the Board’s application for enforcement.” (Kava Holdings, LLC v. National Labor Relations Board (9th Cir., Oct. 18, 2023) 85 F.4th 479.)

Appellant’s Brief Did Not Follow the Rules of Appellate Procedure.

The appellant’s briefs did not properly cite to the record and were replete with unsupported legal and factual assertions. The Court of Appeal found that he forfeited his contentions on appeal. (L.O. v. Kilrain (Cal. App. 2nd Dist., Div. 6, Oct. 18, 2023) 2023 WL 6857013.)

Stepchild’s Right to Intestate Succession.

After a man died intestate, his stepson from a previous marriage petitioned the probate court to be deemed an heir. In his petition, the stepson alleged he and decedent had a lifelong relationship, and that decedent would have adopted him but for an objection from the stepson’s biological father, which created a legal barrier. Probate Code § 6454 states: “For the purpose of determining intestate succession by a person or the person’s issue from or through a foster parent or stepparent, the relationship of parent and child exists between that person and the person’s foster parent or stepparent if both of the following requirements are satisfied: [¶] (a) The relationship began during the person’s minority and continued throughout the joint lifetimes of the person and the person’s foster parent or stepparent. [¶] (b) It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier.” When it was revealed that the biological father predeceased decedent, the stepson claimed an equitable right to be considered an heir. The Court of Appeal held that the stepchild “has standing to claim natural parentage heirship even though he is not the Decedent’s biological child.” (Estate of Martino (Cal. App. 4th Dist., Div. 1, Oct. 18, 2023) 2023 WL 6859756.)

Family Court Erred in Denying Restraining Order.

The parties are the parents of a six-year-old and a three-year-old. The mother sought a restraining order against the father, claiming she suffered abuse because the father requested the police conduct welfare checks of the children seven times within a three-week period and sent the mother and the mother’s lawyer 130 messages over a 40-day period. The family court denied the request. Reversing, the Court of Appeal stated: “Mother adduced evidence that Father made multiple requests for police welfare checks not for any legitimate reason but based on false information to harass her. If fully credited, that evidence alone was sufficient to demonstrate abuse under the DVPA and to require the issuance of a DVRO, and the court erred in finding otherwise.” (Jan F. v. Natalie F. (Cal. App. 2nd Dist., Div. 1, Oct. 18, 2023) 314 Cal.Rptr.3d 369.)

Death Row Prisoner States a Claim Because He Requested Postconviction Counsel 26 Years Ago, But No Appointment Yet.

In 1997, a California court sentenced appellant to death. That same year, the California legislature codified a longstanding judicial rule guaranteeing the appointment of postconviction relief counsel to indigent prisoners who had been convicted and sentenced to death. (Gov’t. Code, § 68662(a) and Pen. Code, § 1509(b).) The defendant requested the appointment of postconviction habeas counsel 26 years ago. To this day, no lawyer has been appointed. The condemned man filed a federal habeas corpus petition. The district court dismissed the petition for failure to state a claim. Reversing in part, the Ninth Circuit stated: “Redd has waited over a quarter of a century for California to appoint counsel to aid him in pursuing his capital habeas petition, despite state law assurances that counsel would be available to him promptly. As a result, the likelihood that a viable petition can be filed in the future is diminishing to the vanishing point, given the likely unavailability of witnesses and documents concerning the long-ago crime and trial. For the reasons surveyed in this opinion, we conclude that the district court should not have dismissed Redd’s procedural due process claim for failure to state a claim at the pleading stage. We reverse the dismissal and remand for further proceedings consistent with this opinion.” (Redd v. Guerrero (9th Cir., Oct. 20, 2023) 84 F.4th 874.)

Attorney Fees After Success in Challenging Administrative Decision.

John Doe was suspended for a year from the University of California, Davis, for violating its policy against sexual violence and harassment. He successfully challenged the decision in an administrative mandate action, and the suspension was overturned. Doe then unsuccessfully moved for attorney fees under Code of Civil Procedure § 1021.5, which is a codification of the private attorney general doctrine, and also under Government Code § 800, which applies when a party successfully challenges an administrative decision that was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof. The trial court denied Doe’s request for attorney fees. Affirming in part and reversing in part, the Court of Appeal stated: “We conclude the trial court properly denied attorney fees under section 1021.5 on the basis that the litigation did not confer ‘a significant benefit . . . on the general public or a large class of persons.’ But we also conclude the court applied an incorrect legal standard in denying fees under section 800, which authorizes an award of up to $7,500 if the challenged administrative determination ‘was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof.’” (John Doe v. Atkinson (Cal. App. 1st Dist., Div. 1, Oct. 19, 2023) 314 Cal.Rptr.3d 480.)

The Privette Doctrine Applied When Property Owner Had Hired a Management Company.

Plaintiff is an electrical technician. He was injured when a broken hatch providing access to the roof of a commercial building slammed shut on his back, herniating several of his discs. He sued the building’s owner and management company for negligence and premises liability, contending that defendants had failed either to repair a dangerous condition of which they were aware or to warn him of it. A jury returned a special verdict for Acosta and awarded him damages in excess of $12.6 million. The evidence was that the owners of the building had hired a property management company to manage the building. The management company hired a roof inspector who informed the management company of the dangerous roof hatch. The management company did not repair the roof. The evidence also showed that plaintiff was an employee of a lighting company the management company had hired. Reversing, the Court of Appeal stated: “As we discuss, under Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny, a property owner who hires an independent contractor may be liable to the contractor’s employee for injuries sustained on the job only if the owner exercises retained control over any part of the contractor’s work in a manner that affirmatively contributes to the worker’s injuries, or the employee is injured by a concealed hazard that is unknown and not reasonably ascertainable by the contractor. In the present case, Acosta does not contend that defendants exercised any retained control over the work site, and the  undisputed evidence established that Acosta and his employer could reasonably have ascertained the hazardous condition of the site—i.e., that the mechanism designed to hold the roof hatch open was broken and the ladder that provided access to the hatch did not reach all the way to the roof. Accordingly, we will direct entry of judgment for defendants.” (Acosta v. Mas Realty, LLC (Cal. App. 2nd Dist., Div. 3, Oct. 19, 2023) 2023 WL 6889820.)

Commercial Speech Exemption.

Plaintiff is engaged in the business of providing addiction treatment services and related medication. Plaintiff sued defendant for allegedly repudiating an agreement for plaintiff’s right to purchase some ownership interest in defendant. Defendant cross-complained against plaintiff under a non-disclosure agreement (NDA), contending plaintiff never intended to abide by the NDA, but entered the agreement to attract investors and boost plaintiff’s stock prices. The cross-complaint alleged that plaintiff issued several press releases that allegedly made misrepresentations and improperly disclosed confidential information about a treatment it was developing for opioid overdose. In response to the cross-complaint, plaintiff/cross-defendant filed a motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16), contending the press releases were protected activity. The trial court granted the motion. Reversing, the Court of Appeal held the press releases fell within the commercial speech exemption of Code of Civil Procedure § 425.17, explaining that when the exemption applies, the challenged speech is not protected by the anti-SLAPP statute. (BioCare, Inc. v. VDM Biochemicals, Inc. (Cal. App. 4th Dist., Div. 3, Oct. 23, 2023) 2023 WL 6968763.)

Summary Judgment for Employer Reversed.

Plaintiff claimed the nursing facility where she worked as an aide for nine years was so chronically understaffed—and she was so persistently overworked—that she never took a rest break and frequently had to work through her meal breaks. After her termination, plaintiff brought a claim under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA) against defendants. Defendants moved for summary judgment, arguing that plaintiff lacked standing to bring a representative PAGA action because she did not suffer a Labor Code violation within the limitations period. But the trial court granted summary judgment on a different, and perhaps broader, issue, holding that plaintiff had not offered any “competent proof that one or more cognizable Labor Code violation[s] occurred during her employment in connection with her right to meal and rest periods.” The court entered a judgment of dismissal. Reversing, the Court of Appeal found defendants did not meet their initial burden of establishing plaintiff’s lack of standing, and as such, the court erred by granting summary judgment. (Arce v. The Ensign Group, Inc. (Cal. App. 2nd Dist., Div. 5, Oct. 24, 2023) 2023 WL 6890702.)

No Negligent Undertaking on Part of Owners of Parking Structure.

After consuming excessive amounts of alcohol, plaintiff left a restaurant in a shopping center and walked through a nearby parking structure owned by defendant while engaging in “displays of nonsensical horseplay.” She found herself on an upper story of the parking structure where she seated herself on a 43-inch-tall perimeter wall, lost her balance, and fell backward out of the structure to the ground several stories below. Plaintiff sustained serious injuries. She sued defendant for premises liability, alleging the parking structure had a physical defect or dangerous condition. The trial court denied defendant’s motion for summary judgment. Defendant filed a petition for writ of mandate. In the appellate court, plaintiff contended that by having security guards monitoring the parking structure, defendant was responsible under a theory of negligent undertaking. The Court of Appeal granted the writ, stating: “The Irvine Company’s retention of security services did not increase any risk to Demirelli and she did not rely on that undertaking to her detriment. Therefore, The Irvine Company did not owe a duty to Demirelli and summary judgment should have been granted.” (Irvine Company LLC v. Superior Court of Orange County (Cal. App. 4th Dist., Div. 3, Oct. 24, 2023) 2023 WL 6990973.)

Denial of Anti-SLAPP Motion Affirmed Where the Complaint Targeted Failure to Take Action.

The City of Orange terminated the license of a provider of homeless services, citing safety concerns. Subsequently, the city council held an executive (i.e., closed) session to discuss potential unspecified litigation. Afterward, the city attorney exited the meeting and declared that the council had “unanimously confirmed” the termination of the homeless provider’s license. The homeless provider sued the city for writ of mandate. The city filed an anti-SLAPP motion pursuant to Code of Civil Procedure § 425.16, arguing that because the agenda described the meeting as discussing legal matters, the complaint/petition arose out of protected activity. The city took the position that no action was taken at the meeting, and that the unanimous approval described in the minutes simply reflected inaction—i.e., that the city council chose to do nothing to override the city manager’s decision to terminate the license.  The trial court denied the motion. Affirming, the Court of Appeal agreed with the lower court’s assessment that the complaint targeted the city’s failure to provided adequate notice of the confirmation of the license termination rather than anything that was said at the meeting. (Mary’s Kitchen v. City of Orange (Cal. App. 4th Dist., Div. 3, Oct. 25, 2023) 2023 WL 7011102.)

Failure to Install Security Cameras Not the Basis for Creating a Dangerous Condition of Public Property.

A man drove to a city park to play basketball. He was shot and killed while he was in his vehicle in the parking lot. The decedent’s parents filed a wrongful death action against the city, alleging negligent creation of a dangerous condition by failing to install security cameras in an area with ongoing criminal activity. The trial court sustained the city’s demurrer without leave to amend. Affirming, the Court of Appeal stated: “We conclude the FAC does not allege sufficient facts that the City’s failure to provide ‘adequate precautions’ can form the basis of a dangerous condition of public property claim.” (Summerfield v. City of Inglewood (Cal. App. 2nd Dist., Div. 8, Oct. 25, 2023) 2023 WL 7012652.)

$457,863 Deducted from Award of Attorney Fees “to account for plaintiff’s counsel’s . . . lack of civility throughout the entire course of this litigation.”

The trial court awarded attorney fees to a plaintiff who prevailed in his Fair Employment and Housing Act case (Gov. Code, § 12900 et seq.). The award was supposed to be for $1,144,659.36, but the court applied a negative multiplier of .4 “to account for [p]laintiff’s counsel’s . . . lack of civility throughout the entire course of this litigation.” That deduction brought the award down to $686,795.62. Affirming the negative multiplier, the Court of Appeal noted that the record supported the trial court’s implied finding that attorney Perry Smith’s “repeated and apparently intentional lack of civility throughout the entire course of this litigation” resulted in more costly litigation. (Snoeck v. Exaktime Innovations, Inc. (Cal. App. 2nd Dist., Div. 3, Oct. 25, 2023) 2023 WL 7014096.)

Wanna Bet?

Plaintiff is a licensed junket operator that loans funds to gamblers. Defendant borrowed money from plaintiff and didn’t pay back about $930,000. Plaintiff sued defendant for breach of contract and other causes of action. The trial court granted defendant’s judgment on the pleadings and dismissed the action. Affirming, the Court of Appeal stated: “During our state’s infancy, . . . our state imported the English common law rule that prohibits resort to the courts to enforce gambling debts. [] In the intervening 173 years, our state has legalized many discrete types of gambling. Does this shift to a selective and partial legalization of gambling warrant the abandonment of the common law rule shuttering the California courts to lawsuits seeking to enforce gambling debts? We hold that it does not. The public policy basis for not legalizing gambling and the public policy basis for not providing a judicial forum to enforce gambling debts are distinct; erosion of the former does not call the latter into question.” (Tak Chun Gaming Promotion Company Limited v. Long (Cal. App. 2nd Dist., Div. 2, Oct. 26, 2023) 2023 WL 7036332.)

Cities Can No Longer Reduce a Lot’s Residential Capacity.

The Housing Crisis Act of 2019, codified at Government Code § 66300 et seq., is among the measures that the California Legislature has adopted to address the state’s housing shortage. Subdivision (b)(1)(A) of § 66300 prohibits affected cities from (1) enacting any policy that changes the zoning of parcels to “a less intensive use” or (2) “reducing the intensity of land use” within a zoning district to below what was allowed under zoning ordinances in effect on January 1, 2018. In July 2020, defendants City of Culver City and the City Council of the City of Culver City adopted Ordinance No. 2020-010, which amended the city’s zoning code, changing development standards in its single-family residential, or R-1, zone. Among other changes, the ordinance decreased the square footage of a house that could be built on a lot. Plaintiffs filed a petition for writ of mandate seeking an order declaring the ordinance void. Following a hearing on the petition, the trial court determined the ordinance violated section 66300 because the square footage reduction impermissibly reduced the intensity of land use. Affirming, the Court of Appeal stated: “The legislative history shows an intent to ensure that local governments do not enact policies that delay housing development or reduce a lot’s residential capacity.” (Yes in My Back Yard v. City of Culver City (Cal. App. 2nd Dist. Div. 4, Oct. 27, 2023) 2023 WL 7101272.)

Doctors Who Perform Abortions in Arizona Can Be Charged with a Crime.

In 2021, Arizona enacted new abortion laws that criminalize the performance of abortions sought solely because of genetic abnormalities in the fetus or embryo. This suit by Arizona physicians, medical associations, and advocacy groups claimed that criminalizing the performance of certain abortions was unconstitutionally vague. The district court denied a preliminary injunction, finding that Plaintiffs lacked standing. Reversing, the Ninth Circuit stated: “Contrary to the holding of the district court, standing does not also require that the economic injury be sustained while engaging in an activity separately protected by the Constitution . . . . Rather, our cases make clear that an Article III injury in fact can arise when plaintiffs are simply prevented from conducting normal business activities.” (Isaacson v. Mayes (9th Cir., Oct. 30, 2023) 84 F.4th 1089.)

Free Speech Zones.

Plaintiff visited the Hmong New Year Festival hoping to distribute religious tokens to attendees. The festival, a privately organized event, took place at the state-owned California Exposition and State Fair (Cal Expo) fairgrounds in Sacramento County. Cal Expo police officers told plaintiff that he could distribute his tokens in designated zones, referred to as Free Speech Zones, outside the entry gates but not inside the festival itself. Plaintiff nevertheless purchased a ticket, entered the festival, and began handing out the tokens. Officers removed him from the fairgrounds, and plaintiff brought this suit, claiming violation of his First Amendment rights under the United States Constitution and the Speech Clause of the California Constitution. The district court granted summary judgment for defendant. Affirming, the Ninth Circuit stated: “[W]e hold that the exterior, unticketed portion of Cal Expo is a public forum under the California Speech Clause and the interior, ticketed portion of the fairgrounds is a nonpublic forum. We further hold that Cal Expo’s Free Speech Zones were a valid regulation of [plaintiff’s] speech in the exterior fairgrounds area and Cal Expo’s prohibition on distributing literature in the enclosed area was likewise permissible.” (Camenzind v. California Exposition and State Fair (9th Cir., Oct. 31, 2023) 84 F.4th 1102.)

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