Litigation Update: October 2022

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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, Jonathan Grossman, Jennifer Hansen, Gary A. Watt, David Williams, Ryan Wu
Harassment Claim Against Federal Government Under the FTCA Remanded

Plaintiff worked for Immigration and Customs Enforcement (ICE) and alleged workplace harassment. The district court dismissed her action under the Federal Tort Claims Act (FTCA), finding the claim barred by the discretionary function exception. The discretionary function exception to the sovereign immunity waiver of the FTCA means the federal government has retained sovereign immunity for claims that are “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the” federal government. (28 U.S.C. § 2680(a).) Reversing the dismissal of plaintiff’s suit, the Ninth Circuit stated: “In sum, Myles’s allegations are without doubt sufficient to meet her burden to ‘state a claim to relief that is plausible on its face,’ meaning there is ‘more than a sheer possibility that the defendant has acted unlawfully.’” (Myles v. United States (9th Cir., Sept. 2, 2022) 47 F.4th 1005.)

Ninth Circuit Says California Supreme Court Violated Clearly Established Federal Law in Batson Analysis.

A criminal defendant was sentenced to death in 1994 after a California state jury convicted him of first degree murder and other offenses. In a federal habeas corpus petition, defendant contended the prosecutor’s use of peremptory challenges violated the Fourteenth Amendment right to equal protection pursuant to Batson v. Kentucky (1986) 476 U.S. 79. Batson established a three-step framework for trial courts to evaluate claims that a prosecutor’s peremptory strikes were racially discriminatory. Step One: the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Step Two: once the defendant has made out a prima facie case, the burden shifts to the state to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. Step Three: if a race-neutral explanation is tendered, the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. The district court denied the petition. The Ninth Circuit stated: “The California Supreme Court violated clearly established federal law by unreasonably applying the United States Supreme Court’s decision in Johnson [v. California (2005) 545 U.S. 162] at Step One of [defendant’s] Batson challenge,” by denying the Batson claim based on reasons not offered in the trial court. Nonetheless, the Ninth Court affirmed the district court’s denial of the defendant’s Batson claim because he “did not meet his burden of showing of an inference of discrimination.” (Hoyos v. Davis (9th Cir., Sept. 2, 2022) 47 F.4th 1016.)

Games People Play in Trust Disputes.

Upon the death of decedent, his daughter, defendant here, became successor trustee of his trust. His third wife, plaintiff here, was not included in the trust. Litigation ensued. The parties settled, agreeing the trust would pay plaintiff $3 million. But the settlement agreement also provided the money would be paid “out of the escrow from the sale” of specified real property. Sale of the property—pending at the time the parties reached their agreement—fell through. Escrow never closed, and defendant, as trustee, never paid the $3 million. Plaintiff petitioned the trial court to enforce the underlying judgment. The trial court denied the petition. It concluded the settlement agreement—and, consequently, the judgment—were unenforceable. Reversing, the Court of Appeal stated: “Did the collapse of the sale void [trustee’s] promise to pay? [¶] The answer is no. We conclude the settlement agreement contained a condition precedent as to the method of payment, but [trustee’s] independent promise to pay $3 million is enforceable and remains payable upon the property’s sale. We reverse and remand.” (Estate of Jones (Cal. App. 1st Dist., Div. 3, Sept. 2, 2022) 82 Cal.App.5th 948.)

PAGA and a Collective Bargaining Agreement

This appeal concerned an arbitration clause in a construction industry collective bargaining agreement (CBA). The issue was whether the CBA barred an action under the Private Attorneys General Act (Lab. Code, § 2698 et seq.; PAGA.) PAGA allows employees—once they exhaust administrative procedures—to seek civil penalties for Labor Code violations, on behalf of the state. (Lab. Code, §§ 2699, subd. (a), 2699.3, 2699.5.) The trial court denied the employer’s petition to compel arbitration in the PAGA action. Reversing, the Court of Appeal stated: “The right to file a PAGA action generally cannot be waived by contract. However, the Labor Code exempts construction workers from PAGA if a CBA covers wages, hours and working conditions and (1) has a grievance and arbitration procedure to redress Labor Code violations; (2) clearly waives PAGA; and (3) authorizes the arbitrator to award all remedies available under the Labor Code. (§ 2699.6, subd. (a).) [¶] The parties’ CBA clearly waives PAGA and satisfies the requirements of section 2699.6, as a matter of law. Their dispute is exempt from PAGA.” (Oswald v. Murray Plumbing and Heating Corporation (Cal. App. 2nd Dist., Div. 2, Sept. 2, 2022) 82 Cal.App.5th 938.)

Conversion Therapy on Minors.

Conversion therapy encompasses therapeutic practices and psychological interventions that seek to change a person’s sexual orientation or gender identity. The goal is to change an individual’s sexual orientation from gay to heterosexual or to change an individual’s gender identity from transgender to cisgender or birth sex. The state of Washington enacted a law that added conversion therapy to patients under age eighteen to the list of unprofessional conduct for licensed health care providers. Plaintiff is a licensed marriage and family therapist whose work was informed by his Christian views. Plaintiff believes that the sex each person was assigned at birth was “a gift of God” that should not be changed and trumps an individual’s “feelings, determinations, or wishes.” Plaintiff sued Washington state officials seeking to stop enforcement of the law that made conversion therapy on minors unprofessional conduct. The district court dismissed the action. Affirming, the Ninth Circuit stated: “Washington’s licensing scheme for health care providers, which disciplines them for practicing conversion therapy on minors, does not violate the First or Fourteenth Amendments. States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because those treatments are implemented through speech rather than through scalpel.” (Tingley v. Ferguson (9th Cir., Sept. 6, 2022) 47 F.4th 1055.)

School Shooting.

A schoolteacher’s estranged husband came to a school and signed in at the receptionist’s desk as he had done in the past. The husband entered the classroom, and shot and killed his estranged wife and a student. He then committed suicide by shooting himself. The shootings occurred in the presence of a classroom of students. Various persons sued the school district contending it had a duty to take reasonable steps to protect students from criminal activity, and the district created a dangerous condition by failing to lock the front office door and equip classrooms with doors that locked. The trial court granted summary judgment for the school district. Affirming, the Court of Appeal stated: “[W]e conclude the Rowland [v. Christian (1968) 69 Cal.2d 108] factors (lack of foreseeability of harm and public policy counsels against imposing liability on defendants) justify limiting defendants’ duty to protect students from a known, trusted third party’s criminal harm,” and regarding dangerous condition stated: “[L]ocking the front office door (which leads to the classrooms) would not have affected the risk of harm faced by [the teacher] and her students. Even if that door had been locked, the receptionist would have unlocked it and permitted Anderson to proceed to [the teacher’s] classroom.” (C.I v. San Bernardino City Unified School District (Cal. App. 4th Dist., Div. 2, Sept. 6, 2022) 82 Cal.App.5th 974.)

Appeal Dismissed as Untimely After Problems with Electronically Filing Notice of Appeal

Defendants filed a notice of appeal more than 60 days after notice of entry of judgment was served. No motion was filed that would have extended the deadline. Plaintiff moved to dismiss the appeal as untimely. Defendants opposed dismissal on the grounds that they made a timely attempt to electronically file the notice of appeal. The Court of Appeal dismissed the appeal, explaining: “With the advent of electronic filing, two rules of court were enacted that arguably shelter (some) tardy notices of appeal from the jurisdictional deadline. (Rules 2.259(c) [‘If a technical problem with a court’s electronic filing system prevents the court from accepting an electronic filing . . . the court must deem the document as filed on that day’], 8.77(d) [if ‘good cause’ is shown based on ‘a failure at any point in the electronic transmission and receipt of a document, . . . the court may enter an order permitting the document to be filed nunc pro tunc’].).” The court concluded “(1) both rules potentially apply to a notice of appeal, but only rule 8.77(d) [was] invoked by appellants; (2) a motion under rule 8.77(d) must be filed in the appellate court; (3) a party seeking relief under rule 8.77(d) must demonstrate ‘good cause,’ which includes a preponderance of the evidence that an attempt to electronically file the document was made prior to the expiration of the deadline and that diligence was shown in promptly filing the notice of appeal after the failed attempt; and (4) appellants have not met that standard in this case.” (Garg v. Garg (Cal. App. 4th Dist., Div. 3, Sept. 7, 2022) 82 Cal.App.5th 1036.)

Previously we reported: Portion of California’s Gun Control Laws Found to be Unconstitutional.

California has restricted the sale of most firearms to anyone under 21. Several young adults, gun shops, and advocacy groups sued, asking the district court to enjoin the long gun regulation under the Second and Fourteenth Amendments. The district court declined to issue a preliminary injunction to enjoin enforcement of California’s requirement that young adults obtain a hunting license to purchase a long gun, and also declined to enjoin the ban on semiautomatic centerfire rifles. Affirming in part and reversing in part, the Ninth Circuit stated: “Unlike other gun-control laws that target a person’s specific and individual characteristics or actions (e.g., commission of felony, mental illness), California’s law strips individuals of their fundamental constitutional rights based solely on what other people in their group may have committed in the past. That is antithetical to the very nature of individual rights and leads us down a dark path.” (Jones v. Bonta (9th Cir., May 11, 2022) 34 F.4th 704.)

What happened next:

Guns.The issue before the U.S. Supreme Court was whether New York’s gun licensing regime respected the constitutional right to carry handguns publicly for self-defense. The court noted that in 43 states, the government issues licenses to carry based on objective criteria. But in six states, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need. The high court held: “Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.” (New York State Rifle & Pistol Association, Inc. v. Bruen (U.S., June 23, 2022) 142 S.Ct. 2111.)

The latest:

A petition for rehearing en banc was denied, but a petition for panel rehearing was granted, and the panel’s opinion was vacated. The district court’s order denying plaintiffs’ motion for a preliminary injunction was vacated. The case was remanded for further proceedings consistent with Bruen. (Jones v. Bonta (9th Cir., Sept. 7, 2022) 47 F.4th 1124.)

Respecting Fishing Rights of Tribe.

Members of the Metlakatlan Indian Community inhabit the coast of the Pacific Northwest and fish in its waters. In 1891, Congress passed a statute recognizing the Community and establishing the Annette Islands Reserve as its reservation. (25 U.S.C. § 495.) In 1916, President Woodrow Wilson proclaimed that the Metlakatlans’ reservation extends 3,000 feet from the shoreline of the Annette Islands, and that the Metlakatlans have an exclusive right to fish within the reservation boundaries. After the proclamation, the Metlakatlans continued to fish, as they always had, both in the waters immediately surrounding the islands and in waters far from the islands’ shores. In 1972, Alaska amended its constitution to authorize the state to restrict the entry of new participants into commercial fisheries in state waters. Pursuant to the amendment, Alaska enacted a statute creating a limited entry program for commercial fishing. In 2020, in response to Alaska’s attempt to subject the Metlakatlans to its limited entry program, the community sued Alaskan officials in federal court, contending the 1891 act grants to the community and its members the right to fish in the off-reservation waters where community members have traditionally fished. The district court disagreed, holding that the act provides no such right. Reversing, the Ninth Circuit held “that the 1891 Act grants to the Community and its members a non-exclusive right to fish in the off-reservation waters where they have traditionally fished.” (Metlakatla Indian Community v. Dunleavy (9th Cir., Sept. 8, 2022) 48 F.4th 963.)

Firing the Messenger.

Title IX of the Education Amendments of 1972 generally bars sex-based discrimination in schools receiving federal funding. In 2015, plaintiff provided defendant an employee self-evaluation, in which he stated that he aimed to “[a]ssist Carroll Athletics in becoming Title IX compliant.” Then in January 2016, plaintiff informed Renee McMahon—the Title IX Coordinator and the Director of Human Resources at Carroll College—about potential Title IX violations. The next month, plaintiff received a performance review that gave him the lowest possible score in each category. Eventually plaintiff sued the college after his employment contract was not renewed. The district court granted summary judgment for the college. Reversing, the Ninth Circuit found that plaintiff had made a prima facie case of adverse employment action: “[N]onrenewal” of an employment contract “may be an adverse action because it is ‘reasonably likely to deter employees from engaging in protected activity.’” (MacIntyre v. Carroll College (9th Cir., Sept. 8, 2022) 48 F.4th 950.)

Party Represented by Counsel Is Entitled to an Award of Fees and Costs Even if They Were Paid by a Third Party.

Defendant was the prevailing party in a lawsuit brought by plaintiff to recover on a payment bond. The trial court denied defendant’s request for attorney fees and costs on the ground that a third party paid the fees and costs under an indemnity agreement. On appeal, defendant contended it was entitled, as the prevailing party, to recover reasonable attorney fees and costs anyway, pursuant to Civil Code § 9564, subdivision (c) and Code of Civil Procedure §§ 1032, subdivision (b) and 1033.5, subdivision (a)(10)(B). Agreeing with defendant, the Court of Appeal reversed, holding that a party represented by counsel in an attorney-client relationship is entitled to an award of fees and costs even if they have been or will be borne by a third party. (Cell-Crete Corporation v. Federal Insurance Company (Cal. App. 4th Dist., Div. 2, Sept. 8, 2022) 82 Cal.App.5th 1090.)

County Defendants Dismissed from Action Where Three Health Care Providers Were Murdered. 

A troubled veteran murdered three women at the Yountville campus of the Veterans Home of California in March 2018. Families of the three victims sued various entities in this consolidated action. The trial court dismissed the county defendants after sustaining demurrers in two of the cases on the ground that they fail to allege facts establishing a duty of care upon which to predicate the county defendants’ alleged liability for negligence. Plaintiff alleged, among other things, that actions taken by a sheriff’s deputy prompted the veteran to kill the victims. Affirming, the Court of Appeal found that the alleged connections between the deputy’s actions and the murders were little more than speculation, and plaintiffs failed to allege facts establishing a duty of care upon which to predicate the county defendants’ alleged liability for negligence. (Golick v. State (Cal. App., 1st Dist., Div. 3, Sept. 8, 2022) 82 Cal.App.5th 1127.)

Penalty Against Correctional Officer Reversed After He Supervised a Contraband Surveillance Watch.

Contraband surveillance watch is a procedure for monitoring prison inmates suspected of hiding drugs or weapons inside their body. The inmate is physically restrained and placed in an isolated cell under constant, one-on-one observation until they excrete the contraband, or until 72 hours have elapsed, at which point special approval is needed to extend the procedure. Plaintiff is a correctional sergeant employed by the Department of Corrections and Rehabilitation. He appealed the denial of his writ petition seeking to set aside the decision of the State Personnel Board (SPB) to reduce his salary by 10 percent for two years as a penalty for an incident that occurred while he was supervising a contraband surveillance watch shift at Pelican Bay State Prison. Agreeing with plaintiff that the SPB’s decision violated his due process rights because he was not notified that he was to be disciplined for two years, the Court of Appeal reversed the judgment and directed the lower court to issue a peremptory writ of mandate directing the SPB to set aside its decision. (Rodgers v. State Personnel Board (Cal. App. 4th Dist., Div. 2, Sept. 9, 2022) 83 Cal.App.5th 1.)

Family Court Erred in Not Awarding Pendente Lite Attorney Fees Early in the Dissolution Action.

Family Code § 2030 provides that family courts “shall ensure that each party has access to legal representation, including access early in the proceedings,” by awarding pendente lite attorney fees when certain statutory conditions are met. In this case, the court failed to rule on the wife’s request for pendente lite fees, so she represented herself at trial and bungled a key issue. Reversing the judgment, the Court of Appeal stated: “If Dawn had been represented by counsel, it is reasonably probable that the grant deed would have been offered and admitted into evidence and that she would have prevailed on the transmutation issue. . . [¶] Here, Dawn’s request for pendente lite attorney fees was made early in the marriage dissolution proceedings and had been pending for over a year when the trial started.” “We interpret the phrase ‘shall ensure’ to mean family courts have a mandatory obligation to order a party to pay attorney fees of the other party when the circumstances specified in the statute exist. In addition, the reference to ‘access early in the proceedings’ and other statutory text means family courts must not unreasonably delay their ruling on a request for pendente lite attorney fees.” (In re Marriage of Knox (Cal. App. 5th Dist., Sept. 9, 2022) 83 Cal.App.5th 15.)

At Least Temporarily, a Jewish University May Refuse to Recognize an LGBTQ Student Group.

A deeply religious Jewish university asked the U.S. Supreme Court to stay an injunction ordering it to immediately approve an official “Pride Alliance” student club, contending the university could not comply with that order because doing so would violate its sincere religious beliefs about how to form its undergraduate students in Torah values. Justice Sotomayor ordered the injunction stayed. The order was subsequently vacated by Yeshiva University v. YU Pride Alliance (2022) 2022 WL 4232541. (Yeshiva University v. YU Pride Alliance (U.S., Sept. 9, 2022) 2022 WL 4127422.)

Rights of the Deaf in Communicating with Health Professionals

Mark and Lucia, a married couple, have each been deaf since early childhood. Mark considers his first language to be American Sign Language (ASL) and his second language to be English. Lucia considers her first language to be Spanish, her second language to be ASL, and her third language to be English. At different times, both were patients at defendant acute care hospital. When one was hospitalized, the other was a companion. At times during their stay, they requested an in-person interpreter so they could communicate with medical staff. Sometimes, but not always, defendant provided an interpreter. Other times, defendant attempted to use Video Remote Interpreting (VRI). Mark and Lucia contended that connectivity problems prevented them from adequately communicating with medical staff when VRI was used. They sued under several federal and state antidiscrimination laws. The district court entered judgment for defendant hospital, including a finding that their claim under the Americans with Disabilities Act was moot since an injunction concerning defendant’s practices of communicating with the deaf had been ordered in another patient’s case. Affirming, the Ninth Circuit stated: “To avoid discriminating against persons with disabilities, covered entities must ensure meaningful access to their services. In circumstances such as those presented here, the touchstone of the accessibility analysis is whether the entity provided auxiliary aids sufficient to ensure ‘effective communication’ with deaf patients.” (Bax v. Doctors Medical Center of Modesto, Inc. (9th Cir., Sept. 12, 2022) 48 F.4th 1008.)

Court Abused Discretion in Granting Terminating Sanction

The trial court ordered the parties to exchange witness lists. Plaintiff failed to exchange her list. When the case was called for trial, her counsel explained that her only witness was plaintiff herself, and that counsel mistakenly believed that the pretrial order did not require her to list party witnesses. Pursuant to its pretrial order, the trial court dismissed plaintiff’s case and entered judgment for defendant. Reversing, the Court of Appeal “h[e]ld that, under the circumstances of this case, the trial court abused its discretion by imposing a terminating sanction.” (Guardianship of A.H. (Cal. App. 4th Dist., Div. 2, Sept. 12, 2022) 83 Cal.App.5th 155.)

Extra Pay for Lost Breaks Constitutes Wages, So Attorney Fees for Prevailing Party Are in Order.

The trial court awarded plaintiff $280,000 in attorney fees in a wage and hour case. Defendant employer appealed. The Court of Appeal held that pay for missed breaks was not wages, so plaintiff was not entitled to recover attorney fees under Labor Code § 226. The California Supreme Court ordered the appeals court to reconsider its opinion denying attorney fees in light of Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93, in which the Supreme Court concluded “extra pay” for missed breaks constituted “wages” that must be reported on statutorily required wage statements under Labor Code § 226. This time around, the Court of Appeal affirmed the fees award. (Betancourt v. OS Restaurant Services, LLC (Cal. App. 2nd Dist., Div. 8, Sept. 12, 2022) 83 Cal.App.5th 132.)

Pharmaceutical Company’s Action Against Compounding Company Dismissed

Plaintiff, a pharmaceutical company, successfully obtained the approval of the Food and Drug Administration (FDA) for ready-to-use ephedrine sulfate, which formerly came only in a concentrated form. Defendant is a compounding company. Compounding is a process of combining, mixing, or altering ingredients to create a medication tailored to the needs of individual patients. Compounded drugs are not FDA-approved. Defendant sold ephedrine sulfate in pre-loaded syringes. Plaintiff sued defendant for violating 21 U.S.C. § 353b by selling drugs not approved by the FDA. The district court dismissed the case for failure to state a claim. The Ninth Circuit affirmed, concluding plaintiff was attempting private enforcement. (Nexus Pharmaceuticals, Inc. v. Central Admixture Pharmacy Services, Inc. (9th Cir., Sept. 13, 2022) 48 F.4th 1040.)

An Employee Who Leaves Work for Good Cause Is Entitled to a Presumption She Did Not Voluntary Quit

With the agreement of her supervisor, plaintiff left work for about a week to care for a terminally ill relative. While she was away, her employer decided she had quit. Upon her return, the employer told her business was slow and gave her no new sales appointments. Plaintiff eventually made a claim for unemployment benefits with the Employment Development Department (EDD), telling the EDD she had lost her job due to a “temporary layoff.” The employer denied laying plaintiff off. While conceding that she left with her supervisor’s approval, the employer advised the EDD that plaintiff’s failure to provide a return date or otherwise communicate with her supervisor while she was away amounted to a voluntary quit. In administrative proceedings, it was found that plaintiff had abandoned her job. The trial court denied administrative mandamus relief. Reversing, the Court of Appeal noted it is undisputed plaintiff left her job in emergency circumstances with her employer’s approval, and that an employee who leaves work for good cause is entitled to a presumption that she has not voluntarily quit. The court explained: “The presumption may be overcome, but only upon evidence showing the employee positively repudiated her obligation to return in clear terms. The evidence here does not meet that standard.” (Johar v. California Unemployment Insurance Appeals Board (Cal. App. 1st Dist., Div. 4, Sept. 13, 2022) 83 Cal.App.5th 259.)

Privette Doctrine

Plaintiff is a worker employed by an independent contractor hired by defendant during a construction job. Plaintiff arrived at the job site and found the floor covered in ice. Defendant, who had caused the ice to form, told plaintiff to go back to work after plaintiff notified defendant about the ice. Plaintiff went back to work, and while trying to use a ladder on the ice, slipped and suffered injuries. Relying on the doctrine set forth in Privette v. Superior Court (1993) 5 Cal.4th 689, the trial court granted summary judgment for defendant. Under the Privette doctrine, a strong presumption exists that a hirer of an independent contractor delegates all responsibility for workplace safety. Here, plaintiff contended defendant wasn’t protected under Privette because defendant retained control over the independent contractor’s work and negligently exercised that control, which resulted in plaintiff’s injuries. Affirming, the Court of Appeal concluded that the trial court did not err in applying the Privette doctrine, noting that plaintiff’s employer, the independent contractor, had the authority to remove the ice, and the responsibility to take necessary precautions to protect its employees from any hazard posed by the ice. (McCullar v. SMC Contracting, Inc. (Cal. App. 3rd Dist., Sept. 13, 2022) 83 Cal.App.5th 197.)

Donor-Advised Fund

A donor-advised fund (DAF) is a charitable giving vehicle that allows donors to take a present-year income tax deduction, while distributing the funds to charity at a later time. Plaintiff opened a DAF at Schwab Charitable in 2007. The assets in plaintiff’s DAF were subject to at least two kinds of fees: an administrative fee and an investment fee. Plaintiff alleged that Schwab Charitable, its board of directors, and its Investment Oversight Committee breached their fiduciary duties under California law by partnering with Schwab & Co.—a legally separate but closely related company—for brokerage, custodial, and administrative services. According to plaintiff, this arrangement resulted in the defendants charging higher fees than they would have charged if Schwab Charitable had complied with its fiduciary duties. Plaintiff argued that these excessive fees injured him by leaving him with less money in his DAF to direct to charities. After defendants moved to dismiss, the district court held that plaintiff lacked standing under Article III and statutory standing under California law. Affirming, the Ninth Circuit held that plaintiff lacks standing to sue Schwab Charitable for allegedly breaching its fiduciary duties. (Pinkert v. Schwab Charitable Fund (9th Cir., Sept. 14, 2022) 48 F.4th 1051.)

Anti-SLAPP Motion in the Context of Peer Review Proceedings. 

Plaintiff, a medical doctor, alleged he made whistleblower complaints, which caused defendant hospital to retaliate against him by, among other things, suspending his medical staff privileges and initiating peer review proceedings to evaluate his privileges. In response, the hospitals filed an anti-SLAPP motion under Code of Civil Procedure § 425.16. After the hospitals argued plaintiff’s retaliation claim arose from the peer review proceedings, which were privileged activity, the trial court granted the anti-SLAPP motion. The Court of Appeal reversed, finding plaintiff’s retaliation claim did not arise from protected activity. The California Supreme Court granted review and determined that plaintiff’s retaliation cause of action was composed of nineteen distinct retaliation claims of which eight arose from protected activity, while the remainder did not. It remanded the matter back to the intermediate court to determine whether plaintiff has shown a probability of prevailing on these eight claims. On remand, the Court of Appeal concluded plaintiff had not met the requisite burden because the eight claims at issue were all precluded by the litigation privilege. The appeals court affirmed in part and reversed in part, stating: “[W]e reverse the trial court’s order granting the [h]ospitals’ anti-SLAPP motion in its entirety. We direct the court on remand to enter an order granting the motion as to the eight claims at issue and denying it as to the remaining retaliation claims.” (Bonni v. St. Joseph Health System (Cal. App. 4th Dist., Div. 3, Sept. 14, 2022) 83 Cal.App.5th 288.)

Effect of WCAB’s Denial of Disability Claim on FEHA Action.

Plaintiff appealed from the trial court’s grant of summary judgment for defendant, her former employer, on her claims of discrimination based on disability and race/national origin, and retaliation, under the Fair Employment and Housing Act (Gov. Code, §§ 12900 et seq.; FEHA) and Labor Code § 1102.5. The principal issue on appeal was whether a decision by the Workers’ Compensation Appeals Board (WCAB) denying plaintiff’s claim for disability discrimination under Labor Code § 132a had res judicata or collateral estoppel effect in the instant action. Reversing, the Court of Appeal stated: “For purposes of the instant matter, we conclude it does not. The trial court’s grant of summary judgment was based on giving collateral estoppel effect to the WCAB decision.” (Kaur v. Foster Poultry Farms LLC (Cal. App. 5th Dist., Sept. 14, 2022) 83 Cal.App.5th 320.)

City Is Not a Third-Party Beneficiary to NFL Constitution; It Loses Its Case Against the Oakland Raiders.

The City of Oakland filed suit against the National Football League (NFL) and its 32 member clubs, after one member club, the Raiders, relocated from Oakland to Las Vegas. The city alleged the defendants did not comply with the process for approving club relocations set forth in the NFL Constitution and related documents. The city asserted causes of action for breach of contract as a third-party beneficiary, breach of the implied covenant of good faith and fair dealing, and unjust enrichment. The trial court sustained the defendants’ demurrer to all three causes of action without leave to amend and entered judgment for the defendants. On appeal, the city argued the trial court erred in ruling it was not a third-party beneficiary of the NFL Constitution and related documents and therefore did not have standing to enforce those documents. The city also argued the court applied an incorrect legal standard in ruling on the demurrer to its cause of action for unjust enrichment. Affirming, the Court of Appeal stated: “We conclude that, because the [c]ity did not and cannot allege it is a third[-]party beneficiary of the alleged contracts, its causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing fail. We also conclude the [c]ity has not and cannot allege facts sufficient to state a cause of action based on a theory of unjust enrichment.” (City of Oakland, v. Oakland Raiders (Cal. App. 2nd Dist., Div. 7, Sept. 15, 2022) 83 Cal.App.5th 458.)

Police Not Immune in Police Chase that Resulted in Death.

Plaintiffs sued the City of San Diego for wrongful death and negligence, respectively, in connection with the death of a family member, who was operating a motorcycle that was the subject of a police vehicle pursuit when he crashed and was killed. Relying on immunity granted under Vehicle Code § 17004.7, the trial court granted summary judgment to the city. On appeal, among other arguments, plaintiffs argued the trial court failed to apply California Code of Regulations, title 11, section 1081, which includes certain standards that govern the required training on vehicle pursuits, including an annual one-hour minimum time requirement. Reversing, the Court of Appeal stated: “In the absence of training that met the standards imposed by Regulation 1081, as required by section 17004.7, the [c]ity is not entitled to immunity under that statute, as a matter of law.” (Flores v. City of San Diego (Cal. App. 4th Dist., Div. 1, Sept. 15, 2022) 83 Cal.App.5th 360.)

Defendant Medical Facility who Suffered Data Breach of Patients’ Personal Identifying Information Loses on Appeal. 

Plaintiffs were patients at defendant’s medical facility. Defendant suffered a data breach, in which plaintiffs’ personal identifying information (PII) was allegedly stolen by hackers and disseminated into the public domain. Defendant issued a notice of the data breach, acknowledging that patient records and data might have been taken, and encouraging patients to protect themselves from identity theft or fraud, including by monitoring their credit and financial accounts. Plaintiffs spent time on such monitoring, and one plaintiff purchased credit and identity monitoring services. Plaintiffs sued defendant on behalf of themselves and a putative class of patients affected by the data breach. The complaint contained causes of action for breach of contract, negligence, and violations of the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.; UCL). Plaintiffs alleged they suffered several injuries as a result of defendant’s failure to maintain adequate data security. The trial court sustained defendant’s demurrer to all claims without leave to amend. Affirming in part and reversing in part, the Court of Appeal stated: “We conclude appellants adequately alleged UCL standing and contract damages under their benefit-of-the-bargain theory, and appellant McKinley, who purchased monitoring services, did the same under appellants’ monitoring-costs theory. However, appellants have not shown the court erred in dismissing their negligence claim under the economic loss rule; nor have they shown the court abused its discretion in denying their request for leave to amend. Accordingly, we affirm the judgment with respect to the dismissal of appellants’ negligence claim without leave to amend, but reverse with respect to appellants’ UCL and contract claims.” (Moore v. Centrelake Medical Group, Inc. (Cal. App. 2ndDist., Div. 4, Sept. 16, 2022) 83 Cal.App.5th 515.)

Venue for Filing FEHA Cases when Employee Works Remotely.

Plaintiff filed her action for pregnancy discrimination, interference and retaliation under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq., FEHA), in Los Angeles County and the trial court granted defendant’s change of venue motion. The question before the Court of Appeal was whether plaintiff may bring her lawsuit in Los Angeles County, where she had been working remotely before being fired, or did the allegedly unlawful practices—terminating her employment while on protected pregnancy leave—occur only at her employer’s office in Orange County, where her employer argued plaintiff would have worked but for the unlawful practices. The appellate court granted plaintiff’s petition for writ of mandate, ordering the trial court to enter a new order denying the change of venue motion, stating that plaintiff “would have continued to work in Los Angeles County but for the unlawful employment practices.” (Malloy v. Superior Court (Cal. App. 2nd Dist., Div. 7,Sept. 19, 2022) 83 Cal.App.5th 543.)

Description on Price Tag Confusing to Consumer. 

Plaintiff went to Target to buy white chocolate chips and ended up buying some Market Pantry (Target’s store-brand name) White Baking Morsels, which had a price tag saying “WHT CHOCO.” He filed a class action against Target for false advertising under various consumer protection statutes. The trial court sustained Target’s demurrers without leave to amend, finding as a matter of law that no reasonable consumer would believe Target’s White Baking Morsels contain white chocolate. Reversing, the Court of Appeal stated: “At a minimum, a reasonable consumer could be confused about whether the morsels are made with white chocolate given the price tag’s description of the morsels as ‘WHT CHOCO’ and the fact that the product’s label does not clearly state whether they contain white chocolate.” (Salazar v. Target Corp. (Cal. App. 4thDist., Div. 2, Sept. 19, 2022) 83 Cal.App.5th 571.)

When Viewed in Context, a Reasonable Consumer Could Be Misled. 

Plaintiff went to Walmart and bought Walmart, Inc.’s “Great Value White Baking Chips” incorrectly thinking they contained white chocolate. He filed a class action against Walmart for false advertising under various consumer protection statutes. The trial court sustained Walmart’s demurrers without leave to amend, finding as a matter of law that no reasonable consumer would believe Walmart’s White Baking Chips contain white chocolate. Reversing, the Court of Appeal stated: “Walmart thus argues that the label is not misleading because it contains no false statements. [¶] . . . [¶] . . . The White Baking Chips look like chocolate chips, they are sold next to other real chocolate chip products, and their label depicts them on cookies to show they can be used for baking like chocolate chips. . . . When viewed in that context, a reasonable consumer could reasonably be misled to believe that the chips are white chocolate chips, because the consumer would not be aware that the chips could be something else.” (Salazar v. Walmart, Inc. (Cal. App. 4th Dist., Div. 2, Sept. 19, 2022) 83 Cal.App.5th 561.)

Plaintiff Lost on Individual Claims in Arbitration, But May Pursue PAGA Claims Nonetheless. 

Plaintiff sued her former employer and its alleged alter egos for, among other things, (1) individual claims for damages based on Labor Code violations; and (2) a representative claim for civil penalties for Labor Code violations under the Private Attorneys General Act (Lab. Code, § 2698 et seq.; PAGA). As plaintiff had signed an arbitration agreement, the trial court compelled her to arbitrate her non-PAGA claims and stayed her PAGA claim while she did. The arbitrator found that the alleged Labor Code violations had not occurred. The trial court then granted judgment on the pleadings against plaintiff on her PAGA claim; it ruled that the arbitrator’s findings established that she was not an “aggrieved employee” within the meaning of PAGA, and therefore that she lacked standing to bring a PAGA claim. On appeal, plaintiff contended that (1) the trial court erred by denying her petition to vacate the arbitration award; and (2) the trial court erred by ruling that the arbitration award barred her PAGA claim. Reversing in part and affirming in part, the Court of Appeal stated: “We will hold that the trial court properly denied the motion to vacate the arbitration award. However, we will also hold that the arbitration did not bar the PAGA claim because [plaintiff] was acting in different capacities and asserting different rights.” (Gavriiloglou v. Prime Healthcare Management, Inc. (Cal. App. 4th Dist., Div. 2, Sept. 20, 2022) 2022 WL 4354267.)  

Defendant Did Not Carry Burden on Summary Judgment Motion in Medical Negligence Action. 

On November 4, 2016, plaintiff was 39 weeks pregnant when she went to the hospital for a procedure to rotate her healthy fetus from a breech position to a head-first position. Later that night, following her discharge, Plaintiff failed to detect any fetal movement, and the next day the baby was determined to have suffered an intrauterine demise. The doctors told plaintiff and noted in the medical records that they could not determine the etiology of the fetal death. They also noted in plaintiff’s records that nothing in the literature indicated an association between the rotation procedure and fetal demise. Plaintiff did not suspect negligence until the following July 10, 2017, when one of the doctors refused to answer her questions about the autopsy results. On November 6, 2017, plaintiff served notice of her intention to commence an action against defendant pursuant to Code of Civil Procedure § 364. Within 90 days, on February 2, 2018, she filed her complaint alleging that defendant’s medical negligence caused her fetal demise. The trial court granted summary judgment for defendant on the basis of the statute of limitations set forth in Code of Civil Procedure § 340.5, reasoning that plaintiff was on inquiry notice when she learned of the fetal death on November 5, 2016. Reversing, the Court of Appeal found that defendant failed to establish that the one-year statute of limitations was triggered by plaintiff’s actual, subjective suspicion of wrongdoing on November 5, 2016, and concluded that “there is a triable issue of fact regarding the triggering of the limitations period.” (Kernan v. Regents of the University of California (Cal. App. 1st Dist., Div. 4, Sept. 20, 2022) 2022 WL 4363156.)

Exceptional Circumstances Justified Federal Court’s Not Assuming Jurisdiction of an Unruh Act Claim.

Plaintiff, a paraplegic who uses a wheelchair, faced numerous barriers to access at defendant’s shopping plaza, and sued for violation of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq., ADA) and the Unruh Civil Rights Act (Civ. Code § 51). The district court declined supplemental jurisdiction on the Unruh Act claim, dismissing it. Concluding there was no abuse of discretion because the lower court adequately articulated “exceptional circumstances” justified declining jurisdiction, the Ninth Circuit affirmed. (Vo v. Choi (9th Cir., Sept. 21, 2022) 2022 WL 4362289.)

Is a Bumble Bee a Fish? 

The California Endangered Species Act (Fish & G. Code, § 2050 et seq.) directs the Fish and Game Commission to “establish a list of endangered species and a list of threatened species.” The commission designated four bumble bee species as candidates for endangered species listing. Plaintiffs/petitioners challenged the commission’s decision, and later filed a petition for writ of administrative mandate, and the trial court granted the writ. The issue presented was whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish as that term is used in §§ 2062 (endangered species), 2067 (threatened species), and 2068 (candidate species, i.e., species being considered for listing as endangered or threatened species) of the act. Reversing, the Court of Appeal held the commission’s authority is not limited to listing only aquatic invertebrates. (Almond Alliance of California v. Fish and Game Commission (Cal. App. 3rd Dist., Sept. 21, 2022) 2022 WL 4374847.)

First Amendment Challenge to Zoning Laws. 

A man purchased 11 acres in Maui, and developed them without permits. He used the property as a venue to conduct commercial weddings, vacation rentals, retreats, and events—all without the requisite permits. By late 2015, around 550 weddings were performed on the property. The man was repeatedly put on notice that these activities required appropriate permits but continued to violate land use regulations. In 2007, the man formed a new nonprofit, Spirit of Aloha Temple, as “a branch of the Integral Yoga movement, a modern branch of the ancient Hindu yogic tradition.” That same year, the man applied for a special use permit for a “church, church[-]operated bed and breakfast establishment, weddings, special events, day seminars, and helicopter landing pad.” The County of Maui Planning Commission denied that permit, noting several buildings without proper permits; general problems with the helicopter pad’s location; and potential adverse impacts to surrounding properties from loud music, helicopter noise, and increased traffic. The man became a plaintiff when he brought facial and as-applied First Amendment prior restraint claims, Religious Land Use and Institutionalized Persons Act (42 U.S.C. §§ 2000cc, et seq.; RLUIPA) claims, and claims under the state and federal Free Exercise and Equal Protection clauses. The district court granted summary judgment for the county. Reversing, the Ninth Circuit stated: “Plaintiffs bring a successful facial First Amendment challenge to the [c]ounty’s zoning scheme.” Because the County of Maui’s permitting scheme gives county officials “an impermissible degree of discretion,” it fails as a valid time, place, and manner restriction on speech. (Spirit of Aloha Temple v. County of Maui (9th Cir., Sept. 22, 2022) 2022 WL 4374632.)

Correction of a Judgment Renewal Nunc Pro Tunc. 

A creditor filed a renewal request for a 2008 judgment and identified Estate Administrator Audrey Douglas as the judgment debtor without stating she was named in her role as the administrator of an estate as set forth in the original judgment. When the creditor/respondent discovered this, it filed a motion to correct the error. The trial court granted that motion and corrected the renewed judgment nunc pro tunc. The objecting beneficiary of the estate appealed asserting the trial court erred in correcting that error because it was not a clerical error. Affirming, the Court of Appeal, “conclude[d] the error here is a clerical error not a judicial error. The original judgment identifies the judgment debtor as Audrey Douglas, in her capacity as administrator. Respondent did not apply to the court via motion or application to change or alter that judgment in any way. Instead, respondent applied to the clerk to renew that existing judgment using the Judicial Council form and failed to include the capacity of the judgment debtor. The clerk’s entry of the renewal based on that application was ministerial, not judicial . . . .” (Douglas v. Douglas-Dorsey (Cal. App. 3rd Dist., Sept. 21, 2022) 2022 WL 4375862.)

Previously we reported: 

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

The latest:

The Ninth Circuit, en banc, vacated the circuit panel’s denial of the government’s request for a preliminary injunction, finding that the government and private immigration centers were likely to prevail on their claim that California’s statute violates the Supremacy Clause. The en banc court remanded for the district court to consider remaining preliminary injunction factors. (Geo Group, Inc. v. California (9th Cir., Sept. 26, 2022) 2022 WL 4459854.)

Another Faulty Special Verdict Form. 

Plaintiff prevailed before a jury and judgment was entered in her favor for $38,356.75 in unpaid overtime plus prejudgment interest, and $932,842.63 in attorney fees and costs. The primary focus of the appeal was a question on the special verdict form. When asked whether “Ms. Rodriguez performed exempt duties more than half of the time,” the jury answered “No.” Defendant employer contended on appeal that the narrow framing of this question effectively barred it from proving its executive exemption defense by allowing the jury to find liability without addressing the issue of the employer’s realistic expectations for how plaintiff/employee should have allocated her time. Reversing, the Court of Appeal stated: “We agree that the challenged special verdict question was erroneous and that the error was prejudicial. Accordingly, we reverse the judgment and vacate the award of fees and costs, without reaching any of [the employer’s] other arguments attacking the judgment or the merits of its attack on the award of fees and costs.” (Rodriguez v. Parivar, Inc. (Cal. App. 1st Dist., Div. 4, Sept. 26, 2022) 2022 WL 4463179.)

Defendant’s Late Payment of Arbitration Fees Ended It Back in the Trial Court. 

Plaintiff sued her former employer for discrimination and retaliation. The trial court granted defendant’s petition for arbitration and stayed the Superior Court litigation. Thereafter, the employer didn’t pay its arbitration fees by the statutory deadline, so plaintiff moved to lift the stay to permit her to proceed in the trial court. The trial court denied her motion and plaintiff petitioned the Court of Appeal for a writ of mandate. Granting the writ, the appeals court stated: “We agree with plaintiff that, based on the plain language as well as the legislative history of [CCP] section 1281.97, the Legislature intended courts to apply the statute’s payment deadline strictly. Thus, under section 1281.97, subdivision (a)(1), defendant was in material breach of the arbitration agreement even though, as the trial court found, the delay in payment was inadvertent, brief, and did not prejudice plaintiff.” (Espinoza v. Superior Court of Los Angeles County (Cal. App. 2nd Dist., Div. 1, Sept. 27, 2022) 2022 WL 4480057.)

Federal Court Erred in Written Order Approving Class Action Settlement.

The district court, presiding over a multidistrict litigation, approved a $310 million class action settlement resolving allegations that Apple, Inc. secretly throttled the system performance of certain model iPhones to mask battery defects. The court approved $80.6 million, representing 26% of the recovery, in fees to class counsel and also approved service awards to the named plaintiffs. Several class members who objected to these decisions now appeal. Vacating the lower court’s order, the Ninth Circuit stated: “Because the district court cited the wrong legal standard, we vacate and remand for it to reconsider settlement approval under the correct standard.” (In re Apple Inc. Device Performance Litigation (9thCir., Sept. 28, 2022) 2022 WL 4492078.)

Party Who Asked Arbitrator for Clarification Complained the Arbitrator Lacked Authority to Clarify the Award.

In a motion to vacate an arbitration award, the losing party contended that the arbitrator lacked authority to clarify the award; that the award was procured by undue means; and that the arbitrator’s award exceeded her powers. The trial court confirmed the award. Noting, among other things, that it was the complaining party who asked the arbitrator for clarification, the Court of Appeal affirmed. (Starr v. Mayhew (Cal. App. 4th Dist., Div. 3, Sept. 28, 2022) 2022 WL 4493266.)

The Privette Doctrine

The so-called Privette doctrine (Privette v. Superior Court (1993) 5 Cal.4th 689), deals with whether an entity that hires an independent contractor can be liable for on-the-job injuries sustained by the independent contractor’s workers. Defendant hired Charlie Gelatini to move an automated teller machine (ATM) on its premises. Plaintiff worked for Gelatini and was the person who performed the work. Plaintiff was injured when he fell off a scaffold and sought to hold defendant and one of defendant’s employees liable for his injuries. The scaffold was already in the room where the work was to be done. It had four wheels that had to be locked to prevent it from moving while in use. Plaintiff had never used a scaffold before. He did not know that it had wheels or that the wheels had to be locked in order to prevent it from moving. The trial court granted summary judgment for defendant. Finding that neither the retained control exception nor the concealed hazardous condition exceptions to the Privette doctrine apply, the Court of Appeal affirmed. (Miller v. Roseville Lodge No 1293 (Cal. App. 3rdDist., Sept. 28, 2022) 2022 WL 4493906.)

Medi-Cal Lien on Settlement Funds. 

A severely disabled child whose congenital abnormalities were undetected during his mother’s pregnancy until after viability sued various medical providers for wrongful life, settling with one doctor in 2018. The California Department of Health Care Services (DHCS) asserted a lien on the minor’s settlement to recover what DHCS paid for his medical care through the state’s Medi-Cal program, and the trial court awarded DHCS the full amount of the lien. Reversing, the Court of Appeal stated: “We reject [the minor’s] contentions that DHCS’s lien is preempted by federal law and that there is no substantial evidence that [the minor’s] settlement included payments for past medical expenses. However, we find that the trial court erred by failing to distinguish between past medical expenses and other damages, and to apportion the settlement accordingly. We therefore will reverse and remand to the trial court to make the required findings and allocation.” (Daniel C. v. White Memorial Medical Center (Cal. App. 2nd Dist., Div. 3, Sept. 28, 2022) 2022 WL 4516236.)

Duty Owed by Ambulance Company in Transporting Patient. 

While plaintiff was being transported by ambulance from a crisis stabilization unit to an inpatient psychiatric facility, she suddenly unbuckled the two belts strapping her to the semi-reclined gurney and stepped out of the back of the moving ambulance, sustaining serious injuries. She sued the ambulance company and the paramedic and emergency medical technicians  staffing the ambulance. Defendants moved for summary judgment on the sole ground they owed no duty “to prevent plaintiff from engaging in impulsive, reckless, irrational and self-harming conduct,” relying on Hernandez v. KWPH Enterprises (2004) 116 Cal.App.4th 170, and the trial court granted the motion. Reversing, the Court of Appeal stated: “Indeed, we fail to see how this case is any different in character than that against any other entity or person who has provided, or assisted in providing, medical services to a patient. There is no question, for example, that a facility, provider, nurse, or technician owes a patient a general duty of due care.” (T.L. v. City Ambulance of Eureka, Inc., (Cal. App. 1st Dist., Div. 1, Sept. 29, 2022) 2022 WL 4544295.)

Late-Payment Fee Imposed by Lender Against Public Policy. 

Plaintiffs took out a loan secured by real property. When they defaulted, the lender imposed a late-payment fee provided for in their loan agreement. The plaintiffs commenced arbitration, in which they contended the late-payment fee was unlawful (1) pursuant to regulations applicable to a mortgage-loan originator with a license regulated by the Department of Real Estate; and (2) because it was a liquidated damage constituting an unlawful penalty in violation of Civil Code § 1671.1 The arbitrator denied both claims. A petition to vacate the arbitration award in the trial court failed, and the order on that petition was appealed. Reversing, the Court of Appeal stated: “The trial court erroneously failed to vacate an award that constitutes an unlawful penalty in contravention of the public policy set forth in section 1671” (Honchariw v. FJM Private Mortgage Fund, LLC, (Cal. App. 1st Dist., Div. 3, Sept. 29, 2022) 2022 WL 4544812.)

Gun Battle in Morgan Hill. 

California law requires notification to “a local law enforcement agency in the jurisdiction in which the theft or loss occurred” within five days of when a gun is lost or stolen. (Pen. Code, § 25250, subd.(a).) In 2018, the Morgan Hill City Council adopted its own missing firearm reporting requirement. The ordinance requires notification to the Morgan Hill Police Department within 48 hours of discovering a gun is missing. (Morgan Hill Mun. Code, Ch. 9.04.030.) A reporting violation is a misdemeanor punishable by up to six-months in jail and a $1,000 fine. Plaintiffs, an individual and a rifle and pistol association, sued to invalidate the ordinance, contending the city’s ordinance is preempted by the state’s statute. The trial court granted summary judgment in favor of the city. Affirming, the Court of Appeal stated: “[L]ocal governments are free to impose stricter gun regulations than state law, which is what the ordinance at issue here does. It does not conflict with the more permissive state standard and is not preempted.” (Kirk v. City of Morgan Hill (Cal. App. 6th Dist., Sept. 30, 2022) 2022 WL 4592168.)

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