Litigation Update: October 2021

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

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District, Division Three
  • Managing Editor, Julia C. Shear Kushner
  • Editors, Dean Bochner, Reuben Ginsburg, Jessica Riggin, David Williams, Ryan H. Wu, and Greg Wolff
Wheelchair Accessibility Requirements for Sports Stadiums.

The Americans with Disabilities Act (42 U.S.C. § 12182(a); ADA) prohibits anything less than the full and equal enjoyment of places of public accommodation by people with disabilities. The accompanying Department of Justice guidelines (§ 4.33.3) state: “Wheelchair seating locations must provide lines of sight comparable to those provided to other spectators. In stadiums where spectators can be expected to stand during the show or event (for example, football, baseball, basketball games, or rock concerts), all or substantially all of the wheelchair seating locations must provide a line of sight over standing spectators. A comparable line of sight, as illustrated in the figure below, allows a person using a wheelchair to see the playing surface between the heads and over the shoulders of the persons standing in the row immediately in front and over the heads of the persons standing two rows in front.” Plaintiffs, four wheelchair-using baseball fans, sued defendants for violating the ADA line of sight requirements. The district court found the stadium line of sight in the stadium was adequate and held for defendants. Vacating and remanding, the Ninth Circuit noted the guidelines have two requirements, but the lower court only dealt with the first. (Landis v. Washington State Major League Baseball Stadium Public Facilities District (9th Cir., Sept. 1, 2021) 11 F.4th 1101.)

New Landlord Apparently Didn’t Like Rent Control.

After an apartment building changed hands, the new owner made life miserable for tenants who had lived in their rent-controlled San Francisco apartment since 1994. A jury found the new landlords liable for two separate violations of the city’s rent ordinance and for wrongful eviction and harassment. The jury awarded plaintiffs $3,528,000 after trebling, which the trial court later reduced to $2.7 million. Affirming the award, the Court of Appeal stated: “The Damages Awarded Were Not Miscalculated and Are Not Confiscatory.” (Duncan v. Kihagi (Cal. App. 1st Dist., Div. 1, Sept. 1, 2021) 68 Cal.App.5th 519.)

Seizing and Destroying Personal Belongings of Homeless Persons.

As of 2019, there were 35,000 homeless individuals in Los Angeles. Part of the city’s response to the crisis was to enact Municipal Code § 56.11, which strictly limits the storage of personal property in public areas. A group of homeless individuals who had their personal property destroyed by the city, along with two organizations that advocate for the interests of homeless individuals, brought this action. The district court judge issued a preliminary injunction prohibiting the city from discarding homeless individuals’ “Bulky Items” stored in public areas. The city appealed. Affirming the order for a preliminary injunction, the Ninth Circuit found that plaintiffs were likely to prevail on the merits and that on its face the municipal code provision violated the Fourth Amendment’s protection against unreasonable seizures. (Garcia v. City of Los Angeles (9th Cir., Sept. 2, 2021) 11 F.4th 1113.)

“Let them eat cake,” Marie Antoinette (apocryphal).

Defendant was dissatisfied with the way a baker decorated a specially-ordered birthday cake. Thereafter, defendant discussed his grievance to his 1.5 million social media followers and on his podcast. The baker began receiving death threats and negative reviews, and demanded defendant correct his statements. Defendant refused, and the baker filed suit alleging libel, slander, and violation of the Unfair Competition Law. Defendant filed a special motion to strike pursuant to Code of Civil Procedure § 425.16, which the trial court denied. Affirming the order on appeal, the Court of Appeal stated: “Yang’s statements relate only to one transaction with Big Sugar. He published them on his social media accounts to air his dissatisfaction with a particular cake. His statements were not part of a larger discussion.” (Woodhill Ventures, LLC v. Yang (Cal. App. 2nd Dist., Div. 8, Sept. 3, 2021) 68 Cal.App.5th 624.)

Public Intoxication Arrest Under a City Ordinance.

Sheriff’s deputies arrested plaintiffs for public intoxication under a city ordinance. Plaintiffs spent a night and day in jail but were never charged. Plaintiffs sued the sheriff’s department and a deputy. A jury found for defendants. Reversing, the Court of Appeal stated: “Some 58 years ago, our Supreme Court held California had ‘adopted a general scheme for the regulation of the criminal aspects of being intoxicated in a public place. (In re Koehne (1963) 59 Cal.2d 646, 648 (Koehne).’ ” The appeals court noted that the general scheme is encompassed in Penal Code § 647, subdivision (f), adding that whenever the legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned. (Carcamo v. Los Angeles City Sheriff’s Department (Cal. App. 2nd Dist., Div. 3, Sept. 3, 2021) 68 Cal.App.5th 608.)

Not Following Suggestions Does Not Amount to Statutory Violation.

A high school student sued his school for money damages after he was assaulted and seriously injured by another student at a school football game. Plaintiff, who has ADHD, sued under Title II of the Americans with Disabilities Act (42 U.S.C. § 12131 et seq.; ADA), and § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794). In court, he argued, not that the school violated any statute or regulation, but that it violated Dear Colleague letters issued by the Department of Education, which made suggestions for preventing harassment of disabled students amounting to disability discrimination. The district court granted summary judgment in the school’s favor. Affirming, the Ninth Circuit stated: “The Dear Colleague Letters don’t (nor does it seem they were intended to) adjust the legal framework governing private party lawsuits brought under the ADA or Rehabilitation Act.” (Csutoras v. Paradise High School (9th Cir., Sept. 7, 2021)12 F.4th 960.)

Misrepresentations of Material Fact in Conservator’s Final Account.

A conservatee filed a motion asking the probate court to exercise its inherent equitable authority to set aside an order approving his former conservator’s final account due to misrepresentations of material fact in the account. The probate court denied the motion after finding: (1) that the conservatee failed to show he was unaware of the defects in the account at the time it was approved; or (2) failed to act with reasonable diligence to set aside the order in light of information that he should have known. Reversing, the Court of Appeal stated: “[T]o set aside an order approving the conservator’s account on the ground of extrinsic fraud, a conservatee is not required to establish that the misrepresentations of material fact in the account could not have been discovered prior to entry of the order approving the account.” (Hudson v. Foster (Cal. App. 2nd Dist., Div. 5, Sept. 7, 2021) 68 Cal.App.5th 640.)

Supreme Court Found Jury Instruction on Work Injuries Needs Revision.

An electrical parts specialist triggered an arc flash from a circuit he did not realize was “live” with flowing electricity. He sustained third degree burns to over one third of the surface area of his body. The contractor for whom he’d been working had removed the protective cover on that live circuit while work was underway. A jury concluded that the contractor acted negligently and was liable for the injuries, and the Court of Appeal affirmed. Reversing, the California Supreme Court held the hirer owed no tort duty to plaintiff. The high court also stated: “We also conclude that the pattern jury instruction used in this case — CACI No. 1009B — does not adequately capture the elements of a Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202,] claim. . . . We leave it to the Judicial Council to determine how to convey the distinct negligence and causation elements of the cause of action, once it has revised the duty element in accordance with this opinion.” (Sandoval v. Qualcomm Inc. (Cal., Sept. 9, 2021) 12 Cal.5th 256.)

Courts Possess the Inherent Authority to Ensure PAGA Claims Will Be Manageable at Trial.

Plaintiff moved for summary adjudication of his wage and hour claim under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). The trial court invited plaintiff to submit a trial plan showing that his PAGA claim would be manageable at trial. In response, plaintiff contended the court lacked authority to require manageability, and declined to address how the parties could litigate defendant employer’s affirmative defense that individualized proof was required. The trial court concluded the PAGA claim could not be managed at trial, denied the motion, and struck the PAGA claim. Plaintiff appealed. Affirming, the Court of Appeal held that courts possess the inherent authority to ensure that PAGA claims will be manageable at trial. (Wesson v. Staples the Office Superstore, LLC (Cal. App. 2nd Dist., Div. 4, Sept. 9, 2021) 68 Cal.App.5th 746.)

Summary Judgment Reversed Because Plaintiff Produced Evidence the University Wanted “Someone Younger.”

Plaintiff sued a university for age and gender discrimination under Government Code § 12940 et seq. She produced evidence that one of the school administrators had expressed disinterest in a different applicant, applying for a different job, because the university wanted “someone younger” for that other job. The trial court granted the university’s motion for summary judgment after excluding plaintiff’s evidence. Reversing, the Court of Appeal held that the excluded comment was relevant because “one can infer” that the administrator who made that comment “could influence . . . hiring and promotion” in other contexts, such as the decision not to promote plaintiff. The decision to exclude the remark was therefore erroneous under any standard of review. (Jorgensen v. Loyola Marymount University (Cal. App. 2nd Dist., Div. 8, Sept. 10, 2021) 68 Cal.App.5th 882.)

Summary Judgment Reversed Over Joint Employer/Independent Contractor Issue.

Shell owned and operated gas stations through contracts with separate companies called MSO operators. One of the MSO operators employed plaintiff as a gas station cashier and manager. Plaintiff sued the MSO operator and Shell, alleging violations of the Labor Code and arguing that Shell was his joint employer, based upon Shell’s strict control over the operations of its gas stations. Shell moved for summary judgment, arguing that it was not plaintiff’s employer. The trial court concluded it was bound by two prior decisions and granted the motion. (See Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289; Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111.) Reversing, the Court of Appeal stated: “The facts presented by plaintiff in this case, particularly with respect to the degree of Shell’s control over the MSO operators and gas station employees like plaintiff, differ meaningfully from the facts set forth in the two prior opinions. In addition to these factual distinctions, we also disagree with the analysis of our sister courts on the application of the relevant tests for joint employer status to Shell’s operation.” Absent “direct” control over the employee, Curry and Henderson found no employer/employee relationship. But the Court of Appeal in this case held that, if a person or company possesses “enough control over [an] intermediary entity to indirectly dictate the wages, hours, or working conditions of the employee, that is a sufficient showing of joint employment.” (Medina v. Equilon Enterprises, LLC (Cal. App. 4th Dist., Div. 3, Sept. 10, 2021) 68 Cal.App.5th 868.)

The Attorney-Client Privilege When Attorney Wears Two Hats.

A grand jury issued subpoenas for a company and a law firm to produce documents as part of a criminal investigation targeting the company’s owner, who was the law firm’s client. Both the company and the law firm produced some documents to comply with the subpoenas, but withheld others. The district court ruled for the government with regard to some of the withheld documents, explaining those documents were either not protected by any privilege or else were discoverable under the crime-fraud exception. The government filed motions to hold the company and law firm in contempt, both of which the trial court granted. Analyzing the situation, the Ninth Circuit discussed the “primary purpose” test and the “because of” test. In the former, courts look at whether the primary purpose of the communication is to give or receive legal advice, as opposed to business or tax advice, and that the natural implication of this inquiry is that a dual-purpose communication can only have a single “primary” purpose. The “because of” test instead considers the totality of the circumstances, and “when it can fairly be said that the document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of that litigation,” it is protected. Affirming the contempt orders, the Ninth Circuit held that “the primary purpose test,” rather than the “because of” test, “governs in assessing attorney-client privilege for dual-purpose communication.” However, the court expressly left open the question of whether it should adopt “a primary purpose” test as distinguished from“the primary purpose” test should apply. (In re Grand Jury (9th Cir., Sept. 13, 2021) 2021 WL 4143102.)

What Is a Contested Issue on the Merits?

A magistrate authorized a search warrant. Later, a motion to quash the search warrant was assigned to the same judge. Petitioner filed a peremptory challenge pursuant to Code of Civil Procedure § 170.6. The judge concluded that he had previously decided a “contested fact issue[] relating to the merits” when issuing the search warrant, and therefore denied the peremptory challenge as untimely. Petitioner then sought a writ of mandate in the Court of Appeal. Issuing the writ of mandate and directing the lower court to accept the peremptory challenge, the appeals court held that a magistrate’s issuance of a search warrant is not a determination on a contested fact issue relating to the merits within the meaning of § 170.6, so the challenge was timely. (Los Angeles County Metropolitan Transportation Authority v. Superior Court (Cal. App. 2nd Dist., Div. 5, Sept. 13, 2021) 68 Cal.App.5th 920.)

The Public Employees Relations Board Had Exclusive Jurisdiction to Determine Teacher’s Unfair Practice Charge.

A teacher who formerly worked for a school district learned that her personnel filed included derogatory statements about her. When the district refused to let her access the file, the teacher sought the assistance of her union and the state and local teachers’ associations. Such assistance was not forthcoming, so she initiated proceedings before the Public Employees Relations Board, claiming the state and local associations breached their duties to her in violation of the Educational Employment Relations Act (Gov. Code, § 3540 et seq.). The board decided not to issue a complaint, and the teacher filed the instant action against the associations. The trial court sustained the demurrers of the associations and dismissed the action. Affirming, the Court of Appeal held that the board had exclusive jurisdiction to determine the teacher’s unfair practice charge. (Curcio v. Fontana Teachers Association CTA/NEA (Cal. App. 4th Dist., Div. 2, Sept. 14, 2021) 68 Cal.App.5th 924.)

Constitutionally Protected Activity Excluded from Stalking Statute.

After a business deal went sour, defendants sent hundreds of emails to plaintiff and his employees, hired protestors to picket and distribute flyers near plaintiff’s residence and business, and hired vans emblazoned with their message that plaintiff committed “despicable crimes,” laundered money, and had ties to Hezbollah. A jury found defendants committed the tort of stalking under Civil Code § 1708.7, and awarded $100,000 in compensatory and $1,000,000 in punitive damages. Reversing, the Ninth Circuit held “[defendant’s] speech and speech-related conduct was protected under the First Amendment and was therefore excluded from the California stalking statute as ‘constitutionally protected activity’ . . . .” (Thunder Studios, Inc. v. Kazal (9th Cir., Sept. 15, 2021) 2021 WL 4187850.)

Labor Code § 432.6, Which Bans Mandatory Arbitration, Is Not Preempted by the Federal Arbitration Act.

California enacted Labor Code § 432.6 to ensure: (1) that individuals are not retaliated against for refusing to waive rights and procedures established in the Fair Employment and Housing Act or the Labor Code;  and (2) that any contract relating to those rights and procedures be entered into as a matter of voluntary consent and not coercion. The district court enjoined its enforcement, finding that § 432.6 was preempted by the Federal Arbitration Act (9 U.S.C. § 1; FAA) because it placed agreements to arbitrate on unequal footing with other contracts, and also stood as an obstacle to the purposes and objections of the FAA. Reversing in part, the Ninth Circuit held that § 432.6 “does not make invalid or unenforceable any agreement to arbitrate.” It therefore does not directly conflict with the FAA, and does not “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” The appeals court further stated: “Because the district court erred in concluding that § 432.6(a)–(c) were preempted by the FAA it ‘necessarily abuse[d] its discretion’ in granting Appellees a preliminary injunction.” (Chamber of Commerce of United States v. Bonta (9th Cir., Sept. 15, 2021) 2021 WL 4187860.)

Inclusion of Acceptance Provision in Code of Civil Procedure § 998 Offer.

Plaintiff sued defendant for sexual assault. During the litigation, she sent multiple letters offering to settle for $999,000. The letters stated that her offers were made pursuant to Code of Civil Procedure § 998, but said nothing about how the offers were to be accepted. At trial, plaintiff was awarded $3,875,000. Defendant argued in post-trial motions that plaintiff was not entitled to recover expert witness fees because her § 998 offers failed to include an acceptance provision, making them statutorily invalid. The trial court concluded that plaintiff’s offers were valid and awarded her expert witness fees. Reversing, the Court of Appeal explained: “There were no acceptance provisions in [plaintiff’s] letters and, as a result, we must reverse the parts of the trial court’s order that were predicated on [defendant’s] rejection of a valid section 998 offer.” (Finlan v. Chase (Cal. App. 4th Dist., Div. 1, Sept. 15, 2021) 68 Cal.App.5th 934.)

No Treble Damages Against Public Entity.

An elementary school student sued a school district, alleging one of its janitors sexually assaulted him on campus. According to the complaint, the janitor lured the first grader and other school children into empty classrooms with sweets to engage in sexual behavior. The issue on appeal was whether Government Code § 818, which shields public agencies from punitive damages, is a bar to recovering “up to treble damages” for sexual assault against a child or its cover up under Code of Civil Procedure § 340.1. The trial court granted the school district’s motion to strike plaintiff’s prayer for treble damages, and plaintiff petitioned the Court of Appeal for a writ of mandate. Denying the writ, the appeals court stated: “While punishing cover ups of childhood sexual assault and deterring future cover ups ‘is a worthy public policy objective, it is not one for which the state has waived sovereign immunity under the Tort Claims Act.’ ” (X.M. v. Superior Court of San Bernardino County (Cal. App. 4th Dist., Div. 2, Sept. 16, 2021) 68 Cal.App.5th 1014.)

Plaintiff Exhausted Her Administrative Remedy When the Name She Used for Employer Was Close to the Employer’s Real Name.

Plaintiff filed a complaint with the Department of Fair Employment and Housing (DFEH). The caption of the complaint named “Hooman Enterprises, Inc.” as the respondent, and in the first sentence, plaintiff alleged she “was employed by Defendant Hooman Enterprises Inc. DBA Hooman Chevrolet (Employer)” in Culver City. Plaintiff also named her supervisors, including “owner Hooman Nissani.” DFEH issued a right to sue letter, and plaintiff sued for wrongful termination. A jury awarded her $245,892. On appeal, the employer challenged the trial court’s denial of its motion for judgment notwithstanding the verdict, contending plaintiff did not exhaust her administrative remedies because her DFEH complaint did not contain her employer’s correct business name, which was NBA Automotive, Inc. dba Hooman Chevrolet of Culver City. Affirming, the Court of Appeal stated: “Because [plaintiff’s] administrative complaint sufficiently identified her employer, she exhausted her administrative remedies within the statutory limitations period.” (Guzman v. NBA Automotive, Inc. (Cal. App. 2nd Dist., Div. 7, Sept. 17, 2021) 68 Cal.App.5th 1109.)


The trial court entered summary judgment for an obligor on a note against the note holder. Affirming, the Court of Appeal explained: “[T]he moving papers demonstrated that when the required principal reductions through December 31, 2003 are accounted for, every interest payment after December 31, 2003 violated California usury limits, with the effective interest rate on the combined notes ranging from 11.97 percent in January 2004, to 141 percent in August 2015, to over 500 percent just before the 2001 note was fully paid. And when the payments are applied to reduce principal in accordance with California usury law, the result is that the 2000 note was fully paid off by May 2011 and the 2001 note fully paid off by January 2017.” (Korchemny v. Piterman (Cal. App. 1st Dist., Div. 2, Sept. 17, 2021) 68 Cal.App.5th 1032.)

County Placed One Item on Public Agenda, but Approved a Different Project.

Placer County approved a project to develop a resort on about 94 acres near Lake Tahoe. The Ralph M. Brown Act (Gov. Code, § 54950 et seq.) provides that if a county distributes to its board of supervisors any writing pertinent to an upcoming board meeting fewer than 72 hours before that meeting, the county must make that writing “available for public inspection” at a county office “at the time the writing is distributed” to the board. Finding the county violated the statute, the Court of Appeal explained: “To satisfy section 54957.5’s requirements, must the writing simply be placed in a county office that allows for public inspection of documents ‘at the time the writing is distributed’ to the board, or must the writing be placed in this office and actually available for public inspection ‘at the time’ of distribution? Considering the statute’s plain language and purpose, we find the latter is true. In most instances, the distinction between the two interpretations is irrelevant, as a writing is generally available for public inspection at the moment it is placed in a location allowing for public inspection. But that is not true when, as in this case, the county places the writing in a county office at a time the office is closed to the public — for example, on a weekend. In that event, the writing is not actually available for public inspection until the office reopens to the public, and so is not available at the time required under section 54957.5.” (Sierra Watch v. Placer County (Cal. App. 3rd Dist., Sept. 21, 2021) 69 Cal.App.5th 1.)

Summary Judgment Reversed in Baby Powder Case.

Before his death, decedent sued Johnson & Johnson (J&J) for damages under strict product liability, negligence, and fraud theories, alleging that exposure to asbestos in J&J’s Baby Powder, a product he used regularly for some 60 years, was a substantial contributing cause of his mesothelioma. Decedent’s wife substituted in as the sole plaintiff after his death and sought recovery for loss of consortium. The trial court granted summary judgment for J&J based on J&J’s expert declaration stating the baby powder contained no asbestos. Plaintiff had filed declarations from five experts who contradicted J&J’s expert on this point. Reversing, the Court of Appeal stated: “Both camps of expert opinion extensively analyze historical records going back many decades, including government reports, published articles, and internal J&J memoranda, and arrive at opposite conclusions.” “Which of these competing views to accept must be decided at trial.” (Strobel v. Johnson & Johnson (Cal. App. 1st Dist., Div. 4, Sept. 21, 2021) 69 Cal.App.5th 34.)

Private Searches, Not by the Government, and the Fourth Amendment.

Google, as required by federal law, reported to the National Center for Missing and Exploited Children (NCMEC) that a man, the criminal defendant here, had uploaded four images of apparent child pornography to his email account as email attachments. No one at Google had opened or viewed the email attachments; the report was based on an automated assessment that the images the man uploaded were the same as images other Google employees had viewed earlier and classified as child pornography. Someone at NCMEC then, also without opening or viewing the email attachments, sent them to the San Diego Internet Crimes Against Children Task Force, where an officer ultimately viewed the email attachments without a warrant. The question for the court was whether the government’s warrantless search of the man’s email attachments was justified by the private search exception to the Fourth Amendment. The district court denied defendant’s motion to suppress the evidence. Reversing and vacating the conviction, the Ninth Circuit concluded that the officer violated the defendant’s Fourth Amendment right to be free from unreasonable searches when the officer examined the defendant’s email attachments without a warrant. (United States v. Wilson (9th Cir., Sept. 21, 2021) 2021 WL 4270847.)

Involuntary Dissolution of a Limited Liability Company and Corporations Code § 17707.03.

This action concerns the purchase of minority interests in a California limited liability company under Corporations Code § 17707.03, subdivision (c). The trial court appointed three appraisers and confirmed a majority appraisers’ award. On appeal, appellant contended that the trial court’s order instructing the appraisers to review each other’s reports, confer with one another, and reach a consensus on the fair market valuation did not comply with the statutory procedures set forth in § 17707.03. That statute, appellant maintained, required the trial court either to confirm one of the three valuations initially submitted by the appraisers or to make a de novo determination of the fair market value of the LLC interests. Affirming the order, the Court of Appeal stated: “The appraisers’ award does not bind the trial court. The court may select among conflicting appraiser opinions or decide the matter de novo.” (Cheng v. Coastal L.B. Associates, LLC (Cal. App. 2nd Dist., Div. 2, Sept. 22, 2021) 2021 WL 4305054.)

In Neighbor Dispute, Defendants’ Lawyers Ordered to Pay Sanctions.

A tree obstructed plaintiff’s view. Plaintiff sought relief under the San Francisco Tree Dispute Resolution Ordinance  (S.F. Pub. Works Code, art. 16.1, § 820, et seq.), which creates “rights in favor of private property owners” to restore their “views lost due to tree growth” on adjoining property. After a bench trial, the court issued a tentative ruling in plaintiff’s favor, leaving open the issue of appropriate remedy. The parties engaged in judicial mediation and agreed to reconvene mediation in a few months. In the interim, defendants and their attorneys filed a motion to dismiss or for judgment on the pleadings. Plaintiff filed a motion for sanctions, and defendants followed up with their own sanctions motion. Finding defendants’ and their lawyers’ actions or tactics were made in bad faith and were frivolous or solely intended to cause unnecessary delay, the court ordered defendants and their trial counsel, jointly and severally, to pay sanctions of $47,345.30 pursuant to Code of Civil Procedure § 128.5. Affirming the award of sanctions, the Court of Appeal noted the sanctions were warranted to compensate plaintiff for the cost of her attorney fees. (Kahn v. Price (Cal. App. 1st Dist., Div. 3, Sept. 22, 2021) 2021 WL 4305035.)

Perhaps Another Lesson for Civil Lawyers [Preponderance of Evidence] to Borrow from a Criminal Case [Beyond a Reasonable Doubt]?

A criminal defendant was convicted of leaving the scene of an accident resulting in serious injury to another person. The victim had already undergone two surgeries to repair broken bones in his left leg; the bones had not healed; and he still had an open wound. The victim testified that as a result of his injuries he found it difficult to walk, balance, and sleep and that he was unable to return to work. The victim’s treating surgeon opined it was “likely” the victim’s leg would never be as good as it was prior to the accident, would “probably not” ever be as good as his other leg, and that the victim would “never be in as good of shape as he was prior to the accident.” Affirming the conviction, the Court of Appeal stated: “Appellant contends the evidence is insufficient to support the jury’s finding that [the victim] suffered a permanent, serious injury as a result of the accident, as provided in subdivision (b)(2) of [Vehicle Code] section 20001. We conclude otherwise.” (People v. Chavez (Cal. App. 2nd Dist., Div. 6, Sept. 22, 2021) 2021 WL 4304523.)

Police Officer Ordered Police Dog to Bite Struggling Suspect.

After being spotted in a stolen car, a man fled from the police. He led them on a car chase and then on a foot chase. An officer eventually caught up to him. But he wasn’t arrested quietly. He continued to struggle. An officer then commanded a police dog to bite the man’s leg. The man was finally subdued and charged with resisting arrest. As his case worked its way through the criminal justice system, the man filed a civil rights action alleging the use of the police dog was excessive force. The district court found his claims barred by Heck v. Humphrey (1994) 512 U.S. 477, which holds that a civil rights claim pursuant to 42 U.S.C. § 1983 must be dismissed if a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence. Affirming, the Ninth Circuit stated: “The factual basis for Sanders’s plea was based on multiple acts of resisting arrest, including his struggle with officers when the K-9 bit him. Because a favorable judgment on his § 1983 claim would necessarily call into question the validity of his conviction, we affirm the dismissal of his claims.” (Sanders v. City of Pittsburg (9th Cir., Sept. 23, 2021) 2021 WL 4314796.)

Ninth Circuit Vacates Injunction in Favor of the Homeless in Los Angeles.

The district court issued a sweeping preliminary injunction against the County and City of Los Angeles. It ordered, among other relief: (1) the escrow of $1 billion to address the homelessness crisis; (2) offers of shelter or housing to all unhoused individuals in Skid Row within 180 days; and (3) numerous audits and reports. The court’s order was premised on its finding that structural racism—in the form of discriminatory lending, real estate covenants, redlining, freeway construction, eminent domain, exclusionary zoning, and unequal access to shelter and affordable housing—was the driving force behind Los Angeles’s homelessness crisis and its disproportionate impact on the Black community. The Ninth Circuit vacated the injunction and remanded the matter for further proceedings, noting that, even though plaintiffs now embraced the lower court’s reasoning, plaintiffs did not bring most of the claims upon which relief was granted. The appeals court said the trial court filled this gap by impermissibly resorting to independent research and extra-record evidence. (LA Alliance for Human Rights v. County of Los Angeles (9th Cir., Sept. 23, 2021) 2021 WL 4314791.)

Attorney Fees Under Common Fund Theory.

The so-called common fund exception to the American rule regarding the award of attorney fees is grounded in the historic power of equity to permit a party preserving or recovering a fund for the benefit of others in addition to himself to recover his costs, including his attorneys’ fees, from the fund itself. Here, plaintiff was a self-represented attorney, and the issue was whether he could recover attorney fees and costs under the common fund theory. The Court of Appeal ruled: “We hold that an attorney who represents only himself and does not pay or become liable to pay consideration in exchange for legal representation may not recover attorney fees under the equitable common fund doctrine, but may seek recovery of legitimate, reasonable costs excluding attorney fees under that doctrine.” (Leiper v. Gallegos (Cal. App. 2nd Dist., Div. 6, Sept. 23, 2021) 2021 WL 4315814.)

Like a Good Neighbor, State Farm Is There.

Fire destroyed plaintiffs’ homes. They sued State Farm for intentionally or negligently underinsuring their homes. The trial court granted summary judgment for State Farm. For one of the homeowners, the Court of Appeal affirmed because the operative pleading did not include any facts relating to a special duty of care for negligence. Nor did that homeowner’s opposition to summary judgment raise a triable issue of fact for his unfair competition claim. It also failed as a matter of law on the unfair insurance practices claim because private causes of action are barred. His breach of contract and breach of the implied covenant claim were barred because he stipulated that these issues would not be presented to the trial court. The cases of the other two homeowners were remanded to the trial court after the appeals court reversed their stipulated judgments. (Vulk v. State Farm General Ins. Co. (Cal. App. 3rd Dist., Sept. 23, 2021) 2021 WL 4317680.)

Claim of Unruh Violation Rejected by a Jury.

Plaintiff is blind and uses screen reader software to access the internet and read website content. Defendant and respondent Omni Hotels Management Corporation operates hotels and resorts. Plaintiff initiated this action against Omni, alleging that its website is not fully accessible by the blind and the visually impaired, in violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.). By way of a special verdict, the jury rejected plaintiff’s claim and found that she never intended to make a hotel reservation or ascertain Omni’s prices and accommodations for the purpose of making a hotel reservation. On appeal, plaintiff contended the trial court erred as a matter of law by instructing the jury that her claim required a finding that she intended to make a hotel reservation. Affirming, the Court of Appeal stated: “[F]or Thurston to prevail on her Unruh Act claim against Omni, she had to show a ‘bona fide intent’ to book a room.” (Thurston v. Omni Hotels Management Corp. (Cal. App. 4th Dist., Div. 2, Sept. 23, 2021.) 2021 WL 4315811.)

Appeals Court Provides Treatise on Government Claims.

Plaintiff was injured in a traffic accident involving a vehicle driven by an employee of a public entity. A chiropractic firm, without plaintiff’s authorization, filed a government claim for plaintiff that was rejected. The public entity contended the time clock for the six-month statute of limitations began with that rejection. The trial court sustained defendant’s demurrer, finding the government claim was untimely. Reversing, the Court of Appeal explained the government claim process: Public entities are not liable for torts except as provided by statute. (Gov. Code, § 815.) An employee of a public entity is liable for his torts to the same extent as a private person, and the public entity is vicariously liable for any injury its employee causes to the same extent as a private employer. (Gov. Code, §§ 815.2 & 820.) When a personal injury is involved, a written claim for damages must be presented to the public entity not later than six months after the accrual of the cause of action. (Gov. Code, §§ 911.2, subd. (a) & 945.4.) A notice that a claim was rejected must include a warning about the six-month statute of limitations applicable to a court action on the claim. (Gov. Code, §§ 913, subd. (b) & 945.6.) The appeals court held the six-month time period did not begin to run until plaintiff’s authorized claim was rejected. (Cavey v. Tualla (Cal. App. 5th Dist., Sept. 24, 2021) 2021 WL 4343719.)

Man Coerced by His Employer to Practice Gender Discrimination May Sue Under FEHA.

The Department of Fair Employment and Housing (DFEH) pursued claims against defendant based upon alleged violations of Government Code § 12948 and Civil Code §§ 51 and 51.5. Defendant, a financing company, used the gender of a car purchaser to decide how much risk it should take and how much it should pay for a contract. When an employee informed defendant that the procedure was illegal discrimination, defendant threatened to ruin the employee financially and also ordered him to “do his job or get fired.” The employee eventually collapsed and was taken to the hospital. After the employee reported the problem to DFEH, defendant falsely reported to various credit agencies that the employee had failed to repay a loan. The Court of Appeal held that employees who are coerced by their employer to violate Civil Code §§ 51 and 51.5 are aggrieved within the meaning of Government Code § 12965, subdivision (a) and have standing to sue their employer pursuant to Government Code § 12940, subdivision (i). (Department of Fair Employment and Housing v. M&N Financing Corporation (Cal. App. 2nd Dist., Div. 5, Sept. 27, 2021) 2021 WL 4398564.)

Federal Worker’s Comp Law Does Not Bar Med Mal Case.

Plaintiff, a veteran, worked as a nurse at a VA hospital. After suffering a psychotic breakdown, she was removed from the workplace in handcuffs and hospitalized. After release from the hospital, she sought psychiatric care at a VA hospital. While under treatment and having gotten little or no sleep for several days, plaintiff attacked and seriously wounded her mother with a knife. She was criminally prosecuted and spent a year in jail. She lost her job and has been unable to return to work. She brought an action under the Federal Tort Claims Act (28 USC § 2401(b); FTCA), alleging that two VA doctors failed to prescribe appropriate drugs for her condition. Prior to her breakdown, she had filed a claim under the Federal Employees’ Compensation Act (5 U.S.C. § 8101(1); FECA), the exclusive remedy for work-related injuries to federal employees. She alleged workplace bullying and harassment by her supervisor caused her psychotic breakdown. The district court dismissed the FTCA case, finding it was barred under the FECA. Reversing, the Ninth Circuit stated: “Our decision in Lance [v. United States (9th Cir. 1995) 70 F.3d 1093] does not control the outcome here because the injury for which Hawkins sought medical treatment was not job-related.” (Hawkins v. United States (9th Cir., Sept. 28, 2021) 2021 WL 4436193.)

Previously we reported: Mortgage Terms Depended Upon Borrower’s Race/Ethnicity.

The City of Miami claimed that two banks intentionally issued riskier mortgages on less favorable terms to African American and Latino customers than they issued to similarly situated white non-Latino customers in violation of the Fair Housing Act (42 U.S.C. § 3604(b); FHA). The FHA permits any aggrieved person to file an action for damages. The city alleged the banks’ discriminatory conduct led to a disproportionate number of foreclosures and vacancies in majority-minority neighborhoods, which impaired the city’s efforts to ensure racial integration, diminished the city’s property tax revenue and increased the demand for police, fire and other municipal services. The district court dismissed the complaint on the grounds the harms alleged fall outside the zone of interests the FHA protects, and a lack of causal connection between the city’s injuries and the banks’ discriminatory conduct.  The Eleventh Circuit reversed, concluding the city adequately pleaded the banks’ misconduct led to its financial injuries. The U.S. Supreme Court vacated the circuit court’s judgment and remanded the matter back to the district court, holding “the City’s claimed injuries fall within the zone of interests that the FHA arguably protects,” but the city must do more than show that its injuries foreseeably flowed from the alleged statutory violation. (Bank of America v. City of Miami (U.S., May 1, 2017) 137 S.Ct. 1296.)

The latest:

The City of Oakland claimed that Wells Fargo’s discriminatory lending practices caused higher default rates, which in turn triggered higher foreclosure rates that drove down the assessed value of properties, and which ultimately resulted in lost property tax revenue and increased municipal expenditures. The district court denied Wells Fargo’s motion to dismiss. Reversing, the Ninth Circuit, sitting en banc, stated: “These downstream ‘ripples of harm’ are too attenuated and travel too ‘far beyond’ Wells Fargo’s alleged misconduct to establish proximate cause. [Citation.] In this interlocutory appeal under 28 U.S.C. § 1292(b), we therefore reverse the district court’s partial denial of Wells Fargo’s motion to dismiss and remand for dismissal of the FHA claims.” (City of Oakland v. Wells Fargo & Co. (9th Cir., Sept. 28, 2021) 2021 WL 4436205.)

Guidelines for Courts in Evaluating Class Action Settlements.

This case involves a settlement of a wage and hour class action. At the time the action was settled, there were two other class actions making the same claims. A party to one of those other class actions intervened and filed an objection to the settlement. Reversing and remanding the settlement, the Court of Appeal found the release to be overbroad. The appeals court, however, affirmed most of the provisions in the settlement, and its analysis provides guidelines for future settlements. For example, the appeals court found there is nothing inherently wrong with what has become known as a reverse auction, and, at the very least, an objector must show some evidence of unfairness to the class or misconduct to support a collusive reverse auction finding. (Amaro v. Anaheim Arena Management (Cal. App. 4th Dist., Div. 3, Sept. 28, 2021) 2021 WL 4434970.)

Court Should Have Compelled Arbitration When There Was No Evidence Plaintiff Did Not Understand What He Was Signing When He Agreed to Arbitration.

Plaintiff, the son of a woman who died in defendant’s facility, does not understand English very well. The trial court denied defendant’s petition to compel arbitration after finding defendant failed to sufficiently inform plaintiff of the arbitration agreement’s contents, which were written in English. The Court of Appeal noted there was no evidence that plaintiff either requested assistance in understanding the document or was prevented from obtaining such assistance. Reversing, the appeals court stated: “In the absence of any evidence that Caballero communicated his inability to read the Arbitration Agreement prior to signing it, the petition to compel arbitration should have been granted.” (Caballero v. Premier Care Simi Valley LLC (Cal. App. 2nd Dist., Div. 6, Sept. 28, 2021) 2021 WL 4434524.)

Plaintiff Erred in Serving by Publication; Court Erred in Quashing Service on One Defendant Who Made a General Appearance.

The trial court entered default against defendants after plaintiff had served them by publication. Later, the trial court vacated the default and quashed service. The Court of Appeal held the trial court’s order granting the motion to quash was appealable, and in such an appeal the appeals court may also review an order vacating a default. The appeals court also held that plaintiff did not properly effect service by publication because the notices that he published specified the disputed property only by assessor’s parcel number and not by either legal description or street address. Further, the appeals court held that since one defendant made a general appearance by filing a motion to intervene, the trial court erred by quashing service on that defendant, but not by quashing service on other parties who had not appeared nor by vacating the default. (Humphrey v. Bewley (Cal. App. 4th Dist., Div. 2, Sept. 29, 2021) 2021 WL 4448946.)

Class Action Decertified.

Last year, the Ninth Circuit issued FTC v. Qualcomm Inc. (9th Cir. 2020) 969 F.3d 974, holding that Qualcomm’s modem chip licensing practices did not violate the Sherman Act. In the instant case, the district court certified a class action of plaintiffs who bought cellphones and alleged that Qualcomm maintained a monopoly in modem chips, harming consumers because the amount attributable to an allegedly excessive royalty was passed through the distribution chain to consumers in the form of higher prices or reduced quality in cellphones. Citing its holding from last year, the appeals court vacated class certification and remanded the matter to the trial court with instructions to consider the effect of FTC v. Qualcomm, and whether to apply the choice-of-law test to determine if predominance is met. (Stromberg v. Qualcomm Inc. (9th Cir., Sept. 29, 2021) 2021 WL 4448713.)

Environmentalists Prevail on Appeal.

A nonprofit organization, California River Watch, alleged that the City of Vacaville, California violated the Resource Conservation and Recovery Act (42 U.S.C. § 6902(b); RCRA), a statute that seeks to minimize the dangers accompanying hazardous waste disposal. To that end, the Act enables any person to sue any entity that is contributing to the transportation of dangerous solid waste. River Watch contended the city’s water wells were contaminated by hexavalent chromium, a carcinogen. River Watch alleged that carcinogen was in turn transported to the city’s residents through its water distribution system. The district court granted summary judgment in favor of the city. Vacating the lower court’s judgment, the Ninth Circuit remanded the matter, noting that “merely transporting solid waste does not create RCRA liability; only the transportation of solid waste that may create an imminent and substantial danger does.” (California River Watch v. City of Vacaville (9th Cir., Sept. 29, 2021) 2021 WL 4449231.)

Business and Professions Code Concerning Contingency Fees Applies to In-House Counsel.

Plaintiff was in-house counsel for defendant. Defendant’s founder orally promised plaintiff he would receive bonuses for working on a case involving defendant and an alleged fraudster. The two exchanged writings about the oral promise, but neither signed those writings. Plaintiff performed all the work, but the bonuses were not forthcoming and plaintiff sued for breach of oral contract. A jury issued a special verdict for plaintiff. On appeal, defendant contended the contract in question was void under Business and Professions Code § 6147, which requires contingency fee agreements to be in writing and signed by both parties. Plaintiff argued that the section was inapplicable as he, as in-house counsel, was paid wages and not fees. Reversing, the Court of Appeal stated: “We hold that, regardless of his status as in-house counsel, Missakian’s oral agreement with Amusement is a contingency fee agreement subject to section 6147 and is therefore unenforceable as a matter of law.” (Missakian v. Amusement Industry, Inc. (Cal. App. 2nd Dist., Div. 5, Sept. 29, 2021) 2021 WL 4451940.)

Tribe Wants It Both Ways . . . to Claim Sovereign Immunity and to Have Access to California Court Relief.

Plaintiff and defendant Tribe entered a construction contract for work on a casino and on reservation’s infrastructure. After the tribe refused to pay, plaintiff invoked the contract’s mediation and arbitration provisions. The tribe refused both mediation and arbitration, claiming sovereign immunity. That issue was considered in an earlier appeal after the trial court initially ruled for the tribe: The appeals court held the tribe expressly waived sovereign immunity in the contract. On remand, the trial court ordered mediation and arbitration in accordance with the rules of the American Arbitration Association (AAA), and the tribe refused to follow the court’s order. The tribe also threatened the AAA that it would disparage it, and the AAA declined to mediate or arbitrate the dispute. The tribe then prevailed upon a tribal court to enjoin mediation and arbitration. Meanwhile, the superior court issued orders awarding plaintiff attorney fees and costs, and subsequently it imposed monetary sanctions on the tribe—none of which the tribe has paid. The superior court then issued writs of executions, and the tribe impeded collection efforts. At the same time, the tribe appealed the award of sanctions and issuance of writs of execution to the Court of Appeal. Plaintiff moved to dismiss the tribe’s appeals under the disentitlement doctrine. Applying the doctrine, the appeals court stated that “the [t]ribe’s violations of the [s]uperior [c]ourt’s orders are more than sufficient to justify application of the disentitlement doctrine. These appeals are therefore dismissed, without prejudice to a motion for reinstatement if the [t]ribe complies with the [s]uperior [c]ourt orders within 90 days.” (Findleton v. Coyote Valley Band of Pomo Indians (Cal. App. 1st Dist., Div. 2, Sept. 29, 2021) 2021 WL 4452323.)

No Standing to Intervene in Class Action.

The superior court approved a settlement in an employee versus independent contractor class action. Movants/Appellants here were not parties to the action but sought to intervene in the matter and object to the settlement. They contended defendant engaged in a reverse auction by settling with plaintiffs for an unreasonably low amount, and the settlement contained other provisions that were unlawful and inconsistent with the purposes of the Private Attorneys General Act of 2004. (Lab. Code, § 2698 et seq.; PAGA.) The trial court denied the request to intervene. Affirming, the Court of Appeal stated, about the objectors: “[A]s PAGA plaintiffs in separate actions does not confer standing to move to vacate the judgment or challenge the judgment on appeal.” (Turrieta v. Lyft, Inc. (Cal. App. 2nd Dist., Div. 4, Sept. 30, 2021) 2021 WL 4472080.)

Judgment in Favor of Employer in Class Action Reversed.

The superior court entered judgment for defendant in an employee-versus-independent-contractor class action brought by newspaper carriers against a newspaper. The court relied on a regulation promulgated by the Employment Development Department (EDD) instead of the holding in Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341. Reversing, the Court of Appeal stated: “We agree that the question of whether the carriers are employees or independent contractors must be determined under the Borello test. As such, the trial court erred in deferring to the EDD regulations, which we conclude are inapplicable. Ultimately, the trial court also failed to properly analyze the factors required by Borello, and we therefore must reverse. However, we decline to resolve whether the carriers are employees or independent contractors, and instead remand for the trial court to address this question in light of the principles set forth herein.” (Becerra v. McClatchy Company (Cal. App. 5th Dist., Sept. 30, 2021) 2021 WL 4472625.)

Summary Judgment Reversed in Excessive Force Case Against Police.

Two police officers, dressed in civilian clothes, went to a 65-year-old plaintiff’s home to investigate whether he would brandish a gun after someone told the officers he saw plaintiff with something in his pocket that could have been a gun. The officers did not identify themselves as law enforcement. At some point, an officer spotted a rifle on plaintiff’s premises and ran toward it. It turned out to be unloaded. One officer held a gun to plaintiff’s head and, using profanities, ordered plaintiff to the ground and handcuffed him, leaving him face down in dirt. One officer told plaintiff he was a felon with a firearm, but plaintiff told them his felony had been expunged and he believed it was legal for him to own a firearm. Alleging physical and emotional injuries, plaintiff brought suit against the police pursuant to 42 U.S.C. § 1983. The trial court granted summary judgment for the police. Reversing, the Court of Appeal agreed with plaintiff that a reasonable jury could find that his injuries were proximately caused by the officers’ warrantless entry. (Murchison v. County of Tehama (Cal. App. 3rd Dist., Sept. 30, 2021) 2021 WL 4472028.)

Previously we reported: Sufficiency of Evidence Under a Clear and Convincing Burden of Proof.

The Supreme Court of California explained: “[W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” (Conservatorship of O.B. (Cal., July 27, 2020) 9 Cal.5th 989.)

The latest:

The Medical Board of California revoked petitioner’s medical license. Petitioner filed a writ of mandate or in the alternative administrative mandate and also filed an ex parte application for an order staying the decision pursuant to Code of Civil Procedure § 1095.5, subdivision (h) in the superior court. The superior court denied the application for stay. A few days after the California Supreme Court filed Conservatorship of O.B. (2020) 9 Cal.5th 989, petitioner asked the superior court to reconsider its denial of the stay application, requesting the trial court to apply the clear and convincing evidentiary standard to the issues whether the board was likely to prevail on the merits. The lower court again denied petitioner’s request, and petitioner filed a petition for writ of mandate in the Court of Appeal, contending the superior court erred in applying the preponderance of evidence standard of proof rather than the clear and convincing standard of proof in evaluating the stay request. Denying the writ petition, the Court of Appeal stated: “We disagree with petitioner’s implied abrogation argument but conclude, in sum, that a trial court reviewing an administrative agency’s findings under the independent judgment standard of review in section 1094.5 must, like under the substantial evidence standard of review, account for the standard of proof required and applied in the underlying proceeding.” (Li v. Superior Court of Sacramento County (Cal. App. 3rd Dist., Sept. 30, 2021) 2021 WL 4472069.)

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