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Litigation Update: September 2019

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

  • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District
  • Managing Editor, Reuben Ginsburg
  • Editors, Dean Bochner, Glenn Danas, Jessica Riggin, and Kenneth Wang
Ninth Circuit Certifies a Question to the California Supreme Court Regarding Meal and Rest Breaks.

A truck driver brought a class action against his employer. He alleges that he and other drivers, while driving in California, were required to work through their daily meal and rest periods. Defendant’s safety trainer declared the company teaches “the importance of taking breaks to rest, eat, and attend to personal matters.” The federal district court granted summary judgment in favor of the employer. Pursuant to California Rules of Court, rule 8.548(f)(5), the Ninth Circuit Court of Appeals certified two questions to the California Supreme Court: “1. Does the absence of a formal policy regarding meal and rest breaks violate California law? 2. Does an employer’s failure to keep records for meal and rest breaks taken by its employees create a rebuttable presumption that the meal and rest breaks were not provided?” (Cole v. CRST Van Expedited, Inc. (9th Cir., Aug. 1, 2019) 932 F.3d 871.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/01/17-55606.pdf

Previously we reported:
Your Tax Dollars at Work; State Agency Ordered (Once Again) to Pay a Man His Unemployment Insurance . . . [Editor’s note: no wonder poor people have trouble finding representation].

The man’s work shoes were still in good shape, so he decided to donate his $150/year work shoe allowance for new work shoes for a friend. His attempted gesture was against company policy, and he was fired. The Employment Development Department (EDD) refused the man’s claim for unemployment insurance. Ordered twice by the trial court and once by the Court of Appeal to give the man his benefits, EDD refused, and the matter ended up at the Court of Appeal once again. In the present appeal, the appellate opinion states: “The Department, unfortunately, has shown itself repeatedly unable to see the forest in this matter, instead focusing doggedly on the bureaucratic trees.” The appellate court concluded: “The Department’s repeated error in this matter was its stubborn refusal to acknowledge that the exigencies of Robles’s extremely atypical situation could not be adequately addressed through recourse to ‘standard processing’ pursuant to its usual regulatory scheme. As a result, the trial court in this matter was confronted with a situation in which an individual who, though clearly substantively entitled to unemployment benefits under state law, had been denied those benefits for over three years. It has now been over five years since Robles, albeit misguidedly, offered to buy a pair of shoes for a friend. Enough is enough.” (Robles v. Employment Development Dept. (May 4, 2015) 236 Cal.App.4th 530.)

The latest:

After being ordered to compensate the worker in no uncertain terms by the Court of Appeal, the EDD finally paid plaintiff his money. Plaintiff filed a motion in the trial court for attorney fees under California’s private attorney general statute, Code of Civil Procedure § 1021.5. The trial court granted fees, but limited them to only part of the lengthy litigation. The Court of Appeal reversed the partial delial and remanded the matter for the trial court to make an additional fee award. (Robles v. Employment Development Dept. (Cal. App. 1st Dist., Div. 4) Aug. 1, 2019) 38 Cal.App.5th 191.)

https://www.courts.ca.gov/opinions/documents/A148803.DOCX

Award of Costs Under Code of Civil Procedure § 998 in FEHA Action Reversed.

Plaintiff, a police sergeant, sued the City of San Diego, alleging race discrimination and retaliation in violation of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA). Plaintiff rejected a $7,000 offer to compromise made by the city under Code of Civil Procedure § 998 and proceeded to trial, where the city prevailed. The trial court awarded the city a total of $51,946.96 in costs incurred after it served its § 998 offer, despite finding that plaintiff’s FEHA claims were not frivolous. While the appeal was pending, the Legislature amended Government Code § 12965, subdivision (b) to specifically state that, notwithstanding § 998 of the Code of Civil Procedure, a prevailing defendant may not recover attorney fees and costs against a plaintiff asserting non-frivolous FEHA claims. Reversing the award of costs to the city, the Court of Appeal stated: “We conclude that, with this amendment, the Legislature sought to clarify existing law, rather than to change it.” (Scott v. City of San Diego (Cal. App. 4th Dist., Div. 1) Aug. 1, 2019) 38 Cal.App.5th 228.)

https://www.courts.ca.gov/opinions/documents/D074061.DOC

Attorney Fees Award to Government Reversed.

Plaintiff injured herself on a stairway in a campground within a state park and sued the Department of Parks and Recreation for premises liability. The trial court awarded summary judgment to the department based on trail immunity under Government Code § 831.4, sudivision (b). It also awarded attorney fees and defense costs to the department under Code of Civil Procedure § 1038. Plaintiff challenged both rulings on appeal. The Court of Appeal affirmed in part and reversed in part, stating: “We affirm the trial court’s ruling that State Parks is entitled to immunity because the stairway is a ‘trail,’ or at least an ‘integral part’ of a trail, within the meaning of Government Code section 831.4, subdivision (b). However, we reverse the trial court’s award of attorney’s fees and costs, as we agree with [plaintiff] that the issue of immunity was not so clear cut that her lawsuit lacked reasonable cause.” (Lee v. Dept. of Parks and Recreation (Cal. App. 1st Dist., Div. 4, Aug. 2, 2019) 38 Cal.App.5th 206.)

https://www.courts.ca.gov/opinions/documents/A154021.DOCX

No Tort Duty During Contract Negotiations.

A homeowner made three home loans and defaulted on all three. He declared bankruptcy and emerged from it. He tried to modify his loans, but in the end he lost his house in foreclosure. He sued the lender in tort. The trial court sustained the bank’s demurrer. Affirming, the Court of Appeal stated: “The issue of whether a tort duty exists for mortgage modification has divided California courts for years. The California Supreme Court has yet to resolve this division. . . . We join with the old rule: no tort duty during contract negotiations.” (Sheen v. Wells Fargo Bank, N.A. (Cal. App. 2nd Dist., Div. 8, Aug. 5, 2019) 38 Cal.App.5th 346.)

https://www.courts.ca.gov/opinions/documents/B289003.DOCX

“By setting up a false choice between ‘voluntary’ abortions and ‘medically necessary’ abortions, the petitioner attempts to limit coverage of most abortions by health care service plans in California,” Court of Appeal.

Health care service plans are required by law to cover basic health care services “where medically necessary.” (Health & Saf. Code, §§ 1345, 1367, subd. (i); Cal. Code Regs., tit. 28, § 1300.67.) The director of California’s Department of Managed Health Care sent letters to seven health care service plans directing them to comply with California law in their coverage of abortion services. The letters informed the health plans that they were required to cover basic health services and that the California Constitution prohibits health care service plans from discriminating against women who chose to terminate a pregnancy. The health care service plans filed a petition for writ of mandate in superior court contending the letters constituted an underground regulation in violation of the Administrative Procedure Act (Gov. Code, § 11340; APA). The APA is basically a rule-making process that establishes procedures that state agencies must follow when adopting regulations. The health care plans contend the title 28 regulation requires them to cover medically necessary health care, but does not require them to provide voluntary abortions that do not place the mother’s life in jeopardy, and the letters add more to the regulation than was originally there. The trial court denied the petition and the health plans’ motion for new trial. Affirming the judgment, the Court of Appeal stated: “We hold that an abortion is one of two medically necessary options for the treatment of a woman’s pregnancy.” (Missionary Guadalupanas of the Holy Spirit Inc. v. Rouillard (Cal. App. 3rd Dist., Aug. 6, 2019) 38 Cal.App.5th 421.)

https://www.courts.ca.gov/opinions/documents/C083232.DOC

“A seal is presumed to be genuine,” Evidence Code § 1452.

The trial court admitted a document without any witness testifying that it was authentic. The document was titled “Final Costs Certificate” and ordered defendant to pay a certain sum to plaintiff. The Final Costs Certificate had no signature line or signature but bore a red stamp mark near the top. This circular red stamp was about two inches in diameter, with these words in a circular pattern: “* SENIOR COURTS OF ENGLAND AND WALES * COSTS OFFICE.” In the middle of the circle was “-2 JUL 2013,” and above that was a symbol of a crown. Defendant never contested the notion a foreign proceeding actually did occur, which culminated in a money judgment against it. Nor did defendant offer any evidence or make any offer of proof that the Final Cost Certificate lacked authenticity. Finding the trial court properly admitted the document because of its seal and lack of any evidence refuting its authenticity and citing Evidence Code § 1452, the Court of Appeal affirmed the judgment.  (Palm Finance Corp. v. Parallel Media, LLC (Cal. App. 2nd Dist., Div. 8, Aug. 7, 2019) 38 Cal.App.5th 516.)

https://www.courts.ca.gov/opinions/documents/B288017.DOC

State Court Retained Jurisdiction During Frivolous Removal to Federal Court.

Defendant #1 unsuccessfully removed a case to federal court. Changing only the name, defendant #2 filed an identical notice of removal. During that second removal period, the superior court denied defendant #1’s motion to strike. After that, the federal court remanded the matter to state court again. Thereafter, defendant #1 failed to respond to the complaint or appear for a case management conference. The trial court entered defendant #1’s default. Eight months later, defendant #1 unsuccessfully moved to set aside the default. A default judgment was entered against defendant #1. On appeal, defendant #1 contended the trial court lacked jurisdiction to rule on the motion to strike during the removal period. Affirming the default judgment, the Court of Appeal stated: “We hold the second notice of removal was untimely, frivolous, and duplicative.  Under these unique circumstances we conclude the court retained jurisdiction to rule on the motion to strike.” (ClipperJet Inc. v. Tyson (Cal. App. 4th Dist., Div. 3, Aug. 7, 2019) 38 Cal.App.5th 521.)

https://www.courts.ca.gov/opinions/documents/G055491.DOC

Contrary Expert Opinion Under the Guise of Impeachment.

After plaintiff’s expert testified in a personal injury case, the trial court permitted defendant to call an undesignated expert witness to refute the conclusions of plaintiff’s expert. Finding the trial court permitted contrary opinions under the guise of impeachment, the Court of Appeal reversed and ordered a new trial, stating: “We agree that the testimony of Dr. Wilson went beyond the scope of permissible impeachment by an undesignated expert, and that the effect of admitting his opinion testimony was prejudicial.” (Pina v. County of Los Angeles (Cal. App. 2nd Dist., Div. 4, Aug. 7, 2019) 38 Cal.App.5th 531.)

https://www.courts.ca.gov/opinions/documents/B285630.DOC

Denial of Loan Modification Was Not Sufficiently Detailed.

Plaintiffs are borrowers who sued a bank over attempts to modify their home mortgage. The trial court sustained the bank’s demurrer without leave to amend. Reversing, the Court of Appeal stated that Civil Code § 2923.6, subdivision (f)(2) requires a servicer of a loan, following the denial of a loan modification, to specifically identify its reasons for denial. Here, the bank said: “[we] do not have the contractual authority to modify your loan because of limitations in our servicing agreement.” The Court of Appeal held the bank’s reason “does not suffice as an explanation—at least for purposes of a demurrer.” (Potocki v. Wells Fargo Bank, N.A. (Cal. App. 3rd Dist., Aug. 8, 2019) 2019 WL 3752577.)

https://www.courts.ca.gov/opinions/documents/C081345.DOC

Case Against Those who Benefited from Armenian Genocide Is Dismissed.

From 1915 to 1923, in what is often referred to as the Armenian Genocide, the Ottoman Empire massacred, forcibly expelled, or marched to death 1.5 million of its Armenian citizens, seizing the property of the dead and deported. In 2010, the plaintiffs in these consolidated actions, United States residents descended from victims of the Genocide, sued the Republic of Turkey and two Turkish national banks, seeking compensation for property taken from their ancestors a century ago. To avoid a time bar on claims like these, California adopted a statute in 2006 providing that any limitations period for suits arising out of the Armenian Genocide would not expire until December 31, 2016. (Code Civ. Proc., § 354.45.) However, the Ninth Circuit held that law to be unconstitutional. (Movsesian v. Victoria Versicherung AG (9th Cir. 2012) 670 F.3d 1067.) The federal district court dismissed the complaint. Affirming, the Ninth Circuit agreed the claims are time-barred. (Bakalian v. Central Bank of Republic of Turkey (9th Cir., Aug. 8, 2019) 932 F.3d 1229.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/08/13-55664.pdf

Previously we reported:
Discrimination Against Bankruptcy Lawyers Claimed.

Defendant provides an Internet-based service that allows people to accept electronic payments without opening up a merchant account with any Visa or MasterCard member bank. Defendant’s agreement states: “By creating a Square Account, you . . . confirm that you will not accept payments in connection with the following businesses . . . bankruptcy attorneys or collection agencies in the collection of a debt.” Plaintiff, a bankruptcy attorney, sued defendant alleging a violation of the Unruh Civil Rights Act’s ban on occupational discrimination. (Civ. Code, § 51, subd. (b).) The Ninth Circuit Court of Appeals certified the following question to the California Supreme Court. “Does a plaintiff suffer discriminatory conduct, and thus have statutory standing to bring a claim under the Unruh Act, when the plaintiff visits a business’s website with the intent of using its services, encounters terms and conditions that deny the plaintiff full and equal access to its services, and then departs without entering into an agreement with the service provider? Alternatively, does the plaintiff have to engage in some further interaction with the business and its website before the plaintiff will be deemed to have been denied full and equal treatment by the business?” More later. (White v. Square, Inc. (9th Cir., June 7, 2018) 891 F.3d 1174.)

The latest:

The California Supreme Court responded: “The answer is yes.” California’s high court explained: “In general, a person suffers discrimination under the Act when the person presents himself or herself to a business with an intent to use its services but encounters an exclusionary policy or practice that prevents him or her from using those services. We conclude that this rule applies to online businesses and that visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store.” (White v. Square, Inc. (Cal., Aug. 12, 2019) 7 Cal.5th 1019.)

https://www.courts.ca.gov/opinions/documents/S249248.DOCX

Student Athletes’ Case Against NCAA and PAC-12 Tossed.

Plaintiff played football for the University of Southern California. In a class action, plaintiff alleged the National Collegiate Athletic Association (NCAA) and the PAC-12 acted as the players’ employers by prescribing the terms and conditions under which student athletes perform services, and that the NCAA and PAC-12 failed to pay minimum wages and overtime pay. The federal disctrict court dismissed the complaint. Affirming, the Ninth Circuit held the players were not employees of the NCAA or PAC-12 as a matter of federal law. (Dawson v. National Collegiate Athletic Association (9th Cir., Aug. 12, 2019) 932 F.3d 905.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/12/17-15973.pdf

Tony the Tiger.

A tiger named Tony was being displayed in a cage at a truck stop. Plaintiff, a nonprofit organization dedicated to improving the lives of animals, asked the U.S. Department of Agriculture (USDA) to conduct a welfare check of Tony after plaintiff’s veterinarian reported Tony was suffering from serious health issues. Apparently the USDA conducted the welfare check, but when plaintiff sought the results, the USDA told plaintiff it had to obtain them by requesting documents under the Freedom of Information Act (5 U.S.C. § 552 et seq.; FOIA). Plaintiff pursued a FOIA request on an expedited basis, but the USDA refused to expedite the request. Both the federal district court and the Ninth Circuit concluded that expedited FOIA requests are available for “individuals,” but that Tony was not an individual. While the case was proceeding, the owner of the truck stop euthanized Tony. (Animal Legal Defense Fund v. U.S. Department of Agriculture (9th Cir., Aug. 12, 2019) 2019 WL 4062524.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/12/18-16327.pdf

“If a man watches three football games in a row, he should be declared legally dead,” Erma Bombeck.

Subscribers of DirecTV’s Sunday Tickets filed a class action. This is the situation: If NFL fans happen to live far away from their favorite team—such as Seattle Seahawks fans residing in Los Angeles—they can watch every Seahawks game only if they purchase DirecTV’s NFL Sunday Ticket, a bundled package of all NFL games available exclusively to subscribers of DirecTV’s satellite television service. Plaintiffs contend this arrangement harms NFL fans because it eliminates competition in the market for live telecasts of NFL games. Without this arrangement restricting the televising of NFL games, plaintiffs argue, the individual teams would create multiple telecasts of each game and would compete against one another by distributing telecasts of their games through various cable, satellite, and Internet channels. The federal district court dismissed the class action for failure to state a claim. Reversing, the Ninth Circuit stated: “We conclude that at this preliminary stage, plaintiffs have stated a cause of action for a violation of Sections 1 and 2 of the Sherman Act that survives a motion to dismiss.” (In re National Football League’s Sunday Ticket Antitrust Litigation (9th Cir., Aug. 13, 2019) 933 F.3d 1136.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/13/17-56119%20(2).pdf

No Splitting Wage Claim from PAGA Claim and Sending Wage Claim to Arbitration.

In this wage and hour case, the Court of Appeal said the question was whether a court may split a case under the Private Attorney General Act (Lab. Code § 2698 et seq.; PAGA.) That is, the named plaintiff signed an arbitration agreement and has an individual claim for lost wages, but also claims a penalty under Labor Code § 558. So, may the superior court send the individual claim for lost wages to arbitration and retain the penalty portion of the claim? The Court of Appeal in Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, review granted, concluded that such a claim could not be split. In Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228, another Court of Appeal came out the other way. In the instant case, the Court of Appeal concluded the action may not be split and the employee could not be compelled to arbitration. (Mejia v. Merchants Building Maintenance, LLC (Cal. App. 4th Dist., Div. 1, Aug. 13, 2019) 38 Cal.App.5th 723.)

https://www.courts.ca.gov/opinions/documents/D074620.DOC

Treatment of Children in Border Facilities.

In 1997, the federal district court entered a consent decree (Agreement) in a case filed on behalf of a class of minors detained by U.S. immigration authorities. The Agreement requires immigration facilities to hold minors in their custody “in facilities that are safe and sanitary.” In May 2016, plaintiffs filed a motion to enforce the Agreement, alleging the government continued to violate it by detaining class members in unsafe and unsanitary conditions at Border Patrol stations. After an evidentiary hearing, the federal district court granted the motion. The court found that the government was violating the Agreement’s express requirements to provide adequate access to appropriate food and water and “adequate temperature controls at a reasonable and comfortable range.” The court further found that although the Agreement “makes no mention of the words ‘soap,’ ‘towels,’ ‘showers,’ ‘dry clothing,’ or ‘toothbrushes,’ . . . these hygiene products fall within the rubric of the Agreement’s language requiring ‘safe and sanitary’ conditions.” Appealing from the order, the government argued the court modified the Agreement by adding “that Border Patrol stations provide the most basic human necessities—accommodations that allow for adequate sleep, essential hygiene items, and adequate, clean food and water . . . .” The Ninth Circuit dismissed the appeal, stating the lower court did not modify the Agreement, but only interpreted the Agreement’s requirement that minors be held in “safe and sanitary” conditions. (Flores v. Barr (9th Cir., Aug. 15, 2019) 2019 WL 3820265)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/15/17-56297.pdf

No Inverse Condemnation.

Three dentists sued the City of Oroville for inverse condemnation after raw, untreated sewage backed up into an office building. The dentists contended the city was at fault for maintaining a faulty sewer system, while the city contended the dentists were at fault for failing to install a legally required backwater value, which would have prevented the sewage backup. Finding no liability on the part of the city, the California Supreme Court stated: “To succeed on an inverse condemnation action, a plaintiff must ordinarily show—assuming the public entity made reasonable assumptions about the public improvement in question––that the damage to private property was substantially caused by inherent risks associated with the design, construction, or maintenance of the public improvement. That’s certainly not something the dentists were able to show in this case, where installation of a backwater valve on their premises not only would have prevented or drastically mitigated the risk of damage, according to experts, but was legally required. Under the circumstances, the City is not liable in inverse condemnation, so we reverse the judgment of the Court of Appeal.” (City of Oroville v. Superior Court (Cal., Aug. 15, 2019) 446 P.3d 304.)

https://www.courts.ca.gov/opinions/documents/S243247.DOCX

No Tort of Conversion for Lost Wages.

For a little more than a year, plaintiff worked alongside defendant to launch three start-up ventures, partly in return for a promise of later payment of wages. But after a falling out, plaintiff was fired and the promised compensation never materialized. Plaintiff sued the companies and won, successfully invoking both contract-based and statutory remedies for the nonpayment of wages. He now seeks to hold defendant personally responsible for the unpaid wages on a theory of common law conversion. Plaintiff claims that by failing to pay the wages, the companies converted his personal property to their own use and that defendant is individually liable for the companies’ misconduct. The question before the California Supreme Court was whether such a conversion claim is cognizable. California’s high court concluded it was not, stating: “The conversion tort is not the right fit for the wrong that [plaintiff] alleges, nor is it the right fix for the deficiencies [plaintiff] perceives in the existing system of remedies for wage nonpayment. We affirm the judgment of the Court of Appeal, which reached a similar conclusion.” (Voris v. Lampert (Cal., Aug. 15, 2019) 446 P.3d 779.)

https://www.courts.ca.gov/opinions/documents/S241812.DOCX

“The shocking thing about any stripper gathering . . . money . . . They make the guys on the trading floor on Wall Street look like a bunch of pansies,” Susie Bright.

Exotic dancers at a gentlemen’s club in filed a class action for wage and hour violations under the Fair Labor Standards Act (29 U.S.C. § 203). They alleged their employer failed to pay them any wages at all. The federal district court dismissed the action for lack of subject matter jurisdiction because the dancers did not prove at the outset of the case that they were employees rather than independent contractors. Reversing and remanding for further action in the trial court, the Ninth Circuit found the allegations were not so patently without merit as to justify dismissal for lack of subject matter jurisdiction. (Tijerino v. Stetson Desert Project, LLC (9th Cir., Aug. 16, 2019) 2019 WL 3849570.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/16/18-16013.pdf

“You come to Spring Training, you get your legs ready, your arms loose, your agents ready, your lawyer lined up,” Dave Winfield.

Current and former minor league baseball players brought a class action against baseball teams and managers for violation of the Fair Labor Standards Act (29 U.S.C. § 203; FLSA) for failure to pay them during spring training. Plaintiffs moved to certify, and defendants moved to decertify. The federal district court denied certification to the Arizona and Florida classes because of lack of predominance,  but certified the California class and the FLSA collective. The Ninth Circuit reversed the district court’s partial denial of certification, stating the FSLA is a remedial statute and must be interpreted broadly. (Senne v. Kansas City Royals Baseball Corp. (9th Cir., Aug. 16, 2019) 2019 WL 3849564.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/16/17-16245.pdf

No Adoptive Admission in Failure to Respond to an Accusation in a Text Message.

A criminal defendant was convicted of committing several robberies. The prosecution’s evidence included text message exchanges between the defendant and his mother as follows:

“[McDaniel]: Stop telling lies!!!
“[McDaniel]: That’s why Johnny left yo nasty ass.
“[Mother]: U r the 1 who needs to learn how 2 respect. I am ur mother and ur days r number
“[McDaniel]: Why are you so hateful
“[Mother]: An that is why u will b locked up 4 robberey of the stores in this area
“[Mother]: Why do you feel u hv 2 b so nasty an fowl ur sick”

Reversing defendant’s convictions, the Court of Appeal found the text messages did not show an adoptive admission: “[G]iven the nature of text messaging, the fact that McDaniel did not text his mother back was not sufficient to show that he had adopted his mother’s statement.” (People v. McDaniel (Cal. App. 5th Dist., Aug. 16, 2019) 2019 WL 3852662.)

https://www.courts.ca.gov/opinions/documents/F075749.DOC

But-for, Not Motivating Factor in ADA Claims.

Plaintiff requested the following jury instruction in a wrongful termination case alleging a violation of the Americans with Disabilities Act (42 U.S.C. § 12101; ADA): “Dr. Murray was discharged because Defendants regarded him as disabled, which means that Defendants’ belief that Plaintiff had a disability was a motivating factor in Defendants’ decision to terminate him.” The federal district court declined to give the instruction, and gave this instruction instead: “Dr. Murray was discharged because of his disability.” On appeal, plaintiff argued the court erred because ADA discrimination claims are evaluated under a motivating factor causation standard. Affirming, the Ninth Circuit stated: “We join our sister circuits in holding that ADA discrimination claims under Title I must be evaluated under a but-for causation standard.” (Murray v. Mayo Clinic (9th Cir., Aug. 20, 2019) 2019 WL 3926945.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/20/17-16803.pdf

ERISA Claims Are Arbitrable.

Plaintiff filed a class action under the Employee Retirement Income Security Act (29 U.S.C. § 1001 et seq.; ERISA). Pursuant to an arbitration agreement in the plan, defendant moved to compel plaintiff’s individual claim to arbitration. The federal district court declined to compel arbitration. Reversing, the Ninth Circuit stated: “[B]efore we can reach the parties’ specific contentions, we must first address the threshold question of whether ERISA claims can be subject to mandatory arbitration. In so doing, we must revisit our holding in Amaro v. Continental Can Co., 724 F.2d 747 (9th Cir. 1984), in which we held that ERISA claims were not arbitrable. In light of intervening Supreme Court case law, including American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013), we conclude that our holding in Amaro is no longer good law.” (Dorman v. Charles Schwab Corp. (9th Cir., Aug. 20, 2019) 2019 WL 3926990.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/20/18-15281.pdf

Immunity Under the Communications Decency Act.

After a young man died from a drug overdose, his mother sued website operators who she contends facilitated her son’s introduction to the drug dealer who sold him a lethal dose of illegal drugs. She contends they violated the Communications Decency Act (47 U.S.C. § 230(c); CDA]) in causing the death of her son by permitting drug pushers to sell illegal drugs anonymously through its site. The federal district court dismissed the action, finding the site owners immune under the CDA. Affirming the dismissal, the Ninth Circuit found that plaintiff did not plead sufficient facts to show that defendants colluded with drug dealers, defendants did not owe a duty to plaintiff’s son, and defendants are immune under the CDA. (Dyroff v. Ultimate Software Group, Inc. (9th Cir., Aug. 20, 2019) 2019 WL 3926107.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/20/18-15175.pdf

Morbidly Obese Employee Fired.

Plaintiff was fired and contends the reason was his morbid obesity; he weighed 370 pounds. Finding that obesity is not a disability under the Americans with Disabilities Act (42 U.S.C. § 12101; ADA), the federal district court dismissed the action. Affirming, the Ninth Circuit stated it did not need to take a definitive stand on the question whether morbid obesity itself is an impairment under the ADA because plaintiff did not show that he suffered an adverse employment action “because of” his obesity. (Valtierra v. Medtronic Inc. (9th Cir., Aug. 20, 2019) 2019 WL 3917531.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/20/17-15282.pdf

Dangerous Condition of Public Property Did Not Create a Reasonably Foreseeable Risk.

A motorist recklessly tried to pass a tour bus on State Route 1 near Hearst Castle. He struck a car driven by plaintiff, head-on. Plaintiff was severely injured, and his wife was killed. The jury returned a special verdict that a dangerous condition of public property existed but did not “create a reasonably foreseeable risk that this kind of incident would occur.” Plaintiff claimed the special verdict was fatally inconsistent warranting a new trial. Affirming the judgment in favor of the state, the Court of Appeal stated: “The fair import of the special verdict is that the unsafe condition did not create a reasonably foreseeable risk that a driver would attempt to recklessly pass a bus when it was unsafe to do so.” (Fuller v. Department of Transportation (Cal. App. 2nd Dist., Div. 6, Aug. 20, 2019) 2019 WL 3933563.)

https://www.courts.ca.gov/opinions/documents/B287689.DOC

Civil Rights Case Against Police Officer.

Four teenagers were rapping in an alley before school at 7:30 a.m. They were dancing in a circle. One of them held a plastic replica gun with a bright orange tip. Just as they turned off the music, preparing to go to school, an unmarked police patrol car drove by. Neither officer was in uniform. The officer in the passenger seat jumped out of the car. It is disputed whether the officer identified himself. At the time the officer was running into the alleyway shouting, “gun, gun, gun,” one of the teenagers had started changing his shirt and another was spraying on cologne. The officer shot three times; one of the teenagers was shot in the back. Two of the teens brought a civil rights action. The federal district court denied qualified immunity to the police officer, and that officer appealed. The Ninth Circuit affirmed in part and reversed in part, finding the officer was entitled to immunity for plaintiffs’ Fourteenth Amendment claims, but not for the Fourth Amendment claims. (Nicholson v. City of Los Angeles (9th Cir., Aug. 21, 2019) 2019 WL 3939352.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/21/17-56648%20(2).pdf

Previously we reported:
Attorney Disqualification.

Richie was formerly the president and chief operating officer for cross-complainant. Cross-complainant had no formal in-house counsel, but Richie had a law degree and acted as the primary contact for cross-complainant’s outside counsel on many legal matters. Richie’s employment with cross-complainant ended in February 2016. In 2017, Richie was admitted to the State Bar and launched his own law firm. Richie’s law firm represented some of the persons who filed a lawsuit against cross-complainant. The trial court denied cross-complainant’s motion to disqualify Richie’s law firm from the action. The Court of Appeal reversed, holding that Richie’s law firm could not act as counsel because Richie obtained privileged information relating to the pending litigation when he was cross-complainant’s president and chief operating officer. (O’Gara Coach Company, LLC v. Ra (Cal. App. 2nd Dist., Div. 7, Jan. 7, 2019) 30 Cal.App.5th 1115.)

The latest:

This time around, the issue was whether Richie could represent a former sales advisor to the company for which Richie was formerly the president and chief operating officer in an employment discrimination action against the company. The trial court found that Richie, as the former president and chief operating officer of O’Gara Coach, had significant responsibility in the formulation and implementation of the company’s antidiscrimination and antiharassment policies and it was “more likely than not that in those roles he consulted with outside counsel for O’Gara.” In addition, the trial court ruled it appeared highly probable Richie would be an important percipient witness at trial not only on the issue of the promulgation and enforcement of the policies at issue in the lawsuit but also as to whether the former sales advisor’s complaints were made known to Richie and what actions, if any, Richie took in response to those complaints. The Court of Appeal reversed the order disqualifying Richie because the company failed to present evidence that Richie possessed privileged information materially related to the pending litigation. (Wu v. O’Gara Coach Company, LLC (Cal. App. 2nd Dist., Div. 7) Aug. 21, 2019) 2019 WL 3942920.)

https://www.courts.ca.gov/opinions/documents/B289698.DOC

Registering a Judgment in Federal Court.

Plaintiffs obtained a multi-million dollar judgment against defendants in a federal district court in California. Plaintiffs registered the judgment in Arizona. After more than five years, plaintiffs attempted to renew the registration in Arizona, but a federal district court in Arizona ruled the renewal was untimely. Plaintiffs then registered the original California judgment in the State of Washington and registered the Washington judgment in Arizona. A federal district court in Arizona vacated the registration. The Ninth Circuit reversed, holding the Washington registration created a new judgment that could be registered in another state. On remand, defendant successfully moved for relief from the judgment on grounds the Washington federal district court had no personal jurisdiction over defendant. In the present appeal, the Ninth Circuit reversed again, stating: “In this case we address, as a matter of first impression in our Circuit, whether personal jurisdiction over the judgment debtors in the district of registration is required for such registration of a judgment. We hold that it is not, because neither § 1963 nor due process imposes such a personal jurisdiction requirement.” (Fidelity National Financial, Inc. v. Friedman (9th Cir., Aug. 22, 2019) 2019 U.S. App. LEXIS 25161.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/22/17-15913.pdf

Gender Dysphoria.

Plaintiff is a transgender prisoner in an Idaho state prison. Plaintiff’s sex assigned at birth (male) differs from her gender identity (female), and Plaintiff has been diagnosed with gender dysphoria, a serious medical condition. The parties disputed whether gender confirmation surgery (GCS) was medically necessary to treat plaintiff’s gender dysphoria. Idaho presented two experts who stated the surgery was not medically necessary, one of them explaining he “would like to see [plaintiff] live as a female outside of a correctional setting before receiving GCS, or, at the least, live in a women’s prison first.” However, the state of Idaho houses prisoners according to their genitals. The federal district court determined GCS was medically necessary and ordered the state to provide the surgery. The Ninth Circuit affirmed, stating: “. . . we hold that the responsible prison authorities have been deliberately indifferent to [plaintiff’s] gender dysphoria, in violation of the Eighth Amendment [which prohibits cruel and unusual punishments].” (Edmo v. Corizon, Inc. (9th Cir., Aug. 23, 2019) 2019 U.S. App. LEXIS 25330.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/23/19-35017.pdf

Halloween Tragedy Not a Result of a Dangerous Condition of Public Property.

Plaintiffs are the parents of three girls who were tragically killed on Halloween night in 2014 when they were struck by a speeding motorist while they were crossing the street in a marked crosswalk. The driver fled the scene. He was later arrested and pleaded guilty to felony vehicular manslaughter. Plaintiffs sued the city for a dangerous condition of public property, contending the city had a duty to light its street and that the posted speed limit was too high for nighttime conditions. Plaintiffs claimed a huge tree caused a shadow to be cast over the crosswalk, rendering the girls invisible to any approaching driver. The trial court granted the city’s motion for summary judgment. Affirming, the Court of Appeal stated: “After scrutinizing these facts, we cannot find a ‘dangerous condition of public property’ or any ‘peculiar condition’ that would trigger an obligation by the City to modify its street lighting at the accident scene. Moreover, as the trial court observed in granting the City’s motion for summary judgment, it is undisputed that the driver who hit the girls was exceeding the posted speed limit, and therefore the speed limit was not a proximate cause of these tragic deaths.” (Huerta v. City of Santa Ana (Cal. App. 4th Dist., Div. 3, Aug. 23, 2019) 2019 Cal. App. LEXIS 783.)

https://www.courts.ca.gov/opinions/documents/G056076.DOCX

No Appeal After Expedited Jury Trial.

Plaintiff brought a personal injury action to recover damages arising from a vehicle collision with defendant. Prior to trial, the parties signed a consent agreement to participate in the voluntary expedited jury trial process set forth in Code of Civil Procedure § 630.01 et seq., including a waiver of the right to appeal. The jury awarded economic damages to plaintiff in the amount of $2,450, and the trial court entered judgment accordingly. Plaintiff filed a notice of appeal from the judgment and an order denying her motion for a new trial. The appellate division dismissed the appeal. (Branom v. Diamond (L.A. Sup. Ct. App. Div., Aug. 23, 2019) 2019 WL 4007562.)

https://www.courts.ca.gov/opinions/documents/JAD19-06.DOC

“When narcissists are confronted by people who disparage the legitimacy of their extravagant claims, they tend to react badly,” John Krakauer in “Under the Banner of Heaven.”

Most residents of Colorado City and Hildale City are members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints. Their prophet or leader, Warren Jeffs, promulgated a strict set of rules for church members, such as prohibitions on vacations, toys, attendance at public schools, and displays of affection between husbands and wives. Jeffs excommunicated the city leaders who did not follow his orders. Church leaders determined who would occupy the city government positions such as mayors, city council members, and police officers. Several of the cities’ officials spied on residents who the church considered to be out of conformance with church regulations. The United States brought an action against the cities and their utility providers, alleging a pattern or practice of discrimination against residents who were not church members. The United States alleged the cities functioned as an arm of the church and conspired with church leaders to use the cities’ municipal resources to advance church interests. The complaint stated a claim pursuant to 34 U.S.C. § 12601 for violating the establishment clause of the First Amendment, the Fourth Amendment’s prohibition on unreasonable searches and seizures, and the equal protection clause of the Fourteenth Amendment. The federal district court handed found that the cities violated § 12601 and granted injunctive relief against the cities. Affirming, the Ninth Circuit stated that § 12501 does not require an official municipal policy of violating constitutional rights in order for the United States to prevail. (United States v. Town of Colorado City (9th Cir., Aug. 26, 2019) 2019 U.S. App. LEXIS 25541.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/26/17-16472(3).pdf

Prosecutors’ Duty to Disclose Information to Criminal Defendants.

A prosecutor in a criminal case must disclose to the defense certain evidence that is favorable to the accused. (Brady v. Maryland (1963) 373 U.S. 83.) The so-called Pitchess statutes, however, restrict a prosecutor’s ability to learn of and disclose certain information regarding law enforcement officers. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531; see also Johnson v. Superior Court (2015) 61 Cal.4th 696, 712.) Most notably, Penal Code § 832.7 renders confidential certain personnel records and records of citizens’ complaints, as well as information “obtained from” those records. Some law enforcement agencies have created so-called “Brady lists.” These lists enumerate officers whom the agencies have identified as having potential exculpatory or impeachment information in their personnel files—evidence that may need to be disclosed to the defense under Brady and its progeny. The Association for Los Angeles Deputy Sheriffs obtained a preliminary injunction preventing the Los Angeles County Sheriff’s Department from disclosing the identity of deputies on the department’s Brady list. The injunction included an exception permitting disclosure to prosecutors when a deputy is a potential witness in a pending prosecution. The California Supreme Court asked and answered the following: “ ‘When a law enforcement agency creates an internal Brady list [citation], and a peace officer on that list is a potential witness in a pending criminal prosecution, may the agency disclose to the prosecution (a) the name and identifying number of the officer and (b) that the officer may have relevant exonerating or impeaching material in [that officer’s] confidential personnel file . . . ?’ We conclude that the Pitchess statutes permit such disclosure.” (Association for Los Angeles Deputy Sheriffs v. Superior Court (Cal., Aug. 26, 2019) 2019 Cal. LEXIS 6237.)

https://www.courts.ca.gov/opinions/documents/S243855.DOCX

Previously we reported:
Twenty-First Century Version of Code of Civil Procedure § 128.5 Sanctions.

A self-described watchdog over government and public agencies sued a city and a city attorney. The underlying facts are only important with regard to the court’s consideration of sanctions against plaintiff pursuant to Code of Civil Procedure § 128.5, the sanctions statute that was almost dormant for 20 years until the Legislature breathed life back into it as of January 1, 2015.  One of plaintiff’s arguments in the present case was that it filed its action in 2014, and, therefore, § 128.5 does not apply to it; otherwise, it contended applying it would amount to an improper retroactive application of the statute to past conduct. Ultimately, the trial court denied the city’s request for sanctions under § 128.5, and the city appealed. The Court of Appeal held: (1) The current version of § 128.5 applies to any case pending as of its effective date, January 1, 2015; (2) A party filing a sanctions motion under § 128.5 does not need to comply with § 128.7’s safe harbor waiting period [when § 128.5 went almost dormant on December 31, 1994, § 128.7 came into effect.]; (3) The legal standard in evaluating a request pursuant to § 128.5 is whether the challenged conduct was objectively unreasonable. (San Diegans For Open Government v. City of San Diego (Cal. App. 4th Dist. Div. 1, June 7, 2016) 247 Cal.App.4th 1306.)

The latest:

As of January 1, 2017, yet another version of Code of Civil Procedure § 128.5 went into effect. In this case, a lawyer notified the court she would be ready for trial on a certain date. When the court called the case for trial, the lawyer was in the midst of another trial in another city, a circumstance that was very predictable when she represented her readiness for the instant case because her client in the other case had already unexpectedly decided to testify. The trial court awarded $2,000 in sanctions against the lawyer personally and $1,575 against her client. In both the trial court and the appellate court, the lawyer argued she was personally sanctioned for circumstances that were not under her control. The Court of Appeal affirmed the award against the lawyer personally and reversed the award of sanctions against the client, stating: “We publish this opinion to make explicit that no vestige remains of the holdings in San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306 concerning the requirements of section 128.5. Among other things, San Diegans held that an objective standard applies when determining whether a party’s or an attorney’s conduct is sanctionable under section 128.5, as it does under section 128.7. (Id. at pp. 1314–1317.) As we explain, section 128.5 has since been amended to specifically overrule San Diegans on this point. [¶] The law concerning the kind of conduct sanctionable under sections 128.5 and 128.7 has, thus, largely returned to its pre-San Diegans state—with a more stringent standard requiring subjective bad faith applicable to section 128.5, and a lesser standard, requiring only objective bad faith, applicable to section 128.7. As we further explain, under this pre-San Diegans case law, on which the trial court relied. the conduct of counsel here was sanctionable under section 128.5.” While the appellate court upheld the sanctions against the lawyer for subjective bad faith, it reversed those against the client because there was no indication the client even knew about the representation to the court and the fact that the client appeared for trial, even though his lawyer did not. (In re Marriage of Taeb (Cal. App. 1st Dist., Div. 1, Aug. 26, 2019) 2019 Cal. App. LEXIS 794.)

https://www.courts.ca.gov/opinions/documents/A152178.DOCX

Matters Occurring Prior to Arbitration Agreement Ordered to Arbitration.

Employees of defendant, including plaintiff, were presented with and asked to sign an agreement requiring that each employee agree to submit to final and binding arbitration “[a]ny and all claims . . . relating to any aspect of . . . employment with Employer (pre-hire through post-termination).” About 10 days later, plaintiff filed a complaint against defendant asserting employment-related claims. Two days after that, plaintiff signed an arbitration agreement and returned it to defendant. Defendant filed a motion to compel arbitration of plaintiff’s claims, which plaintiff opposed on the ground the arbitration agreement failed to expressly state that claims that had already accrued, including the claims asserted in plaintiff’s complaint, were subject to arbitration. The trial court denied the motion . Reversing, the Court of Appeal stated: “The parties’ arbitration agreement is clear, explicit, and unequivocal with regard to the claims subject to it and contains no qualifying language limiting its applicability to claims that had yet to accrue. On the contrary, the agreement’s reference to claims relating to ‘pre-hire’ matters expresses an intent to cover all claims, regardless of when they accrued, that are not otherwise expressly excluded by the arbitration agreement.” (Franco v. Greystone Ridge Condominium (Cal. App. 4th Dist., Div. 3, Aug. 14, 2019) 2019 Cal. App. LEXIS 795.)

https://www.courts.ca.gov/opinions/documents/G056559.DOCX

Interlocutory Order Not Appealable.

A husband and wife ran a dental practice together. They divorced and set up separate dental practices. Husband alleges wife interfered with his prospective economic advantage, misappropriated trade secrets, and engaged in unfair competition. The wife moved to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure § 425.16. The trial court denied the motion, concluding the gravamen of the action was not protected conduct under § 425.16 and the commercial speech exemption under § 425.17 applied. Wife brought this appeal. An order granting or denying an anti-SLAPP motion is ordinarily appealable. But when the Legislature passed § 425.17, it expressly made the denial of an anti-SLAPP motion based on commercial speech not appealable, where the speaker who is part of a business makes factual representations to potential customers about the business or a competitor’s business for the purpose of gaining sales. The Court of Appeal dismissed wife’s appeal. (Benton v. Benton (Cal. App. 4th Dist., Div. 2, Aug. 27, 2019) 2019 Cal. App. LEXIS 796.)

https://www.courts.ca.gov/opinions/documents/E068870.DOCX

Mrs. Palsgraf Takes BART.

Plaintiff purchased a train ticket at a train station and then entered the boarding platform. A confusing situation ensued: doors on train cars were opening and closing; partially inaudible and confusing instructions were being broadcast on the loudspeaker; passengers were scurrying to board a train. Plaintiff lost her balance, fell, and was injured. Plaintiff sued the public entity that operated the train for violating its duty of care as a common carrier. (Civ. Code § 2100 et seq.) The trial court sustained defendant’s demurrer without leave to amend.   Affirming, the Court of Appeal stated: “We hold that section 2100 does not apply to minor, commonplace hazards in a train station. Moreover, because the train operator here is a public agency, it is not liable for personal injuries in the absence of a statute providing for liability. (Gov. Code, § 815.) We conclude there is no statutory basis for liability and affirm the trial court’s dismissal of the action.” (Churchman v. Bay Area Rapid Transit District (Cal. App. 1st Dist., Div. 5, Aug. 28, 2019) 2010 Cal.App. LEXIS 810.)

https://www.courts.ca.gov/opinions/documents/A151698.PDF

Action for Reappointment of the Public Guardian.

In this conservatorship action, a judgment in favor of the Public Guardian was entered following jury trial. The following instruction was given to the jury:

“The Office of the Public Guardian claims that [K.P.] is gravely disabled due to a mental disorder and therefore should be placed in a conservatorship. In a conservatorship, a conservator is appointed to oversee, under the direction of the court, the care of persons who are gravely disabled due to a mental disorder. To succeed on this claim, the Office of the Public Guardian must prove beyond a reasonable doubt all of the following: [¶]1. That [K.P.] has a mental disorder; and [¶] 2. That [K.P.] is gravely disabled as a result of the mental disorder.” On appeal, the petitioner contended the Public Guardian also must prove a third element, that the individual “is unwilling or unable voluntarily to accept meaningful treatment.”

Affirming the judgment, the Court of Appeal stated: “[Welfare and Institutions Code] Section 5352, which allows a professional to initiate conservatorship proceedings for a patient that is unwilling to accept treatment, does not add an additional requirement, to be proved beyond a reasonable doubt, to establish a conservatorship. (Conservatorship of K.P. (Cal. App. 2nd Dist., Div. 2, Aug. 28, 2019) 2019 Cal.App. LEXIS 801.)

https://www.courts.ca.gov/opinions/documents/B291510.PDF

No Attorney Fees After Voluntary Dismissal.

In a contract action, the trial court declared the defendant to be the prevailing party and awarded him attorney fees. During argument at the Court of Appeal, the appellate justices questioned defendant about whether he waived his right to appeal by accepting payment on the judgment and executing an acknowledgment of satisfaction of the judgment. Thereafter, defendant voluntarily dismissed the appeal. Plaintiff then moved for an award of attorney fees incurred on appeal, which the trial court granted. Back into the Court of Appeal, defendant contended the trial court erred in awarding plaintiff attorney fees when defendant was the prevailing party in the action. Reversing, the Court of Appeal stated: Defendant is the only prevailing party under the note, and “Civil Code section 1717, subdivision (b)(2), provides there ‘shall be no prevailing party’ for purposes of contractual attorney fees where ‘an action has been voluntarily dismissed . . . .’” (De La Carriere v. Greene (Cal. App. 2nd Dist., Div. 8, Aug. 28, 2019) 2019 Cal.App. LEXIS 802.)

https://www.courts.ca.gov/opinions/documents/B285793.PDF

Arbitration Agreement Signed by Family Member of Patient Unenforceable.

The daughter of a patient in a skilled nursing facility signed an undated arbitration agreement, but the patient did not sign it. At some point, the patient was transferred to an acute care hospital with a diagnosis of stage IV decubitus ulcers to her back and right foot as well as wet gangrene of the right lower extremity and sepsis. The patient died. The daughter sued defendants for elder abuse and wrongful death. The trial court denied the facility’s petition to compel arbitration. Affirming, the Court of Appeal agreed with the trial court that the facility failed to prove the daughter had authority to sign the agreement on decedent’s behalf and that the arbitration agreement was unenforceable against the daughter individually on grounds of unconscionability. (Lopez v. Bartlett Care Center, LLC (Cal. App. 4th Dist., Div. 3, Aug. 28, 2019) 2019 Cal.App. LEXIS 808.)

https://www.courts.ca.gov/opinions/documents/G056249.PDF

Homeowner Who Obtained Injunctive Relief to Stop Sale of Her Home Was Awarded Attorney Fees.

The trial court granted plaintiff’s ex parte application for a temporary restraining order to prevent a trustee’s sale of her home. Thereafter, the trial court awarded plaintiff $4,260 in attorney fees and costs. Noting that Civil Code § 2923.12, part of the California Homeowner Bill of Rights,  gives trial courts the discretion to award reasonable attorney fees and costs to the “prevailing borrower,” the Court of Appeal affirmed. (Bustos v. Wells Fargo Bank, N.A. (Cal. App. 3rd Dist., Aug. 28, 2019) 2019 Cal.App. LEXIS 806.)

https://www.courts.ca.gov/opinions/documents/C085657.PDF

Previously we reported:
Foiled Again by the FAA!

Labor Code sections 98 to 98.8 provide an administrative statutory scheme for an employee to seek relief from the Labor Commissioner for a wage dispute. This method of dispute resolution is called a Berman hearing. In Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659, the California Supreme Court held it was contrary to public policy and unconscionable for an employer to require an employee to waive the right to a Berman hearing as a condition of employment, and that such hearings are not preempted by the Federal Arbitration Act (FAA). The U.S. Supreme Court vacated the judgment and remanded the case for the California Supreme Court to consider in light of AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740. After reconsidering the matter in light of Concepcion, the California Supreme Court concluded, “because compelling the parties to undergo a Berman hearing would impose significant delays in the commencement of arbitration, the approach we took in Sonic I is inconsistent with the FAA. Accordingly, we now hold, contrary to Sonic I, that the FAA preempts our state-law rule categorically prohibiting waiver of a Berman hearing in a predispute arbitration agreement imposed on an employee as a condition of employment. [¶] At the same time, we conclude that state courts may continue to enforce unconscionability rules that do not “interfere [] with fundamental attributes of arbitration. [Citation] Although a court may not refuse to enforce an arbitration agreement imposed on an employee as a condition of employment simply because it requires the employee to bypass a Berman hearing, such an agreement may be unconscionable if it is otherwise unreasonably one-sided in favor of the employer.” (Sonic-Calabasas A, INC. v. Moreno (Cal., Oct. 17, 2013) 57 Cal.4th 1109.)

We also previously reported:
“Do I Believe in Arbitration? I Do. But Not in Arbitration Between the Lion and the Lamb, in Which the Lamb is in the Morning Found Inside the Lion,” Samuel Gompers.

In a claim for unpaid wages, the employer petitioned for arbitration. The trial court denied the petition to compel, relying upon the holding in Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 (Sonic II), which held an arbitration agreement that waives the various advantageous provisions of the Labor Code governing the litigation of a wage claim is substantively unconscionable if it fails to provide the employee with an affordable and accessible alternative forum. The Court of Appeal concluded the degree of procedural unconscionability in the instant arbitration agreement “was extraordinarily high.” However, the appellate court found no substantive unconscionability, and stated: “California arbitration law has consistently required both procedural and substantive unconscionability before an arbitration provision will be refused enforcement.” The appellate court reversed, ordering the trial court to grant the petition to compel arbitration. (Oto, L.L.C. v. Kho (Cal. App. 1st Dist., Div. 1, Aug. 21, 2017) 14 Cal.App.5th 691.)

The latest:

Reversing the judgment of the Court of Appeal, the California Supreme Court stated: “We originally granted review in this case to decide whether an arbitral scheme resembling civil litigation can constitute a sufficiently accessible and affordable process. Because the facts here involve an unusually high degree of procedural unconscionability, however, a definitive resolution of that specific question is unnecessary. Even if a litigation-like arbitration procedure may be an acceptable substitute for the Berman process in other circumstances, an employee may not be coerced or misled into accepting this trade. Considering the oppressive circumstances present here, we conclude the agreement was unconscionable, rendering it unenforceable.” Regarding substantive unconscionability, the court stated: “The substantive fairness of this particular agreement must be considered in terms of what Kho gave up and what he received in return. By signing the agreement, Kho surrendered the full panoply of Berman procedures and assistance we have described. What he got in return was access to a formal and highly structured arbitration process that closely resembled civil litigation if he could figure out how to avail himself of its benefits and avoid its pitfalls. Considering the unusually coercive setting in which this bargain was entered, we conclude it was sufficiently onesided as to render the agreement unenforceable.” (OTO, L.L.C. v. KHO (Cal., Aug. 29, 2019 (2019 Cal. LEXIS 6608).)

https://www.courts.ca.gov/opinions/documents/S244630.PDF

Previously we reported:
“In the Case of News, We Should Always Wait For the Sacrament of Confirmation,” Voltaire.

Plaintiff is a television reporter who was fired by a network. He brought an action for race and age discrimination. The network filed a special motion to strike pursuant to Code of Civil Procedure § 425.16. As part of its evidentiary showing, defendant submitted a copy of a newspaper article and a piece submitted for broadcast by plaintiff. There were three similarities between the newspaper article and the proposed broadcast piece. The trial court granted the special motion to strike. Reversing, the Court of Appeal stated: “This is a private employment discrimination and retaliation case, not an action designed to prevent defendants from exercising their First Amendment rights.” A dissenting justice stated: “I would hold that a news organization’s employment decisions concerning a person, like [plaintiff], who has an undisputedly central role on the content of the news concerns an act in furtherance of the organization’s First Amendment rights and made in connection with issues of public interest.”(Wilson v. Cable News Network, Inc. (Cal. App. 2nd Dist., Div. 1, Dec. 13, 2016) 6 Cal.App.5th 822.)

We also previously reported:

The California Supreme Court affirmed in part and reversed in part. Reversing the Court of Appeal, the court stated: “Some courts of appeal, including the court in this case, have concluded the anti-SLAPP statute cannot be used to screen claims alleging discriminatory or retaliatory employment actions. We hold otherwise. The statute contains no exception for discrimination or retaliation claims, and in some cases the actions a plaintiff alleges in support of his or her claim may qualify as protected speech or petitioning activity under section 425.16.” Affirming the Court of Appeal in part, the Supreme Court stated: “The second question concerns the application of the anti-SLAPP statute to the journalist’s claim that defendant defamed him by privately discussing the alleged reasons for his termination with potential employers and others. We conclude that this claim need not be screened for merit because these privately communicated remarks were not made in connection with any issue of public significance, as the statute requires.” (Wilson v. Cable News Network, Inc. (Cal., July 22, 2019) 7 Cal.5th 871.)

The latest:

Plaintiff was an investigator employed by defendant California State Lottery. He sued defendant, alleging retaliation in violation of the California Whistleblower Protection Act (Gov. Code, § 8547.8, subd. (c).) He alleged defendant engaged in a pretextual investigation, ultimately forcing him to retire, after he filed a whistleblower complaint with the California State Auditor. Defendant filed an anti-SLAPP motion to strike the complaint (Code Civ. Proc., § 425.16), contending that the complaint arose from protected activity, namely, defendant’s investigation of possible misconduct by plaintiff. The trial court denied the motion, finding that the complaint arose “from non-protected retaliation, not protected investigations.”  On appeal, the California Supreme Court issued its opinion in Wilson v. Cable News Network (2019) 7 Cal.5th 871; following that opinion, the Court of Appeal concluded that plaintiff’s complaint arose from protected activity. Then the appellate court here noted that the trial court did not consider whether plaintiff had established a probability of prevailing on the merits of his claim. But the appellate court concluded that plaintiff made the necessary showing he could prevail on the merits and affirmed the trial court’s order. (Jeffra v. California State Lottery (Cal. App. 2nd Dist., Div. 8, Aug. 29, 2019) 2019 Cal.App. LEXIS 823.)

https://www.courts.ca.gov/opinions/documents/B292775.PDF

Mechanic’s Lien Recorded Prematurely.

Defendant contracted with a general contractor to build a commercial building. The general contractor, in turn, contracted with plaintiff to frame the building. Plaintiff never received full payment and recorded a mechanic’s lien. Because of a problem with its work, plaintiff returned to the site and repaired the problem areas. Plaintiff filed the action to foreclose its mechanic’s lien. Defendant filed a cross-complaint, alleging the lien was filed prematurely, before plaintiff ceased to provide work. The trial court granted summary judgment in favor of defendant. Affirming, the Court of Appeal stated: “The evidence showed, beyond a triable issue of fact, that [plaintiff] had not yet ‘cease[d] . . . work’ when it recorded its mechanic’s lien claim.” (Precision Framing Systems Inc. v. Luzuriaga (Cal. App. 4th Dist., Div. 2, Aug. 29, 2019) 2019 Cal.App. LEXIS 822.)

https://www.courts.ca.gov/opinions/documents/E069158.PDF

Suit Against County Social Services Agency May Proceed.

Defendant and his children filed a civil rights action against a county for its handling of a child welfare investigation matter. The federal distric court dismissed the action as insufficiently pled or barred by qualified immunity. The Ninth Circuit affirmed in part and reversed in part. The appeals court concluded that plaintiffs pled a viable First Amendment retaliation claim for which defendants were not entitled to qualified immunity; a social worker allegedly coerced the mother to file an ex parte custody application to retaliate against the father for his criticism of the social worker and the agency. (Capp v. County of San Diego (9th Cir., Aug. 30, 2019) 2019 U.S. App. LEXIS 26407.)

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/30/18-55119.pdf

Discovery Rule Applies in Medical Battery Case.

In a medical battery action, the trial court dismissed the case as time barred. Plaintiff contends the applicable statute of limitations is Code of Civil Procedure § 335.1, and defendants contend it is Code of Civil Procedure § 340.5, the medical negligence statute of limitations. Reversing, the Court of Appeal stated that “the trial court erred to the extent it concluded that the discovery rule is inapplicable to medical battery claims as a matter of law.” (Daley v. The Regents of the University of California (Cal. App. 1st Dist., Div. 5, Aug. 30, 2019) 2019 Cal.App. LEXIS 829.)

https://www.courts.ca.gov/opinions/documents/A153501.PDF

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