Litigation

Litigation Update: October 2019

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

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District
  • Managing Editor, Reuben Ginsburg
  • Editors, Dean Bochner, Glenn Danas, Julia Shear Kushner, Jessica Riggin, Kenneth Wang, and David Williams
There Is No Antiremoval Presumption in CAFA Cases.

Plaintiff filed a wage and hour class action in California state court, and defendant removed it to federal court pursuant to the Class Action Fairness Act (28 U.S.C. §§ 1332, 1453, & 1711-1715; CAFA). The federal district court promptly remanded the matter back to state court. The Ninth Circuit Court of Appeals reversed, noting: “In some of our early cases interpreting CAFA, we adopted legal standards that were influenced by a general ‘presumption against federal jurisdiction.’ [Citation.] The Supreme Court has made clear that regardless of whether such a presumption exists in run-of-the-mill diversity cases, ‘no antiremoval presumption attends cases invoking CAFA.’ [Citation.].” Thus, the appeals court vacated the remand order and directed the federal district court to permit the parties to submit evidence and arguments on the amount in controversy. (Arias v. Residence Inn by Marriott (9th Cir., Sept. 3, 2019) 936 F.3d 920.)  

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/03/19-55803.pdf

The Spoliation Exception to the Litigation Privilege.

Two drivers had a spat over a disabled parking space in a shopping center. One pled no contest to misdemeanor vandalism after the other reported that his car had been keyed. The one who pled no contest then sued the one with the keyed vehicle for various torts related to the criminal complaint, including abuse of process. The trial court granted defendant’s motion for judgment on the pleadings premised on the litigation privilege (Civ. Code, § 47). Plaintiff appealed, arguing that defendant scratched his own car, thereby depriving her of the ability to use his vehicle in an unaltered state and preventing her from defending against the criminal complaint. The Court of Appeal noted that the spoliation exception to the litigation privilege applies only where the alleged alteration or destruction is intended to deprive a party of the use of the evidence. Affirming, the appellate court stated: “In any event, as intentional spoliation does not exist any longer as a tort, and the legislative history is devoid of any intention to preserve tort liability for communications in furtherance of spoliation otherwise, the exception to the litigation privilege does not have any application to [plaintiff’s] action.” (Davis v. Ross (Cal. App. 3rd Dist., Sept. 3, 2019) 39 Cal.App.5th 627.)

https://www.courts.ca.gov/opinions/documents/C086291.PDF

License to Steal.

Police officers executed a search warrant seeking evidence of illegal gambling and gave plaintiffs an inventory indicating that the officers seized approximately $50,000. Plaintiffs alleged that the officers actually seized $151,380 in cash and another $125,000 in rare coins. A federal district court granted summary judgment in favor of defendants. Affirming, the Ninth Circuit stated: “We sympathize with [plaintiffs]. They allege the theft of their personal property by police officers sworn to uphold the law. If the City Officers committed the acts alleged, their actions were morally reprehensible. Not all conduct that is improper or morally wrong, however, violates the Constitution. Because [plaintiffs] did not have a clearly established Fourth or Fourteenth Amendment right to be free from the theft of property seized pursuant to a warrant, the City Officers are entitled to qualified immunity.” (Jessop v. City of Fresno (9th Cir., Sept. 4, 2019) 918 F.3d 1031.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/04/17-16756.pdf

The Litigation Privilege Does Not Protect Intentional Interference with Contract.

A law firm represented an employee in an action against her former employer and its principal. The agreed fee was a percentage of any recovery plus all attorney fees and costs awarded by the trial court. A jury awarded damages against the principal and no damages against the former employer. The trial court awarded the employee $136,050 in attorney fees and $12,622.46 in costs against the principal. The law firm sought collection, but was unsuccessful. Several years later, the employee contacted the principal on Facebook expressing interest in his well-being, and the two met for lunch. The two resumed their friendship. The law firm then subpoenaed the principal’s bank records. At that point, the employee and the principal signed a settlement and mutual release, releasing the principal from the judgment and all fees and costs. They sent it to the law firm, which sued the principal for intentional interference with contract and other torts. The trial court entered judgment in favor of the law firm for $409,351.81. On appeal, the principal contended the litigation privilege precluded the law firm’s claims and there was insufficient evidence of intentional interference. Affirming, the Court of Appeal held that the litigation privilege did not apply to the principal’s tortious course of conduct, and substantial evidence supported the judgment. (Mancini & Associates v. Schwetz (Cal. App. 2nd Dist., Div. 6, Sept. 4, 2019) 39 Cal.App.5th 656.)

https://www.courts.ca.gov/opinions/documents/B290498M.PDF

“If you shut up truth, and bury it underground, it will but grow,” Emile Zola.

An African-American, board-certified head and neck surgeon at two Department of Veterans Affairs (the VA) institutions, sued the VA and his supervisors for violation of 45 U.S.C. § 1985(2) for conspiring to deter him from testifying in a colleague’s and his own civil rights cases. Shortly after watching plaintiff testify on C-SPAN, supervisors re-assigned him to a lesser position and relocated plaintiff from an executive suite to an inferior office. A federal district court granted summary judgment in favor of the VA. The Ninth Circuit reversed the grant of summary judgment on plaintiff’s conspiracy claim, stating: “[Plaintiff] has alleged that VA employees retaliated against him based on his testimony in the [colleague’s] federal civil rights case and in his own case. We hold that he has alleged a cognizable injury and may pursue that claim. [Plaintiff] can state a claim even if he cannot show that either he or [the colleague] were hampered in being able to present an effective case.” (Head v. Wilkie (9th Cir., Sept. 5, 2019) 936 F.3d 1007.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/05/17-55942.pdf

Submission of False Claims to Medicare.

A federal district court dismissed plaintiff’s qui tam case against a medical equipment supplier. In the complaint, she alleged that defendant delivered durable medical equipment to Medicare patients before obtaining a detailed written order from a physician, and that if Medicare knew about these circumstances, Medicare would have refused to pay defendant’s claims. Reversing, the Ninth Circuit found that plaintiff sufficiently alleged that: (1) defendant submitted false claims; (2) defendant acted with scienter; and, (3) the false claims were material to the government. (Godecke ex rel. United States v. Kinetic Concepts, Inc. (9th Cir., Sept. 6, 2019) 937 F.3d 1201.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/06/18-55246.pdf

Suing the Government for Not Keeping Our Water Clean.

Plaintiffs brought this action against the United States alleging that the drainage system managed by the government discharges pollutants into surrounding waters in violation of the Clean Water Act (33 U.S.C. §§ 1251-1387; CWA). The CWA generally requires that government agencies obtain a National Pollutant Discharge Elimination System permit before discharging pollutants from any point source into navigable waters of the United States. However, there is an exception “ ‘for discharges composed entirely of return flows from irrigated agriculture.’ ” Plaintiffs appealed several rulings by a federal district court that ultimately led to a stipulated dismissal. A principal argument on appeal was that the trial judge required plaintiffs to prove the discharges were not exempt, rather than requiring the government to prove the discharges were exempt. Reversing, the Ninth Circuit found the trial court erred by placing the burden on plaintiffs rather than on the government. (Pacific Coast Federation of Fishermen’s Ass’ns v. Glaser (9th Cir., Sept. 6, 2019) 937 F.3d 1191.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/06/17-17130.pdf

“ . . . And some of the things folks do is nice, and some ain’t nice, but that’s as far as any man got a right to say,” John Steinbeck, The Grapes of Wrath.

John Steinbeck registered and renewed the copyrights to his works, including The Grapes of Wrath, Of Mice and Men, East of Eden, and The Pearl, so they were protected by the version of the Copyright Act in effect at the time. When John Steinbeck died in 1968, he left his interests in his works to his third wife, Elaine. John’s sons by a previous marriage each received a $50,000 gift in a trust. In 1981, following the 1976 amendments to the Copyright Act, the Steinbeck sons sued Elaine, accusing her of fraud. In 1983, the action was settled. After further litigation between the sons and the executrix of Elaine’s estate, the executrix sued the sons alleging breach of the 1983 settlement agreement, slander of title, and tortious interference with economic advantage. A jury awarded plaintiff $5.25 million in compensatory damages and $7.9 million in punitive damages. The Ninth Circuit upheld the compensatory damages and vacated the punitive damages in an opinion that quoted from Charles Dickens’ Bleak House: “ ‘This “suit has, in course of time, become so complicated, that . . . no two . . . lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause: innumerable young people have married into it;” and, sadly, the original parties “have died out of it.” A “long procession of [judges] has come in and gone out” during that time, and still the suit “drags its weary length before the Court.” ’ ”  (Kaffaga v. Estate of Steinbeck (9th Cir., Sept. 9, 2019) 2019 U.S. App. LEXIS 27106.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/09/18-55336.pdf

“I have as much privacy as a goldfish in a bowl,” Princess Margaret.

Plaintiff is a data analytics company that collects and compiles information. One of the sources for its information is the public profiles on defendant’s professional networking website. Defendant has taken steps to prevent plaintiff from having access to this public information. Plaintiff contends defendant’s actions will put it out of business. A federal district court granted a preliminary injunction in favor of plaintiff, forbidding defendant from denying plaintiff access to publicly available member profiles. Affirming the grant of the preliminary injunction, the Ninth Circuit stated: “Internet companies and the public do have a substantial interest in thwarting denial-of-service attacks and blocking abusive users, identity thieves, and other ill-intentioned actors. . . . Although an injunction preventing a company from securing even the public parts of its website from malicious actors would raise serious concerns, such concerns are not present here.” (HiQ Labs, Inc. v. LinkedIn Corp. (9th Cir., Sept. 9, 2019) 2019 U.S. App. LEXIS 27107.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/09/17-16783.pdf

Robocalls.

Montana has a statute that prohibits automated telephone calls for the purpose of selling goods, gathering statistics, or promoting political campaigns unless the called party gives permission to a live operator before the recorded message is delivered. Plaintiff filed a civil rights action seeking to communicate political messages and conduct public opinion polling for clients through automated calls without using a live voice. A federal district court granted summary judgment in favor of Montana’s Attorney General. The Ninth Circuit held that Montana had a compelling state interest in regulating automated telephone calls, but the statute was not narrowly tailored to advance that compelling interest and therefore did not survive strict scrutiny and violated the First Amendment. (Victory Processing, LLC v. Fox (9th Cir., Sept. 10, 2019) 937 F.3d 1218.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/10/18-35163.pdf

Judgment Does Not Conform to Settlement Terms.

Two neighbors disputed their property line. They settled the case in 2016. They presented their oral settlement to the trial court, and the court entered judgment on the settlement. Ordinarily a stipulated judgment is not appealable, but defendants contended the judgment did not conform to the terms of their oral settlement. Reversing, the Court of Appeal stated: “We conclude that the judgment entered pursuant to [Code of Civil Procedure] section 664.6 erroneously fails to conform to the terms of the parties’ stipulated settlement agreement. We therefore reverse the judgment and direct the trial court to enter a new judgment setting forth all the material terms of the parties’ . . . 2016 settlement agreement, as reflected in the record.” (Machado v. Myers (Cal. App. 4th Dist., Div. 1, Sept. 10, 2019) 39 Cal.App.5th 779.)

https://www.courts.ca.gov/opinions/documents/D073824.DOC

An Easement Granted in General Terms Is “Perfectly Valid.”

This case involves a dispute between a landowner and a utility company. It is undisputed the utility company has an easement to use a strip of the land for utility purposes, but the landowner contends it has no right to traverse other portions of the property. The utility company has used the land for nearly 80 years. The trial court found the utility company had been granted a “floating easement” to access its electrical facilities on the land. The Court of Appeal affirmed, stating: “An easement granted in general terms, nonspecific as to its particular nature, extent or location, is . . . perfectly valid. It entitles the holder to choose a ‘reasonable’ location and to use such portion of the servient tenement as may be reasonably necessary for the purposes for which the easement was created.” (Southern California Edison Co. v. Severns (Cal. App. 2nd Dist., Div. 6, Sept. 10, 2019) 39 Cal.App.5th 815.)

https://www.courts.ca.gov/opinions/documents/B286354.DOC

Requesting Asylum in a Third Country.

July 16, 2019: The U.S. Department of Justice adopted a regulation (84 Fed. Reg. 33829) rendering ineligible asylum claims of persons who failed to apply for asylum in a third country before seeking asylum in the United States. 

July 24, 2019: A federal district court issued a nationwide injunction, enjoining enforcement of the new regulation.

August 16, 2019:  The Ninth Circuit denied the government’s request to stay enforcement of the injunction, noting the government did not make a “strong showing” that it would prevail on the merits.  But the Ninth Circuit narrowed the injunction to only within the Ninth Circuit while allowing the district court to consider whether additional facts would warrant a broader injunction.

September 9, 2019: The federal district court further developed the record and found a nationwide injunction was necessary to provide complete relief.

September 11, 2019: The U.S. Supreme Court, without stating one way or the other whether the government made a strong showing that it would prevail on the merits, stayed the nationwide injunction “pending disposition of the Government’s appeal in the . . . Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought.” (Barr v. East Bay Sanctuary Covenant (U.S., Sept. 11, 2019) 2019 U.S. LEXIS 4619.)

https://www.supremecourt.gov/opinions/18pdf/19a230_k53l.pdf

PAGA Actions.

This case concerns a Private Attorneys General Act (Lab. Code, § 2698 et seq.; PAGA) action seeking civil penalties under Labor Code § 558. An employee and her employer agreed to arbitrate all employment claims and forego class arbitration. The Court of Appeal concluded § 558’s civil penalty encompassed the amount for unpaid wages, and therefore could be ordered to arbitration. The California Supreme Court affirmed the Court of Appeal’s decision but on a different ground, holding: “What we conclude is that the civil penalties a plaintiff may seek under section 558 through the PAGA do not include the ‘amount sufficient to recover underpaid wages.’ Although section 558 authorizes the Labor Commissioner to recover such an amount, this amount––understood in context––is not a civil penalty that a private citizen has authority to collect through the PAGA.” (ZB, N.A. v. Superior Court (Cal., Sept. 12, 2019) 8 Cal.5th 175.)

https://www.courts.ca.gov/opinions/documents/S246711.DOCX

Wrong Standard Used in Awarding Attorney Fees.

A federal district court awarded attorney fees in a civil rights case. On appeal, plaintiff contended the court applied the wrong legal standard. The Ninth Circuit agreed, stating: “For purposes of establishing the lodestar figure in an attorney’s fees case, district courts must first determine a reasonable hourly rate, which is adduced by examining rates for comparable work performed by attorneys in the relevant community with similar skill, experience, and reputation. The district court failed to apply this standard to determine the prevailing hourly rate in the relevant community.” (Roberts v. City and County of Honolulu (9th Cir., Sept. 12, 2019) 2019 U.S. App. LEXIS 27491.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/12/16-16179.pdf

Are You My Grandmother?

A 13-year-old girl was drugged and raped by a 30-year-old church employee at a church event. The girl and her mother reported the incident to the girl’s grandmother, who was an officer and director of the church. The grandmother flew into a tirade, called the girl stupid, and told the girl the incident was her fault and that she let it happen. Based on the grandmother’s conduct, a jury awarded the girl $2 million against the church, which the trial court remitted to $900,000, for intentional infliction of emotional distress. The jury found that the grandmother was acting within the course and scope of her duties as an officer and director of the church when she yelled at the girl. On appeal, the church argued that the grandmother’s conduct was not extreme or outrageous. Affirming, the Court of Appeal stated: “Yelling at [a] 13-year-old girl who had been drugged and raped that she was stupid and she was at fault exceeds all possible bounds of decency.” The court also concluded that substantial evidence supported the jury’s finding that the grandmother was acting within the course and scope of her duties as an officer and director of the church when she yelled at the girl, including testimony that the grandmother was a co-founder of the church and was in charge of the church event where the rape occurred. (Crouch v. Trinity Christian Center of Santa Ana, Inc. (Cal. App. 4th Dist., Div. 3,  Sept. 12, 2019) 39 Cal.App.5th 995.)

https://www.courts.ca.gov/opinions/documents/G055602.PDF

Nuisance Per Se.

Defendants operate a drug treatment facility and house their patients in homes zoned for residential use. The city alleged that defendants were operating an unlicensed drug treatment center in an area zoned for residential use only, and sought injunctive relief to abate a nuisance. The trial court permanently enjoined defendants from operating their properties as residential components of an alcoholism and drug abuse treatment facility without obtaining a valid license from the state in compliance with Health and Safety Code § 11834.30. Affirming, the Court of Appeal found “the evidence amply supports the court’s conclusion.” (City of Dana Point v. New Method Wellness, Inc. (Cal. App. 4th Dist., Div. 3, Sept. 13,  2019) 39 Cal.App.5th 985.)

https://www.courts.ca.gov/opinions/documents/G056741.PDF

No Abuse of Discretion in Denying Motion to Dismiss Under Five-Year Rule.

Nearly 230 claims were brought against 25 defendants for fraudulent activities in investment projects involving $170,000,000 in losses. Six separate complex actions were coordinated for discovery purposes only, and not for trial. Meanwhile, criminal charges were brought against one of the defendants in federal court based on essentially the same facts alleged in the state court proceedings. That defendant moved for dismissal under Code of Civil Procedure § 583.310. The trial court denied the motion, finding that it was impractical for plaintiffs to bring the action to trial within the five-year period. Noting that the aim of the statute is not to have trials, but to bring cases to a conclusion, the Court of Appeal affirmed, finding no abuse of discretion in the denial of the motion. (In re Alpha Media Resort Investment Cases (Cal. App. 1st Dist., Div. 3, Sept. 16, 2019) 39 Cal.App.5th 1121.)

https://www.courts.ca.gov/opinions/documents/A150451.PDF

No Disability Pay for Attending Doctor Appointments.

A worker’s compensation claimant argued that he was entitled to temporary disability pay while he attended medical appointments and medical/legal evaluations after suffering a workplace injury. The Workers’ Compensation Appeals Board determined that the claimant is entitled to disability pay when attending medical/legal evaluations but not for attending medical appointments. The Court of Appeal affirmed, stating: “Significantly, ‘our system of workers’ compensation does not provide a makewhole remedy. The Workers’ Compensation Law is intended to award compensation for disability incurred in employment.’ ” (Skelton v. Workers’ Compensation Appeals Board (Cal. App. 6th Dist., Sept. 16, 2019) 39 Cal.App.5th 1098.)

https://www.courts.ca.gov/opinions/documents/H046249.PDF

No Premises Liability.

Plaintiff was injured at defendants’ home when she fell from a garage step. The trial court granted summary judgment for the homeowners. Affirming, the Court of Appeal stated: “[D]efendants had a duty to maintain the premises in a reasonably safe condition. . . . [I]n the present case, plaintiff does not establish a discernible feature of the garage step that would notify defendants of an unreasonable risk of harm or any prior incidents that would alert defendants to the existence of a dangerous condition. . . . Defendants were simply homeowners and did not take part in any aspect of the design or construction of the garage step area. Defendants never had any knowledge of the building code violations, which existed when they purchased the home in 1989, and never experienced any incidents with the garage steps until plaintiff’s fall in 2014.” (Jones v. Awad (Cal. App. 5th Dist., Sept. 16, 2019) 2019 Cal. App. LEXIS 882.)

https://www.courts.ca.gov/opinions/documents/F077359.PDF

The Act of State Doctrine.

The principal asset of a Canadian mining company is a gold-silver mine in Mexico. Plaintiffs filed a class action in federal court, alleging that the mining company sold shares in the company without disclosing the intricacies of a tax scheme that would result in significant tax liabilities for investors. A federal district court dismissed the case because plaintiffs’ claims under the Securities Exchange Act of 1934 would require a U.S. court to pass judgment on the validity of a ruling by a Mexican tax authority. Affirming, the Ninth Circuit stated: “The act of state doctrine limits judicial interference in foreign relations by precluding adjudication of the sovereign acts of other nations in United States courts. Because Plaintiffs’ claims under the Securities Exchange Act of 1934 would require a United States court to pass judgment on the validity of a 2012 ruling by . . . [Mexico’s] tax authority. . . , they are barred by the act of state doctrine.” (Royal Wulff Ventures LLC v. Primero Mining Corp. (9th Cir., Sept. 17, 2019) 2019 U.S. App. LEXIS 28080.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/17/17-56367.pdf

Insurance May Cover Some Wage/Hour Claims.

In a wage and hour case, employees contended they were not adequately reimbursed for expenses related to mileage driven, cell phone usage, and training. The employer owned 250 restaurants and submitted the action to its insurance company. The insurer largely denied coverage, stating that the alleged violations fell within the policy’s wage and hour exclusion. The employer sued its own insurer. The trial court sustained the insurer’s demurrer. Reversing, the Court of Appeal stated: “We agree the wage and hour exclusion must be interpreted more narrowly than was done by the trial court, and based on that we conclude some, but not all, of the disputed claims are potentially covered by the Policy.” (Southern California Pizza Co., LLC v. Certain Underwrites at Lloyd’s, London (Cal. App. 4th Dist., Div. 3, Sept. 20, 2019) 2019 Cal. App. LEXIS 900.)

https://www.courts.ca.gov/opinions/documents/G056243.PDF

Another On-campus Sexual Assault.

A college expelled John Doe for violating its sexual misconduct policy after he sexually assaulted Jane Doe. An external adjudicator found Jane was incapacitated within the meaning of the policy because she was intoxicated and unable to make an informed and rational decision to engage in sexual activity. The adjudicator found John was also intoxicated—so intoxicated he did not know Jane was incapacitated. Under the college’s policy, however, John’s intoxication did not diminish his responsibility to obtain Jane’s consent, and John violated the policy because he should have known Jane was incapacitated. John petitioned the superior court for a writ of administrative mandate, which the court denied. John appealed. Finding there was substantial evidence that John should have known that Jane was incapacitated, the Court of Appeal affirmed. (Doe v. Occidental College (Cal. App. 2nd Dist., Div. 7, Sept. 23, 2019) 2019 Cal. App. LEXIS 906.)

https://www.courts.ca.gov/opinions/documents/B284707.PDF

The BIG Question.

This case, concerning franchisees who in turn are franchisors to unit franchisees, dates back more than a decade. Employer versus independent contractor issues abound in it. While this case was pending, the California Supreme Court issued its opinion in Dynamex Operations West Inc. v. Superior Court (2018) 4 Cal.5th 903. Dynamex held that a hiring entity must overcome the ABC test by establishing three elements to disprove employment status: (A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. The Ninth Circuit certified the following question to the California Supreme Court: “Does Dynamex Operations West Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), apply retroactively?” (Vazquez v. Jan-Pro Franchising International, Inc. (9th Cir., Sept. 24, 2019) 2019 U.S. App. LEXIS 28814.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/24/17-16096%20web%20order.pdf

Common Law Tort Action for Failure to Hire.

Plaintiff had been helping his friend, the visitor clubhouse manager for a baseball team, prepare meals for 15 months when the job of assistant visitor clubhouse manager became available. Plaintiff, who is African American, applied for the job. Defendant never interviewed plaintiff, and defendant hired a Caucasian teenager who was still in high school and did not meet any of the job qualifications. Plaintiff sued, alleging a common law failure to hire claim pursuant to Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167. The trial court sustained defendant’s demurrer. Affirming, the Court of Appeal held that a Tameny claim requires the prior existence of an employment relationship between the parties upon which to predicate a tort duty of care, and “[b]ecause defendant did not owe plaintiff any duty, plaintiff cannot bring a failure to hire claim against defendant in a common law tort action. . . .” Instead, plaintiff needed to proceed under the Fair Employment and Housing Act (Gov. Code § 12900 et seq.). (Williams v. Sacramento River Cats Baseball Club, LLC (Cal. App. 3rd Dist., Sept. 24, 2019) 2019 Cal. App. LEXIS 916.)

https://www.courts.ca.gov/opinions/documents/C086487.PDF

“It’s tough to stay married. My wife kisses the dog on the lips, yet she won’t drink from my glass,” Rodney Dangerfield.

A wife filed a petition for nullity of a marriage, or, in the alternative, dissolution of marriage on based on fraud. Both husband and wife appeared in pro per. The two met online. He is from Jamaica. She went to Jamaica in 2015, and they married during her visit. She returned home and applied for a two-year conditional visa for him. The United States approved the visa, and he moved to the United States in 2016. Within a week of his arrival, he “‘was soliciting call girls, prostitution, and other women off of sites.’” In 2017, he was jailed for domestic violence. While he was incarcerated, the wife found his text messages explaining he was not leaving her until he had his papers, and that he loved his girlfriend from Jamaica. A month after he was released, he had sex with another woman in the wife’s home. Several months later, she asked him to move out. He did. The trial court granted the wife’s petition to nullify the marriage. The Court of Appeal noted that Family Code § 2210, subdivision (d) states: “‘A marriage is voidable and may be adjudged a nullity if [¶] . . . [¶] the consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, and with full knowledge of the facts constituting the fraud, freely cohabited with the other as his or her spouse.” Because the couple continued to live together even after she discovered his infidelities and using the marriage for immigration purposes, the Court of Appeal reversed. (In re Marriage of Goodwin-Mitchell and Mitchell (Cal. App. 1st Dist., Div. 3, Sept. 24, 2019) 2019 Cal. App. LEXIS 917.)

https://www.courts.ca.gov/opinions/documents/A154915.PDF

“The purpose of whistleblowing is to expose secret and wrongful acts by those in power in order to enable reform,” Glenn Greenwald.

Plaintiffs were fired after reporting a city’s practice of pressuring hearing examiners who reviewed parking fine appeals to change decisions. They sued the city for whistleblower retaliation under Labor Code § 1102.5, violation of the Bane Act (Civ. Code, § 52.1), violation of federal civil rights (42 U.S.C. § 1983), and violation of Government Code § 815.6, which imposes liability on a public entity for injury resulting from failure to discharge a mandatory duty. Plaintiffs, individually and “on behalf of the general public,” asked for penalties under the Private Attorneys General Act (Civ. Code, § 2698 et seq.; PAGA). They also asked for attorney fees. The jury awarded one plaintiff $238,531 and another $188,631 in damages. The trial court assessed a $20,000 penalty under PAGA and awarded plaintiffs $1,054,286.88 in attorney fees. Affirming, the Court of Appeal stated: “Here, the City argues that a significant benefit was not conferred on the public because all the action did was remedy retaliation for whistleblowing. However, the City ignores the trial court’s finding that the action also conferred a significant public benefit because the public is entitled to fair hearings with respect to parking citations.” (Hawkins v. City of Los Angeles (Cal. App. 2nd Dist., Div. 3, Sept. 25, 2019) 2019 Cal. App. LEXIS 924.)

https://www.courts.ca.gov/opinions/documents/B279719.PDF

Wages for a Live-In Domestic Worker.

Defendants paid plaintiff $3,000/month as a live-in domestic worker. She sued her former employers for unpaid overtime wages. To calculate her unpaid wages from 2010 through 2013, the trial court presumed the $3,000/month compensated plaintiff for a regular, non-overtime 45-hour week. It calculated her hourly rate to be $15.38 and found that defendants owed plaintiff $265,720.26 in unpaid wages. On appeal, defendants argued the court should have used California’s minimum wage of $8 an hour, so the amount owed would drop to $75,000. Reversing, the Court of Appeal stated: “Because personal attendants were exempt from overtime requirements before 2014, we conclude California law in effect at the time did not limit the number of hours a personal attendant’s salary could cover, except to require that it pay at least the minimum wage of $8 per hour for each hour worked.” (Liday v. Sim (Cal. App. 2nd Dist., Div. 3, Sept. 25, 2019) 2019 Cal. App. LEXIS 925.)

https://www.courts.ca.gov/opinions/documents/B283180.PDF

Not Everything Involved in a Court Action Is Protected Activity.

Defendants, a realty company and its attorneys, appealed the denial of their anti-SLAPP motion (Code Civ. Proc., § 425.16), arguing that all of plaintiffs’ claims arose out of the prosecution of an unlawful detainer action. Affirming the denial, the Court of Appeal stated: “We conclude the trial court properly denied the motion. The attorney defendants did not satisfy the first prong of the anti-SLAPP statute for the claim under Civil Code section 1950.5, subdivision (b)(1), because the allegation that they misused plaintiffs’ security deposit did not arise out of protected activity.” (Olivares v. Pineda (Cal. App. 1st Dist., Div. 3, Sept. 25, 2019) 2019 Cal. App. LEXIS 926.)

https://www.courts.ca.gov/opinions/documents/A154205.PDF

The Common Interest Privilege.

Plaintiff was fired from his position as principal of a Catholic school. Defendant headed an advisory board for the school. The advisory board made complaints about plaintiff to the diocese. After investigating, the diocese removed plaintiff from his position. Plaintiff sued defendant for defamation and intentional infliction of emotional distress. Defendant filed an anti-SLAPP motion pursuant to Code of Civil Procedure § 425.16. The trial court granted the motion in part and denied in part. Reversing, the Court of Appeal ordered the trial court to grant the motion in full, stating: “The common interest privilege applies to a communication made without malice to a person interested in the communication’s subject matter by another person also interested in the communication’s subject matter. (Civ. Code, § 47, subd. (c)(1).) ‘Ordinarily, the common interest of the members of a church in church matters is sufficient to give rise to a qualified privilege to communications between members on subjects relating to the church’s interest.’ (Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 796 (Brewer).)”  (Hicks v. Richard (Cal. App. 4th Dist., Div. 1, Sept. 17, 2019) 2019 Cal. App. LEXIS 877.)

https://www.courts.ca.gov/opinions/documents/D074274.PDF

Catholic Hospital Refused to Perform a Hysterectomy on a Transgender Man.

Plaintiff, a transgender man with gender dysphoria, was scheduled to have a hysterectomy at a Catholic hospital. When the Catholic hospital realized plaintiff was transgender, it told his doctor the procedure could not be performed there. The doctor was able to secure emergency surgical privileges and performed plaintiff’s hysterectomy at another hospital a few days later. Plaintiff sued the Catholic hospital for violation of the Unruh Civil Rights Act (Civ. Code, § 51.) The hospital argued: “Direct sterilization of either men or women, whether permanent or temporary, is not permitted in a Catholic health care institution. Procedures that induce sterility are permitted when their direct effect is the cure or alleviation of a present and serious pathology and a simpler treatment is not available.” The trial court sustained the hospital’s demurrer without leave to amend and dismissed the case. The Court of Appeal reversed, stating: “[U]pholding [plaintiff’s] claim does not compel [the hospital] to violate its religious principles if it can provide all persons with full and equal medical care at comparable facilities not subject to the same religious restrictions.” (Minton v. Dignity Health (Cal. App. 1st Dist., Div. 4, Sept. 17, 2019) 2019 Cal. App. LEXIS 883.)

https://www.courts.ca.gov/opinions/documents/A153662.PDF

The State Secrets Privilege.

Petitioner is currently a prisoner in the Guantanamo Bay Naval Base in Cuba seeking to depose two individuals about torture he claims to have suffered. A federal district court quashed subpoenas after the government intervened and asserted the state secrets privilege. The Ninth Circuit explained: “The Supreme Court has long recognized that in exceptional circumstances, courts must act in the interest of the country’s national security to prevent the disclosure of state secrets by excluding privileged evidence from the case and, in some instances, dismissing the case entirely. See Totten v. United States, 92 U.S. 105 (1875); see also United States v. Reynolds, 345 U.S. 1 (1953).” The appeals court reversed and remanded for further proceedings, stating: “We conclude, however, that the district court erred in quashing the subpoenas in toto rather than attempting to disentangle nonprivileged from privileged information.” (Husayn v. United States (9th Cir., Sept. 18, 2019) 2019 U.S. App. LEXIS 28004.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/18/18-35218.pdf

No Due Process Violation.

In 1990, at the age of 10, petitioner entered the United States without inspection. In 1996, immigration officials served the then-16-year-old with a notice of deportation proceedings by certified mail. He signed the receipt and mailed it back, but did not appear for the proceedings. He was ordered deported in absentia. He now argues he did not receive proper notice because no adult was served with the order to appear. The Ninth Circuit denied his petition for review of a decision by the Board of Immigration Appeals, stating: “We hold that the notice given here comported with both regulatory requirements and due process.” (Pleitez v. Barr (9th Cir., Sept. 18, 2019) 2019 U.S. App. LEXIS 28358.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/18/15-72876.pdf

Right to Bodily Privacy.

Internal Revenue Service (IRS) agents had a warrant to search plaintiff’s home. At one point, plaintiff wanted to use the bathroom. A female officer accompanied her and stood in the room while plaintiff relieved herself. Plaintiff sued the IRS and the agent, alleging the agent violated her Fourth Amendment right to bodily privacy. The agent moved for summary judgment, claiming she was entitled to qualified immunity. A federal district court denied the motion. Affirming, the Ninth Circuit Court of Appeals stated: “In sum, a reasonable officer in Agent Noll’s position would have known that such a significant intrusion into bodily privacy, in the absence of legitimate government justification, is unlawful.” (Ioane v. Hodges (9th Cir., Sept. 19, 2019) 2019 U.S. App. LEXIS 28475.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/19/16-16089.pdf

Misbehaving Doctor.

A doctor repeatedly misbehaved by verbally abusing patients and staff. At one point, he was placed on probation by a hospital where he held privileges, but his behavior did not improve. Later, he signed a written contract with the hospital entitled “Behavioral Agreement” as a condition to retaining his medical privileges at that hospital. After that, there was an incident when the doctor was documenting at a cart, and the cart needed to be moved to maneuver a bed into the room of a patient in distress. He refused to move, preventing staff from taking care of the patient. One of the nurses reported the incident to the hospital’s executive committee, and the doctor requested that the nurse never be assigned to his cases.  The executive committee concluded the incident amounted to a violation of the Behavioral Agreement, and the hospital terminated the doctor’s staff privileges and membership. The doctor filed a petition for administrative mandate, and the trial court denied his petition. Reversing, the Court of Appeal found the hospital failed to give the doctor a hearing as required by Business and Professions Code § 809.1. The appellate court also found the hospital terminated the doctor’s privileges and membership for a “medical disciplinary cause or reason,” which triggered the requirement for a written report pursuant to § 805. (Alaama v. Presbyterian Intercommunity Hospital, Inc. (Cal. App. 2nd Dist., Div. 7, Sept. 18, 2019) 2019 Cal. App. LEXIS 894.)

https://www.courts.ca.gov/opinions/documents/B288360.PDF

Compliance with Federal Regulations is Not “Acting Under” a Federal Officer Sufficient for Removal.

After a helicopter crashed and killed a person taking a helicopter tour of the Grand Canyon, plaintiff sued alleging defective design of the aircraft. Defendant manufacturer removed the case to federal court, arguing it had been “acting under” a federal officer when it designed the helicopter. 28 U.S.C. § 1442(a)(1) permits removal of an action from state to federal court against “any officer (or any person acting under that officer) of the United States or of any agency thereof . . . .” A federal district court remanded the matter back to state court. Affirming, the Ninth Circuit stated: “[Defendant] inspected and certified its aircraft pursuant to FAA regulations and federal law and could not make any structural or design changes without the consent of the FAA. . . . We join the Seventh Circuit in concluding that an aircraft manufacturer does not act under a federal officer when it exercises designated authority to certify compliance with governing federal regulations.” (Riggs v. Airbus Helicopters, Inc., 9th Cir., Sept. 20, 2019) 2019 U.S. App. LEXIS 28503.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/20/18-16396%20(2).pdf

Ordinary Incident Exception to Exclusion in Insurance Policy.

Plaintiffs had been renting their home to tenants for eight years when the front porch collapsed, causing injury to a tenant. When the tenant sued, plaintiffs sought defense and indemnification from their homeowner’s insurance carrier. The carrier denied the claim because the policy excluded coverage for injuries arising out of an insured’s business pursuits or home rental. Plaintiffs sued their carrier for bad faith denial of their claim. The trial court granted summary judgment in favor of defendant. On appeal, plaintiffs argued that even if the exclusion applied to their rental activity, there was coverage under the “ordinary incident” exception to the exclusion: “[T]his exclusion does not apply [¶] . . . to activities which are ordinarily incident to non-business pursuits.” Plaintiffs argued that, in their capacity as homeowners, they would have maintained the front porch whether they were living at the property or renting it to others. Rejecting plaintiffs’ argument and affirming the grant of summary judgment, the Court of Appeal stated: “Any maintenance activities undertaken by appellants with respect to the Property were directly related to their rental of the premises and would have contributed to, and furthered the interests of, their rental business, [citation], or enhanced the value of the rental property. Moreover, as landlords required to maintain the leased premises in a safe and habitable condition, repairs and upkeep of the front porch were a ‘necessary incident of the business of renting property.’ ” (Terrell v. State Farm General Insurance Company (Cal. App. 1st Dist., Div. 1, Sept. 26, 2019) 2019 Cal. App. LEXIS 931.)

https://www.courts.ca.gov/opinions/documents/A152541.PDF

$45,000,000 Damages Award in Wrongful Death Action Held Not Excessive.

The single mother of four children was killed by a drunk driver. A jury awarded a total of $45,000,000 in damages ($11,250,000 in noneconomic damages for each of the four children, comprised of $5,625,000 for past damages and $5,625,000 for future damages). On appeal, defendants argued the damages awards shocked the conscience when compared to other verdicts, plaintiffs’ counsel preconditioned the jury to award large damages, plaintiffs’ counsel introduced evidence about the defendant driver’s prior DUI, and plaintiffs’ counsel improperly urged the jury to punish the drunk driver. Rejecting all four of defendants’ arguments, the Court of Appeal affirmed the award as well as the trial court’s denial of a new trial motion.  The Court of Appeal held that $11,250,000 for each of the deceased’s children did not shock the conscience. The Court of Appeal noted: “[T]wo of the children were still in school when their mother died. Their deteriorating academic social lives reflected the absence of her guidance and motivating presence. As for the oldest child, she made the decision to be both mother and sister to her siblings, thereby forever altering her life trajectory.Further, the undisputed evidence was that each child was individually close to the mother and that they were a tight-knit family unit.” (Fernandez v. Jimenez (Cal. App. 2nd Dist., Div. 3, Sept. 26, 2019) 2019 Cal. App. LEXIS 927.)

https://www.courts.ca.gov/opinions/documents/B281518.DOCX

Meal Breaks.

In a wage/hour action that went to trial, the Court of Appeal held: “(1) at-will, on-call, hourly, nonexempt employees who are paid for on-duty meal periods are also entitled to premium wages if the employer does not have a written agreement that includes an on-duty meal period revocation clause (Lab. Code, § 226.7); (2) unpaid premium wages for meal break violations accrue prejudgment interest at seven percent; (3) unpaid premium wages for meal break violations do not entitle employees to additional remedies pursuant to sections 203 and 226 if their pay or pay statements during the course of the violations include the wages earned for on-duty meal breaks, but not the unpaid premium wages; (4) without section 226 penalties, attorney fees pursuant to section 226, subdivision (e) may not be awarded; and (5) the trial court prejudicially erred in denying certification of a rest break class.” (Naranjo v. Spectrum Security Services, Inc. (Cal. App. 2nd Dist., Div. 4, Sept. 26, 2019) 2019 Cal. App. LEXIS 928.)

https://www.courts.ca.gov/opinions/documents/B256232.PDF

Plaintiff Who Prevailed in Wrongful Termination Action Wants Reinstatement.

A jury found that a university retaliated against a professor in denying her tenure and terminating her employment. The jury awarded the professor $378,461 in damages, including $15,600 in future noneconomic damages and $362,861 in past and future economic damages. The professor thereafter sought reinstatement, which the university opposed because there was no available position. The trial court entered judgment in favor of the professor and stated in the judgment that the university had denied the professor’s request for reinstatement. Further, the court attached to the judgment its order denying reinstatement conditional on the university’s periodically reporting to the court concerning available positions. Finding no error, the Court of Appeal affirmed. (Gupta v. Trustees of the California State University (Cal. App. 1st Dist., Div. 3, Sept. 26, 2019) 2019 Cal. App. LEXIS 929.)

https://www.courts.ca.gov/opinions/documents/A151763.PDF

Father Partly Responsible for Adult Son’s Driving Truck While Suffering From a Seizure Disorder.

A 26-year-old driver suffered a seizure while driving a truck and struck a car, killing its two occupants. The truck was jointly owned by the driver and his father, and was registered in both names. When the truck was purchased, the father cosigned the loan; the father paid for insurance and registration. However, the 26-year-old driver had sole possession of the keys and was the truck’s only driver. The father was aware that his son suffered from grand mal seizures. Plaintiffs are the survivors of the two persons who were killed. The jury found that the father knew or should have known that his son was incompetent or unfit to drive, and that permitting the son to drive was a substantial factor in causing the deaths. The jury allocated 90 percent fault to the son and 10 percent to the father. The trial court entered a judgment in plaintiffs’ favor against the father for $388,400. On appeal, the father contended the trial court erred by denying his requests to supplement CACI No. 724 on negligent entrustment. The father argued that CACI No. 724 did not adequately define “permitted.” The Court of Appeal found that the instruction was adequate and no clarification was needed.  The reviewing court also found that substantial evidence supported the verdict and affirmed the judgment. (Ghezavat v. Harris (Cal. App. 1st Dist., Div. 5, Sept. 27, 2019) 2019 Cal. App. LEXIS 939.) 

https://www.courts.ca.gov/opinions/documents/A154405.PDF

In an Anti-SLAPP Motion, Defendant’s Evidence Considered in Determining Whether Plaintiff Demonstrated a Probability of Prevailing.

Plaintiff is a labor union that represents skilled crafts employees at two of defendant’s university campuses. In 2017, it was campaigning to unionize the skilled crafts employees at a third campus. During the campaign, the third university distributed a flyer to its skilled crafts employees, which stated in part: “The Skilled Crafts groups at both UCLA and UCSD had been in extensive contract negotiations, which had the effect of freezing salaries for several years. As a result, the initial increase provided by the new contracts had to account for multiple missed increases. This is an important distinction from the current status at UC Davis, where employees continue to receive annual merit increases based on performance. [¶] UC Davis is committed to paying its Skilled Crafts employees market competitive wages. Additionally, UC Davis Skilled Crafts employees enjoy an average annual cost of $384 for comprehensive health benefits as compared to the average American workers who will pay more than $5,200 annually for less generous health benefits.” The labor union thereafter filed the action for violation of Government Code section 16645.6, which prohibits a public employer from using state funds to “assist, promote, or deter union organizing.” Defendant filed an anti-SLAPP motion (Code Civ. Proc., § 425.16). The trial court denied the motion, and defendants appealed. The Court of Appeal noted that the parties agreed the lawsuit arose out of protected activity, but disagreed as to the second prong of the anti-SLAPP statute. Defendant contended the labor union did not demonstrate a probability of prevailing on the merits. Defendant submitted the declaration of the university’s Executive Director of Employee and Labor Relations, explaining the reason for the flyer was to supply its employees with factual information so they could make informed decisions about unionization. The appellate court stated it saw no reason why that declaration from the university could not be considered in assessing the labor union’s probability of prevailing on its claim. The appellate court found no error and affirmed the trial court’s denial of the anti-SLAPP motion. (Teamsters Local 1010 v. Regents of the University of California (Cal. App. 1st Dist., Div. 5, Sept. 30, 2019) 2019 Cal. App. LEXIS 951.)

https://www.courts.ca.gov/opinions/documents/A155188.PDF

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