Litigation Update: October 2024

Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 U.S. 388, a plaintiff has a right to file a civil action against a defendant who, acting under the authority of the federal government, violates a constitutionally protected right. Plaintiff was an inmate in a federal prison in California. He asked to be moved to a different cell after his cellmate, known to be violent, cut him. Prison authorities refused to move plaintiff, and a few weeks later, he was seriously injured by the cellmate. The district court denied defendants’ motions for judgment on the pleadings and for reconsideration. The Ninth Circuit dismissed defendants’ interlocutory appeal for lack of jurisdiction, stating: “Appellate courts may consider the underlying Bivens remedy when reviewing an interlocutory order denying qualified immunity—and may even consider it as a matter antecedent to qualified immunity. However, it does not necessarily follow that appellate courts can review on an interlocutory basis an order recognizing a Bivens action standing alone.” (Garraway v. Ciufo (9th Cir., Sept. 3, 2024) 113 F.4th 1210.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/03/23-15482.pdf

Plaintiff is a contractor that sued for payment on work it performed on a construction project. When the project began, plaintiff had a workers’ compensation insurance policy, but the policy was cancelled several months later, while the project was ongoing, for nonpayment of premiums. As a result of the policy cancellation, plaintiff’s contractor’s license was suspended by operation of law. Fully aware it was unlicensed and uninsured, plaintiff continued to work on the project, later explaining there was a dispute over the amount of workers’ compensation premiums it owed. A suspended contractor’s license can be retroactively reinstated if the licensee obtains and submits to the registrar a valid certificate of workers’ compensation insurance within 90 days of the certificate’s effective date. (Bus. & Prof. Code, §§ 7125.2, subd. (c), 7125.1, subd. (a).)  If the certificate is submitted to the registrar more than 90 days after its effective date, however, retroactive reinstatement is available only if the licensee shows “that the failure to have a certificate on file was due to circumstances beyond the control of the licensee.” Eventually, plaintiff had the license reinstated. Both the trial court and the appellate court found that since plaintiff was not a licensed contractor at all times during the performance of the work, no compensation was due and owing. Judgment was entered for defendant. (American Building Innovation LP v. Balfour Beatty Construction, LLC (Cal. App. 4th Dist., Div. 3, Sept. 3, 2024) 104 Cal.App.5th 954.)

https://www.courts.ca.gov/opinions/documents/G062471.PDF

In 2020, while attending a protest in San Jose against the killing of George Floyd by a Minneapolis police officer, plaintiff was struck in the groin by a 40mm foam baton round, fired directly at him by a police officer. Plaintiff sued, alleging that the officer’s use of force was retaliatory in violation of the First Amendment, and was excessive in violation of the Fourth Amendment. The police officer moved for summary judgment, arguing he was entitled to qualified immunity. The district court denied the motion, concluding that genuine disputes of material fact existed as to whether the police officer violated plaintiff’s clearly established rights. Affirming denial of the officer’s motion for summary judgment, the Ninth Circuit stated: “Viewing the evidence in the light most favorable to [plaintiff], as we must at this stage of the proceedings, genuine disputes of material fact exist as to whether [plaintiff’s] First and Fourth Amendment clearly established rights were violated.” (Sanderlin v. Dwyer (9th Cir., Sept. 4, 2024) 2024 WL 4033065.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/04/23-15487.pdf

A jury awarded $9.5 million against a decedent’s estate lawyer in an action brought by the disinherited son and grandchildren of the decedent. On appeal, the lawyer contended he owed no duty to plaintiffs. Reversing, the Court of Appeal agreed, concluding the evidence was insufficient to show the lawyer owed a duty of care to plaintiffs. (Grossman v. Wakeman (Cal. App. 2nd Dist., Div. 6, Sept. 4, 2024) 104 Cal.App.5th 1012.)

https://www.courts.ca.gov/opinions/documents/B329459.PDF

The Maricopa County Sheriff’s Office posts photographs of arrestees on its website, accompanied by identifying information, for several days after an arrest. These photographs are often gathered by other internet sites and thus remain available after they are removed from the county’s website, even if the arrestee is never prosecuted, let alone convicted. The result is public exposure and humiliation of pretrial detainees, who are presumed innocent and may not be punished before an adjudication of guilt. The district court dismissed a class action against the county. Reversing in part and affirming in part, the Ninth Circuit stated: “The state may not punish pretrial detainees without an adjudication of guilt. [Plaintiff] plausibly pleaded a substantive due process claim against the County based on pretrial punishment. We therefore reverse the district court’s dismissal. We affirm that court’s dismissal of [plaintiff’s] procedural due process and Sixth Amendment claims.” (Houston v. Maricopa, County of, Arizona (9th Cir., Sept. 5, 2024) 2024 WL 4048897.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/05/23-15524.pdf

In response to protests after George Floyd was killed in 2020, the Los Angeles Police Department set curfews, declared demonstrations unlawful, used non-lethal force to control crowds, and arrested thousands of people. Plaintiffs filed a class action alleging excessive force. The district court certified four classes, three seeking monetary damages and a fourth for injunctive relief. The Ninth Circuit reversed and remanded with directions to the district court to address whether the damages classes satisfied rule 23(b)(3)’s predominance requirement and rule 23(a)’s commonality question, and whether the injunctive relief class met the commonality requirement. (Black Lives Matter Los Angeles v. City of Los Angeles (9th Cir., Sept. 5, 2024) 113 F.3d 1249.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/05/22-56161.pdf

Plaintiff, who is incarcerated in a federal prison, was brutally assaulted and seriously injured in a gang related fight. His injuries included a fractured coccyx. The prison nurse did not transport him to a hospital but treated him with over-the-counter medications. Plaintiff filed this action, alleging deliberate medical indifference while incarcerated in violation of the Eighth Amendment’s proscription against cruel and unusual punishment. Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) 403 U.S. 388, a plaintiff has a right to file a civil action against a defendant who, acting under the authority of the federal government, violates a constitutionally protected right. The district court dismissed the action. Reversing, the Ninth Circuit concluded that plaintiff sufficiently alleged a claim under the Eighth Amendment. (Watanabe v. Derr (9th Cir., Sept. 6, 2024) 115 F.4th 1034.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/06/23-15605.pdf

Despite the Second Amendment, this country has longstanding laws prohibiting the carry of firearms at sensitive places such as schools and government buildings. New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. 1, 30, provides guidance on how to determine what kinds of places qualify as sensitive places such that firearms may be prohibited. The Ninth Circuit affirmed in part and reversed in large part district court orders preliminarily enjoining the implementation or enforcement of several provisions of Hawaii and California laws that prohibit the carry of firearms at sensitive places. (Wolford v. Lopez (9th Cir., Sept. 6, 2024) 2024 WL 4097462.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/06/23-16164.pdf

A medical malpractice action was filed in state court and removed to federal court. The district court remanded it to state court. Under the Federally Supported Health Centers Assistance Act (42 U.S.C. § 233(g)), employees of federally funded health centers can be deemed federal employees of the United States Public Health Service for the purpose of malpractice liability. The Ninth Circuit vacated the order remanding the case to the state court and sent the matter back to the district court, stating: “If the district court concludes that Dr. Tilley’s § 1442 removal was timely, it should decide whether Dr. Tilley was acting under a federal officer. . . .” (Blumberger v. Tilley (9th Cir., Sept. 9, 2024) 115 F.4th 1113.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/09/22-56032.pdf

Plaintiff alleged she was forced to resign from her role as Chief of Police for the City of Rancho Cordova over allegations that she sent racist text messages while working for the Sacramento County Sheriff’s Office (Department). She alleges that on New Year’s Eve in 2013, she was having “a friendly, casual text message conversation” with her co-worker. While exchanging New Year’s wishes and plaintiff sent videos of her children playing,  plaintiff wrote: “Some rude racist just sent this!!” along with two spam images she had received. Plaintiff forwarded the same images to a second co-worker that same evening. The messages were not posted on social media, nor otherwise made readily discoverable by the general public. The record is clear that the messages were intended for a purely private audience. Seven years passed, at which point the relationship between plaintiff and her co-workers deteriorated. In 2015, plaintiff was promoted to Assistant Chief of Police for the city. In 2019, plaintiff was informed of potential misconduct by the second co-worker, which she forwarded to the Department’s Internal Affairs Division. In 2020, plaintiff filed a formal complaint of harassment and retaliation against that co-worker with the county’s Equal Opportunity Employment Office. During the ensuing investigation, the second co-worker provided print-outs of the text messages plaintiff forwarded seven years earlier to the office where plaintiff had filed the complaint. The Department commenced an investigation of plaintiff and thereafter gave her a choice to resign or be terminated and publicly characterized as a racist. She resigned. Six months later, the NAACP published an open letter stating plaintiff had sent racially charged pictures to other Department employees. A newspaper republished the open letter’s allegations. As a result, plaintiff resigned from her longtime adjunct teaching position at a local university, and two prospective employers ended their consideration of her. Thereafter, plaintiff filed the instant action alleging various torts, denial of due process, deprivation of the right to free speech, First Amendment conspiracy, and breach of contract. The district court dismissed her First Amendment and derivative conspiracy claims. Affirming, the Ninth Circuit stated: “Taken together, each factor—content, form, and context—forecloses Adams’s claim that her speech addressed a ‘matter of public concern’ . . . .” (Adams v. County of Sacramento (9th Cir., Sept. 9, 2024) 2024 WL 4113546.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/09/23-15970.pdf

To make more parking spaces available and decrease traffic congestion, the City of Los Angeles levied a $63 fine on those who overstay their allotted parking time. In Pimentel v. City of Los Angeles (9th Cir. 2020) 974 F.3d 917, 922, 925, the Ninth Circuit upheld the fine against an excessive fines clause challenge under the Eighth Amendment, deferring to the city’s judgment in fashioning a fine to further these goals. This time around, the Ninth Circuit dealt with whether the city’s late fee of $63—which is imposed if driver does not pay the $63 parking fine within 21 days— violated the excessive fines clause. After the district court granted the city’s motion for summary judgment, the Ninth Circuit reversed, stating: “Based on the record before us, we hold that a genuine factual dispute exists about the City’s basis for setting the late fee at 100 percent of the parking fine. And given this factual dispute, we cannot say as a matter of law that the late fee is not grossly disproportional to the harm caused by the untimely payment of the parking fine under the Excessive Fines Clause. [¶] While we generally defer to the legislature, there is nothing to defer to here because the City has provided no evidence—no testimony, no declaration, no document—on how it set the $63 late fee amount. It is difficult for a moving party to prevail on summary judgment if it has not provided any evidence. And so it is here.” (Pimentel v. City of Los Angeles (9th Cir., Sept. 9, 2024) 115 F.4th 1062.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/09/22-55946.pdf

The state of Arizona barred two transgender girls, one age 11 and the other age 15, from playing school sports consistent with their gender identity, and the district court enjoined Arizona from so barring them. One of the district court’s findings was that “[t]ransgender girls who have not undergone male puberty do not have an athletic advantage over other girls.” Affirming the grant of the injunction to the transgender girls, the Ninth Circuit stated: “States have important interests in inclusion, nondiscrimination, competitive fairness, student safety, and completing the still unfinished and important job of ensuring equal athletic opportunities for women and girls, who must have an equal opportunity not only to participate in sports but also to compete and win. We hold only that the district court did not abuse its discretion by enjoining Arizona from barring Jane and Megan from playing school sports consistent with their gender identity while this litigation is pending.” (Doe v. Horne (9th Cir., Sept. 9, 2024) 115 F.4th 1083.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/09/23-16026.pdf

Invoking the Freedom of Information Act (5 U.S.C. § 552; FOIA), plaintiff sought incident reports and video footage concerning a pat-down search of a person that was allegedly performed by employees of the Transportation Security Administration (TSA) at an airport several days earlier. Several months later, plaintiff made the request again. When the items were not produced after the second request, plaintiff filed the instant action in federal court. Plaintiff again made the FOIA request in the action. Plaintiff was not satisfied with TSA’s untimely response. The question of first impression presented was what happens when an agency misses its statutory deadline and responds to a FOIA request only after the requester files suit. If the plaintiff remains dissatisfied with the agency’s response, should the plaintiff still be required to pursue an administrative appeal rather than litigating the dispute in federal court? The district court found plaintiff was required to pursue an administrative appeal. The Ninth Circuit reversed, holding a post-lawsuit response that is inadequate does not require dismissal for failure to exhaust. (Corbet v. Transportation Security Administration (9th Cir., Sept. 10, 2024) 2024 WL 4128829.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/10/23-55713.pdf

Citing the Fair Labor Standards Act (29 U.S.C. § 201 et seq.), staff nurses for the City and County of San Francisco contended they were entitled to time-and-a-half overtime. The city/county defendants countered compensation for the nurses satisfied the “salary basis test” since they are professional employees exempt from the overtime requirement. The district court granted summary judgment for the city/county. Reversing, the Ninth Circuit stated: “The proper focus for the salary basis test is whether an employee receives a predetermined amount of compensation on a weekly or less frequent basis, irrespective of any promises made in an employment contract. We must reverse the grant of summary judgment. The City’s compensation system does not necessarily flunk the salary basis test, but material factual questions remain in dispute regarding whether the City satisfied the test as a matter of practice. . . . We reverse and remand this case for those factual issues to be resolved.” (Silloway v. City and County of San Francisco (9th Cir., Sept. 11, 2024) 2024 WL 4140633.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/11/22-16079.pdf

A medical doctor agreed to consult on a sick patient’s case if she were transferred to a certain hospital. But an ICU doctor had to accept the patient for transfer and the patient died while awaiting the transfer. The children of the decedent sued the medical doctor for malpractice. The trial court granted summary judgment for the medical doctor, concluding the doctor did not owe decedent a duty of care because he did not affirmatively treat the patient and thus was not in a physician-patient relationship. Affirming, the Court of Appeal stated: “Because the undisputed facts show that Dr. Singh and the decedent were not in a physician-patient relationship, Dr. Singh did not owe the decedent a legal duty of care as a matter of law.”

(McCurry v. Singh (Cal. App. 3rd Dist., Sept. 10, 2024) 104 Cal.App.5th 1170.)

https://www.courts.ca.gov/opinions/documents/C098433.PDF

Defendant is a soils engineering firm that had performed what was alleged to be a very cursory geotechnical inspection of an excavated footing trench on plaintiff’s property for a home remodeling project. Plaintiff brought claims against the firm for professional negligence and nuisance when her home sustained significant damage from subsidence resulting from the construction. The firm filed for summary judgment, arguing it had no contract with plaintiff, and thus owed her no duty of care. The trial court agreed and granted the firm’s motion. Reversing, the Court of Appeal held: (1) the firm failed to meet its moving burden; (2) the firm owed plaintiff a duty of care; and, (3) the trial court erred in concluding plaintiff’s nuisance claim was identical to or duplicative of her negligence claim.

(Lynch v. Peter & Associates, Engineers, Geologists, Surveyors, Inc. (Cal. App. 4th Dist., Div. 3, Sept. 11, 2024) 104 Cal.App.5th 1181.)

https://www.courts.ca.gov/opinions/documents/G063021.PDF

The San Francisco Board of Supervisors passed an ordinance that created a longer notice timeline for landlords pursing at-fault evictions. The Court of Appeal agreed with the trial court that the ordinance was preempted by state law, stating: “The ordinance plainly prohibits a landlord from proceeding under the state statutory timeline by requiring the additional 10-day warning and cure period. [¶] . . . [¶] We also agree with plaintiffs that Ordinance No. 18-22 is impliedly preempted as state statutory law has fully occupied the field of landlord-tenant notification timelines.” (San Francisco Apartment Association v. City and County of San Francisco (Cal. App. 1st Dist., Div. 2, Sept. 11, 2024) 104 Cal.App.5th 1218.)

https://www.courts.ca.gov/opinions/documents/A166228.PDF

A sailboat was docked at Marina Del Rey. A dive service sent two men to inspect the boat. One of the men dove under the water to service the boat while the other worked onboard the boat. The man onboard activated the propeller at which point its blades cut through the hands of the man underwater, severely injuring him. The Limitations Liability Act (46 U.S.C. §§ 30501-30530; the Limitation Act) caps liability of a vessel and its cargo and creates a special procedure for a federal court to apportion this money among the injured parties. Here, the district court permitted the injured man to proceed in state court at the injured man’s request because nothing appeared to suggest the possibility of another claim. But, thereafter, a third party filed claims in federal court for indemnity, contribution, declaratory relief and attorney fees. The Ninth Circuit reversed the district court’s order and remanded for the court to resume jurisdiction under the Limitation Act. (In re Live Life Bella Vita LLC (9th Cir., Sept. 12, 2024) 115 F.4th 1188.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/12/23-55613.pdf

This is the third published case finding against the Department of Motor Vehicles (DMV) concerning the manner in which it conducts its administrative hearings. (See California DUI Lawyers Assn. v. DMV (2022) 77 Cal.App.5th 517, 532-533; Knudsen v. DMV (2024) 101 Cal.App.5th 186.) The issue in all three cases was the DMV’s policy of assigning a single employee to act as both the DMV’s advocate and the adjudicator in its hearings. Noting that the DMV hearing officer (HO) in the instant case cross-examined the driver and “marshalled, identified, and offered into evidence the DMV’s exhibits. HO Wallace then overruled Clarke’s objections and admitted those exhibits,” the Court of Appeal reversed the trial court’s denial of the driver’s writ of mandate.

(Clarke v. Gordon (Cal. App. 4th Dist., Div. 3, Sept. 12, 2024) 104 Cal.App.5th 1267.)

https://www.courts.ca.gov/opinions/documents/G062856.PDF

In an unlawful detainer action, the trial court dismissed the action after concluding that “person” as used in Code of Civil Procedure § 1161 means a natural person. Affirming, but for a different reason, the Court of Appeal stated: “Although we agree with the trial court’s ultimate determination that the three-day notice here is defective and therefore affirm, we disagree with the court’s unduly narrow definition of ‘person.’ We hold that as used in section 1161 subdivision (2), ‘person’ is defined by section 17 and includes corporations as well as natural persons. (C[ode] C[iv.] P[roc.,] § 17, subd. (b)(6).)” (City of Alameda v. Sheehan (Cal. App. 1st Dist., Div. 2, Sept. 13, 2024) 325 Cal.Rptr.3d 438.)

https://www.courts.ca.gov/opinions/documents/A168300.PDF

Petitioner and real party in interest (real party) entered into a romantic relationship when real party was pregnant with another man’s baby. The other man adopted the child. But it was petitioner and real party who raised him from birth until the child was five years old when petitioner and real party ended their relationship. At that point, real party cut off contact between petitioner and the child. Petitioner filed a petition to determine parental relationship. The family court denied temporary visitation to petitioner. Issuing a writ of mandate and ordering the lower court to conduct a new hearing, the Court of Appeal stated: “In sum, we conclude trial courts have discretion under sections 3022 and 3100, subdivision (a) to enter temporary visitation orders if the requesting party has made a preliminary showing that they are a presumed parent and the order is found to be in the best interests of the child.”(Feehan v. Superior Court of Alameda County (Cal. App. 1st Dist., Div. 3, Sept. 13, 2024) 2024 WL 4195484.)

https://www.courts.ca.gov/opinions/documents/A170984.PDF

Plaintiffs are individual consumers who purchased gasoline from stores owned by defendant. They alleged that then-President Trump engineered an antitrust conspiracy among the United States, Saudi Arabia, Russia, and others, which conspiracy entailed cutting oil production to ensure a rise in gas prices to increase defendants’ profits. Affirming the district court’s dismissal of the action, the Ninth Circuit stated: “In sum, the political question and act of state doctrines deprive us of subject matter jurisdiction over claims related to allegations of governmental collusion, both domestic and foreign. As to private collusion, Plaintiffs have not pled sufficient facts to establish a plausible antitrust conspiracy. And the district court did not abuse its discretion in denying Plaintiffs’ various procedural motions.” (D’Augusta v. American Petroleum Institute (9th Cir., Sept. 16, 2024) 2024 WL 4195329.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/16/23-15878.pdf

The trial court granted a request for a domestic violence restraining order (DVRO) for a woman and the restrained person’s child. During the hearing, the trial judge took the child into chambers for a discussion that was not recorded. When the court session resumed, the court told the parties: “I am not going to talk to you about things that I learned from [the child] except say that I did hear the recording that happened . . . when [the restrained person] and [the woman/mother of child] were having their domestic violence issues. It’s pretty awful, especially for a 12-year-old to listen to.” The restrained person appealed. Reversing, the Court of Appeal stated: “We agree with [the restrained person], however, that the trial court’s failure to have the interview reported or to otherwise inform him of the substance of what daughter said ‘fundamentally deprived him of the ability to rebut or explain [the] evidence the trial court considered and relied upon’ in issuing the DVRO.” (Cardona v. Soto (Cal. App. 1st Dist., Div. 1, Sept. 17, 2024) 2024 WL 4210661.)

https://www.courts.ca.gov/opinions/documents/A167089.PDF

Defendant appealed the district court’s grant of summary judgment for plaintiff. Plaintiff transported by sea roughly 40,000 tons of jet fuel belonging to defendant. This transport cost a little over $1,000,000. But after plaintiff delivered, defendant refused to pay. Defendant had already paid freight costs when it bought the fuel from a third company and had no intention of paying twice. The third company was also unwilling to pay plaintiff. Plaintiff’s contract was with a fourth company, which arranged the voyage. But the fourth company “experienced financial difficulties” and could not pay. So, plaintiff sued defendant for breach of contract. The lower court found for plaintiff, determining that defendant breached an express or implied contract to pay plaintiff for transportation, presuming that whoever accepts delivery of a shipment from a common carrier understands what they are liable to pay. Reversing, the Ninth Circuit stated: “But in a private carriage case like this one, notice of shipping costs and default terms cannot be presumed. It was therefore error to find that [defendant] had an implied obligation to pay under States Marine [International, Inc. v. Seattle-First National Bank, 524 F.2d 245, 248 (9th Cir. 1975)], and we must reverse.” (Milos Product Tanker Corporation v. Valero Marketing & Supply Company (9th Cir., Sept. 18, 2024) 2024 WL 4220689.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/18/23-55655.pdf

In an employment related arbitration, counsel for plaintiff employees mistakenly paid initial fees that should have been paid by the employer. Upon receipt of that payment, the arbitration provider marked the invoice “[c]losed” and “[p]aid” in its online payment system. In response to the payment snafu, the arbitration provider refunded the mistaken payment to the employees and issued a new invoice to defendant, which defendant paid within 30 days. Plaintiffs petitioned the superior court for an order compelling defendant to pay their arbitration-related attorney fees and costs pursuant to Code of Civil Procedure § 1281.97, arguing that defendant’s payment was untimely because it was not made within 30 days of the first invoice. The trial court denied plaintiffs’ petition. Affirming, the Court of Appeal stated: “[F]or purposes of determining whether a breach has occurred, section 1281.97 turns on whether the fees were paid within 30 days of the invoice’s due date—not how they were paid or why.” (Anoke v. Twitter, Inc. (Cal. App. 1st Dist., Div. 5, Sept. 18, 2024) 2024 WL 4230621.)

https://www.courts.ca.gov/opinions/documents/A168675.PDF

A 93-year-old resident of a facility died after she drank an industrial strength cleaner that had been poured into a beverage pitcher by an Atria employee and served to her and several other residents. Decedent’s family filed this action for damages. The trial court denied defendants’ motion to compel arbitration, concluding, among other things, that the decedent’s son was not authorized to sign the arbitration agreement executed in connection with decedent’s admission because, as the holder of a durable power of attorney (DPOA), he was not authorized to make health care decisions for decedent. Decedent’s daughter held decedent’s power of attorney for health care. On appeal, defendants challenged the trial court’s denial of their motion to compel arbitration on numerous grounds. They argued that, as holder of the DPOA, the son did have authority to sign the arbitration agreement, and the daughter did not. They also contended that, under the terms of the arbitration agreement, all of decedent’s heirs are bound to arbitrate their wrongful death claims. Finally, they asserted Code of Civil Procedure § 1281.2, subdivision(c), which allows an exception to arbitration when third party claims may be affected, is preempted by the Federal Arbitration Act (9 U.S.C. § 1 et seq.; FAA) or, at the very least, was improperly applied on these facts. Reversing, the Court of Appeal stated: “We will reverse the order denying arbitration and remand for further proceedings consistent with this opinion and the Supreme Court’s recent decision in Harrod v. Country Oaks Partners, LLC (2024) 15 Cal.5th 939 (Harrod) (petn. for cert. filed June 26, 2024).” (Maxwell v. Atria Management Company, LLC (Cal. App. 1st Dist., Div. 1, Sept. 19, 2024) 2024 WL 4259238.)

https://www.courts.ca.gov/opinions/documents/A168043.PDF

Plaintiff sought to hold Uber Technologies, Inc. and related companies vicariously liable for injuries he suffered when he was struck by an automobile driven by an Uber driver who had been driving for Uber for several hours that evening and had turned his Uber driver app to “offline”—meaning he was not available to receive requests for rides—about four minutes before the accident and more than a mile away from the location of the accident. The Uber driver testified that “I cut off my Uber” and “I went to McDonald’s, and then I went home, and then is the accident.” Uber moved for summary judgment on the ground it had no duty to plaintiff because the Uber driver was acting in his own personal capacity, not as an Uber driver, at the time of the accident. Plaintiff presented evidence that Uber drivers can go from “offline” to “available” within 30 seconds and are able to see an Uber map showing areas of high demand for rides even when they are “offline”; and that the Uber driver’s recollection of what he was doing during the hours before the accident was contradictory and inconsistent with Uber’s records. Plaintiff argued those inconsistencies reflected adversely on the driver’s credibility and there was a triable issue of fact as to whether he “was operating his vehicle with the intention of switching back to ‘available’ status at the time of his collision with Plaintiff.” The trial court found plaintiff’s arguments speculative; that what the driver was doing before the incident was irrelevant to establishing whether he was acting as an Uber driver at the time of the incident; and there was no evidence indicating he was not done driving for the night. The court therefore granted the Uber parties’ motion for summary judgment. Affirming, the Court of Appeal stated: “The undisputed material facts show Mr. Wilson was not acting as an Uber driver at the time of the accident.” (Kim v. Uber Technologies, Inc. (Cal. App. 2nd Dist., Div. 8, Sept. 20, 2024) 2024 WL 4259284.)

https://www.courts.ca.gov/opinions/documents/B331247.PDF

The real party in interest (real party) was charged with murder and attempted murder. His criminal defense lawyer issued criminal defense subpoenas to Snap, Inc., the corporation that operates Snapchat, and Meta, Inc., the corporation that operates Facebook and Instagram, seeking social media posts and other communications made by the victim on those platforms in the two years prior to his death. Real party sought this material because he believed it may contain information relevant to his defense, specifically showing the victim’s violent character. The trial court denied motions to quash the subpoenas and Snap and Meta petitioned the Court of Appeal for extraordinary relief. The Court of Appeal granted relief, but only insofar as to whom the information must be produced; that is, the subpoenaed information must be produced to the court in camera, but not to real party. The appeals court stated: “This writ proceeding presents a question of first impression that was raised but not decided by the California Supreme Court in Facebook, Inc. v. Superior Court (2020) 10 Cal.5th 329 (Touchstone): Whether the business models of social media companies like Meta, Inc. (Meta) and Snap, Inc. (Snap), under which they access their customer’s data for their own business purposes, excludes them from the limitations imposed on the disclosure of information by the Stored Communications Act (18 U.S.C. § 2701 et seq., SCA). As we shall explain, we conclude that the companies’ ability to access and use their customers’ information takes them outside the strictures of the [SCA].” The California Supreme Court granted review on September 18, 2024. The high court denied requests to depublish the opinion pending review. (Snap v. S.C. (Cal., Sept. 18, 2024) 555 P.3d 503.)

https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=3108058&doc_no=S286267&request_token=NiIwLSEnXkg%2FWyBJSCNdUEpIIEQ0UDxTKyM%2BTzxSQCAgCg%3D%3D

A man broke into one neighbor’s home and threatened to do the same to another neighbor. Police were called twice. The man sustained a traumatic brain injury during his military service and had suffered from chronic headaches and was diagnosed with atypical psychosis, depressive disorder, anxiety disorder, and substance abuse disorder. When the police arrived, the man barricaded himself inside his own apartment. Police tried to get him out by firing chemical munitions. When that was unsuccessful, they called out that a police dog would be sent in and that the dog would bite. The man came to the door and yelled at the police but didn’t come out. The police sent the dog in. Police followed and found the dog biting the man, and the man stabbing the dog multiple times with an arrow. Police ordered him to stop fighting the dog. When the man did not follow the order, a police officer shot the man three times, killing him. The man’s family filed a lawsuit, and the police moved for summary judgment. Plaintiffs’ opposition papers included expert declarations, which a federal judge excluded after determining the declarations attempted to introduce facts and legal conclusions not in the record. Reversing in part and affirming in part, the Ninth Circuit stated: “[W]e conclude that the district court abused its discretion in excluding the entirety of Plaintiffs’ expert reports with respect to each of their claims, except for Plaintiffs’ claim based on the defendant officers’ use of the police dog and Plaintiffs’ ADA disparate treatment claim. The defendant officers are not entitled to qualified immunity with respect to their use of deadly force and chemical munitions, but they are entitled to qualified immunity with respect to their use of the police dog.” (Hyer v. City & County of Honolulu (9th Cir., Sept. 23, 2024) 2024 WL 4259862.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/23/23-15335.pdf

Plaintiff pleaded guilty to obstructing a peace officer in violation of Penal Code § 148(a)(1). He later sued under 42 U.S.C. § 1983, claiming that the San Diego County Deputy Sheriffs who arrested him used excessive force. A federal court dismissed his complaint as barred by Heck v. Humphrey (1994) 512 U.S. 477. Under Heck, a § 1983 action cannot be maintained by a plaintiff who has been convicted of a crime if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Reversing, the Ninth Circuit stated: “In this case, plaintiff engaged in multiple acts of resistance or obstruction that could serve as a factual predicate for his § 148(a)(1) conviction, both before and after the use of force he claims was excessive. His guilty plea did not specify which act was the basis of his conviction. Success in his § 1983 lawsuit therefore would not undermine his guilty verdict because the verdict could be based on any one of his acts of resistance or obstruction.” (Martell v. Cole (9th Cir., Sept. 23, 2024) 2024 WL 4259864.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/23/23-55120.pdf

Plaintiffs brought a “lemon law” action pursuant to the Song-Beverly Act (Civ. Code, § 1790 et seq.). They named real party in interest Ford Motor Company as well as the dealership where they purchased the vehicle. Ford moved to compel arbitration, contending it was a third-party beneficiary to the sales contract between plaintiffs and the dealership, which contract contains an arbitration provision. Ford also argued plaintiffs were estopped from refusing to arbitrate their claims. The trial court granted the motion. Issuing a writ of mandate, the Court of Appeal held that Ford was not a third-party beneficiary and that plaintiffs were not estopped from refusing to arbitrate their claims. (Rivera v. Superior Court (Cal. App. 2nd Dist., Div. 6, Sept. 23, 2024) 2024 WL 4272356.)

https://www.courts.ca.gov/opinions/documents/B334522.PDF

Plaintiffs brought a False Claims Act (31 U.S.C. § 3730(b)(5); FCA) action against various Kaiser-related entities alleging Medicare fraud. The district court dismissed plaintiffs’ lawsuit as barred by the FCA’s first-to-file rule because it “related” to earlier-filed pending FCA actions against the same defendants named in this action or other Kaiser-related entities. A three-judge panel of the Ninth Circuit affirmed. The Ninth Circuit took the case en banc and held the first-to-file rule is not jurisdictional, stating: “When our law is wrong, it is our duty to correct it. This case brings to light an error in our caselaw. All we do today as an en banc court is bring ourselves in line with current Supreme Court doctrine. We REVERSE IN PART the district court’s holding that it lacked jurisdiction over plaintiffs’ case under the FCA’s first-to-file rule, and we REMAND to the three-judge panel of this court for further proceedings consistent with this opinion.” (Stein v. Kaiser Foundation Health Plan, Inc. (9th Cir., Sept. 24, 2024) 2024 WL 4271950.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/24/22-15862.pdf

While a student at Tamalpais High School, A.H.’s tennis coach sexually abused him. A.H. sued the school district for negligent supervision in failing to protect him from the abuse. At trial, A.H. argued that district employees’ failure to properly investigate a different student’s earlier complaint that the coach improperly touched him and their failure to properly supervise the coach following the complaint “empowered” the coach, resulting in his sexual abuse of A.H. A jury found the school district negligent and awarded A.H. damages of $10 million. Affirming, the Court of Appeal stated: “As we have described, our high court in C.A. [v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 875] held a school district can be held liable for negligent supervision when its supervisory employees ‘knew or should have known of [a school employee’s] dangerous propensities, but nevertheless hired, retained and failed to properly supervise her.’” (A.H. v. Tamalpais Union High School District (Cal. App. 1st Dist., Div. 2, Sept. 24, 2024) 2024 WL 4281756.)

https://www.courts.ca.gov/opinions/documents/A165493.PDF

A woman was under a Lanterman-Petris-Short Act conservatorship (Welf. & Inst. Code, § 5000 et seq; LPS) and living in a community care center, which is a skilled nursing facility, when she died. Her father had signed two optional arbitration agreements with the facility. After the woman’s death, both parents sued the facility, asserting both successor and individual claims. Defendant moved to compel arbitration, which the trial court denied. Regarding the wrongful death claim, the court found the agreement was not signed in the parents’ individual capacities. The court further found there was no evidence of the father’s authority to bind his daughter on the successor claims. Affirming, the Court of Appeal stated: “[T]he dispute in this case centered on Scott’s authority under the LPS to agree to arbitration on Lisa’s behalf. The trial court was not asked to decide whether the admissions agreement was valid and enforceable.” (Enmark v. KC Community Care, LLC (Cal. App. 2nd Dist., Div. 2, Sept. 25, 2024) 2024 WL 4290290.)

https://www.courts.ca.gov/opinions/documents/B333022.PDF

Plaintiff, a former employee of defendant, filed a lawsuit for wage and hour violations as a putative class action on May 23, 2022. Defendant proceeded with litigation, eventually entering a joint stipulation to, among other things, participate in mediation. In November, defendant, allegedly for the first time, discovered plaintiff had signed an arbitration agreement. Weeks later, defendant represented to the court it intended to proceed with mediation. The court signed the mediation order in March 2023. At that point, for the first time, defendant stated it would not participate in mediation but instead intended to file a petition to compel arbitration. It did not do so until May 3. The court determined defendant had waived arbitration. Affirming, the Court of Appeal stated: “The facts are not identical here, but the conclusions we can draw from them are. In Quach [ v. California Commerce Club, Inc. (2024) 16 Cal.5th 562], the defendants participated in more discovery. But here we have the entire mediation debacle, followed by a court order violated by Sunshine.” (Campbell v. Sunshine Behavioral Health, LLC (Cal. 4th Dist., Div. 3, Sept. 25, 2024) 2024 WL 4283848.)

https://www.courts.ca.gov/opinions/documents/G062886.PDF

Parents of a disabled adult daughter disagreed about whether certain statutes bar such a parent from seeking an order of child support from the other parent. Family Code § 3910 makes the parents of an adult child “who is incapacitated from earning a living and without sufficient means” financially responsible for maintaining that child “to the extent of their abilit[ies].”  Such adult children often receive certain types of government assistance, and Welfare and Institutions Code § 12350 states that “[n]o relative shall be held legally liable to support or to contribute to the support of any applicant for or recipient of [such] aid,” and further that “[n]otwithstanding [s]ection[ ] 3910 . . . of the Family Code, . . . no demand shall be made upon any relative to support or contribute toward the support of any applicant for or recipient of [such] aid.” The Court of Appeal held: “The Legislature intended Welfare and Institutions Code section 12350 to prevent government actors from seeking reimbursement for the cost of government assistance from relatives of aid recipients. Because Welfare and Institutions Code section 12350 bars only the government from seeking contribution from relatives to defray the costs of such aid, it does not bar a parent from seeking a court order requiring the other parent to contribute to the support of an adult disabled child under Family Code section 3910.” (In re Marriage of Cady and Gamick (Cal. App. 2nd Dist., Div. 1, Sept. 25, 2024) 2024 WL 4284274.)

https://www.courts.ca.gov/opinions/documents/B326716.PDF

The Hawai‘i Court Records Rules, which apply to all criminal and civil proceedings in Hawai‘i state courts, require that all “medical and health records” be filed under seal without further order of a judge. Plaintiff moved to unseal the court-ordered competency evaluations of a man charged with assault after hitting a gas station employee with a hammer, and then telling the arresting officer he heard voices and saw visions. The district court entered summary judgment for the court. On appeal, plaintiff asked the appeals court to determine whether a state may mandate the categorical sealing of all “medical and health records” filed in any state court proceeding to protect the individual privacy rights of the subjects of those records, without any case-by-case consideration of the privacy interest implicated by the records or whether less restrictive alternatives exist to sufficiently protect that interest. Finding the court rule unconstitutionally overbroad, the Ninth Circuit stated: “Because the First Amendment grants the public the presumptive right to access a substantial portion of the records sealed under the challenged provision, and Defendants have not articulated a compelling governmental interest sufficient to rebut the presumption of openness as to those records, we conclude that a substantial proportion of the challenged provision’s applications encroach on the public’s right to access these records, such that the provision is unconstitutionally overbroad.” (Civil Beat Law Center for the Public Interest, Inc. v. Maile (9th Cir., Sept. 26, 2024) 2024 WL 4295308.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/26/23-15108.pdf

The trial court granted an attorney’s request for scheduling relief six times over a period of eight months. The reasons cited for relief were based on California Rules of Court, rule 1.100, subd. (a)(1)(2), which provides for disability accommodation to “any lawyer, party, witness, juror, or other person with an interest in attending any proceeding before any court of this state.” Counsel’s request for accommodation was due to his bipolar disorder. The seventh time the same request was made, the trial court denied it. Affirming, the Court of Appeal stated: “We have no trouble concluding that, in the circumstances presented here, the court was within its discretion to deny a seventh request for postponement. . . . Why do we attach importance to the fact that the rule 1.100 applicant was a lawyer, not a litigant? Fundamentally, it means this case does not present the access to justice concerns at issue in Marriage of James [(2008) 158 Cal.App.4th 1261]. Christine, a party representing herself, sought a third trial continuance when her doctor recommended her hospitalization, without which she would be unable to be present and would be unrepresented at trial in a marriage dissolution proceeding. No such dilemma arose in this case.” (Friends of the South Fork Gualala v. Department of Forestry and Fire Protection (Cal. App. 1st Dist., Div. 4, Sept. 26, 2024) 2024 WL 4313713.)

https://www.courts.ca.gov/opinions/documents/A168163.PDF

Plaintiff is the United States represented by the Department of Justice. Defendants are doctors who create stem cells by removing fat tissue from a patient and breaking it down to concentrate the portion containing stem cells. The result is a mixture of stem cells, other types of cells, and cell debris called stromal vascular fraction (SVF), which they then administer to the patient. For example, defendants inject SVF directly into a patient’s knee to treat osteoarthritis. In recent years, clinics offering similar stem cell mixtures have proliferated despite concerns over whether such treatments are safe and effective. Here, the Ninth Circuit was asked to decide whether the Food and Drug Administration (FDA) can regulate certain stem cell mixtures advertised as treatments for a host of medical conditions. Holding the FDA can regulate stem cell injections, the Ninth Circuit stated: “Defendants argue that their SVF is not a ‘drug’ within the meaning of the Act and that, even if it is, some of their uses of SVF fall under an exception from FDA regulation for certain surgical procedures. We reject both arguments.” (United States v. California Stem Cell Treatment Center, Inc. (9th Cir., Sept. 27, 2024) 2024 WL 4312746.)

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/27/22-56014.pdf

In 2022, Congress amended the Federal Arbitration Act (FAA) by passing the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (9 U.S.C. §§ 401–402; EFAA). In general terms, the EFAA renders arbitration agreements unenforceable at the plaintiff’s election in sexual assault and sexual harassment cases that arise or accrue on or after March 3, 2022, the EFAA’s effective date. Plaintiff filed the present case against defendant hotel and two of its supervisors in 2023, alleging a pattern of sexual harassment and discrimination both before and after the EFAA’s effective date, as well as a variety of wage-and-hour violations. Defendants moved to compel arbitration, citing an arbitration provision in the hotel’s employee handbook. The trial court denied the motion to compel, concluding that the EFAA rendered the arbitration provision unenforceable as to all of plaintiff’s claims. The trial court also granted plaintiff leave to file a first amended complaint adding additional claims, including a claim for constructive wrongful termination. Affirming, the Court of Appeal stated: “We affirm the trial court’s order in its entirety. We conclude that the trial court properly found that under the EFAA’s plain language, (1) plaintiff’s sexual harassment claims alleging continuing violations both before and after the EFAA’s effective date are exempt from mandatory arbitration, and (2) plaintiff’s other causes of action are also exempt from mandatory arbitration under the EFAA because they are part of the same ‘case.’” (Doe v. Second Street Corp. (Cal. App. 2nd Dist., Div. 3, Sept. 30, 2024) 2024 WL 4350420.)

https://www.courts.ca.gov/opinions/documents/B330281.PDF

At a time when a university professor who had  bipolar II disorder was undergoing great emotional strain due to his marriage breaking up, he was dismissed by the university for sexually harassing students and not showing up for his classes. The professor sued the university under the Fair Employment and Housing Act (Gov. Code, § 12940 et seq.; FEHA) and the Information Practices Act (Civ. Code, § 1798 et seq.; IPA). The trial court granted summary adjudication of three causes of action, while denying the plaintiff’s motion to compel responses to discovery and denying plaintiff’s request for a retrial of one cause of action for which the jury left the verdict form blank. The Court of Appeal affirmed in part, but reversed summary adjudication of plaintiff’s invasion of privacy claim under the IPA “because Wentworth’s evidence raises a triable issue of fact about whether the Regents violated the IPA by leaking to the media a letter about student complaints.” (Wentworth v. Regents of the University of California (Cal. App. 1st Dist., Div. 4, Sept. 30, 2024) 2024 WL 4350436.)

https://www.courts.ca.gov/opinions/documents/A168296.PDF