Litigation Section News :
Eileen C. Moore, Associate Justice
California Court of Appeal, Fourth District
Mark A. Mellor, Esq.
Table of Contents of This Issue
Pre-Class Certification Discovery To Seek Out A Plaintiff.
The complaint alleges a drug store chain has a corporate policy of automatically terminating employees who do not work any hours for 45 consecutive days, and that the policy discriminates against qualified individuals with disabilities in violation of the Fair Employment and Housing Act [FEHA; Government Code section 12900 et seq.]. But the named plaintiff is not disabled and was not terminated, and the trial court sustained the employers’ demurrer for lack of standing, giving 90 days leave to amend. The trial court also granted plaintiff’s motion to compel discovery of the names and contact information of current and former employees. The employers filed a petition for writ of mandate challenging the trial court’s order. The Court of Appeal issued an alternative writ of mandate, finding the trial court abused its discretion in allowing precertification discovery, and stating: “There is no evidence in the record that [the named plaintiff] had any reason to believe she was a victim of the alleged termination policy when she filed suit. . .the potential for abuse of the class procedure is self-evident where the only named plaintiff has never been a member of the class.” (CVS Pharmacy, Inc. v. Sup. Ct. (Charlene Deluca) (Cal. App. Third Dist.; September 15, 2015) (Ord. Pub. October 15, 2015) 241 Cal.App.4th 300 [193 Cal.Rptr.3d 574].)
Equal Justice Under Law As Long As You Pay For It.
Plaintiff sued for negligent medical treatment received while he was incarcerated in state prison. He alleged he suffered grave injuries after being administered a drug in contraindication of how the drug is supposed to be used. Ten days prior to trial, the trial court informed the parties “the court no longer provides a court reporter for civil trials, and the parties have to provide their own reporters for trial.” Thereafter the jury trial was not reported, and the trial court granted defendant’s motion for nonsuit. On appeal, the Court of Appeal held plaintiff could not demonstrate error because the record does not contain a reporter’s transcript, stating: “This court is fully aware that [plaintiff’s] incarceration and his financial circumstances have made it difficult for him to pursue his claims in court. This case aptly demonstrates that civil justice is not free.” (Jameson v. Desta (Cal. App. Fourth Dist., Div. 1; October 15, 2015)(Ord. Pub. October 20, 2015) 241 Cal.App.4th 491.)
Court Abused Its Discretion In Not Renewing Restraining Order.
After a series of violent incidents, the court issued a restraining order to protect petitioner and her family. A few years later, petitioner asked the court to renew the restraining order after she spotted a vehicle outside her home, although petitioner did not know who was driving it. The vehicle was similar to the one the restrained man drives. The trial court declined to renew the restraining order because of lack of evidence. The Court of Appeal reversed, stating: “In sum, given the facts underlying the initial restraining order and the lack of changed circumstances, we conclude the trial court abused its discretion in denying the request to renew the order.” (Cueto v. Dozier (Cal. App. First Dist., Div. 2; October 20, 2015) 241 Cal.App.4th 550 [193 Cal.Rptr.3d 663].)
Previously we reported:
No Wrongful Termination When Contract Not Renewed.
Actress brought suit for wrongful termination after her contract for a sixth season of a television show was not renewed. The trial court denied defendant’s motion for a directed verdict, and defendant sought extraordinary relief. The Court of Appeal granted the petition, stating: “A cause of action for wrongful termination in violation of public policy does not lie if an employer decides simply not to exercise an option to renew a contract.” (Touchstone Television Productions v. Sup.Ct. (Nicollette Sheridan) (2012) 208 Cal.App.4th 676 [145 Cal.Rptr.3d 766].)
Battery Action Of Actress Against Producer May Proceed.
Actress sued production company under Labor Code section 6310, alleging she was fired in retaliation for her complaint about a battery allegedly committed on her by the creator of a television series in which the actress had a part. The trial court sustained the production company’s demurrer to the actress’s complaint on the basis she failed to exhaust her administrative remedies by filing a claim with the Labor Commissioner as required by Labor Code sections 98.7 and 6312. The Court of Appeal concluded she was not required to file such a claim, and reversed and remanded the matter to the trial court (Sheridan v. Touchstone Television Productions, LLC (Cal. App. Second Dist., Div. 4; October 20, 2015) 241 Cal.App.4th 508 [193 Cal.Rptr.3d 811].)
Previously we reported:
Intellectual Property ... The Devil's In The “Related Search” Details.
Plaintiff is the manufacturer of high-end military style watches, known as MTM Special Ops watches. Defendant, retailer Amazon.com, does not sell these watches, but when a potential buyer inserts “MTM Special Ops” onto its website, a message will direct the person to related searches of “MTM special ops watch,” and show images of watches manufactured by plaintiff’s competitors. Plaintiff claims Amazon infringes its trademark because of the manner in which it responds to a shopper’s search request for trademarked goods. The trial court judge granted summary judgment in favor of Amazon, finding its use of plaintiff’s trademark created no likelihood of confusion as a matter of law. The Ninth Circuit reversed: “[W]e think a jury could find that Amazon has created a likelihood of confusion.” (Multi Time Mach., Inc. v. Amazon.com, Inc. (Ninth Cir.; July 6, 2015) 792 F.3d 1070.)
Opinion Withdrawn And New Opinion Filed In Intellectual Property Case.
After Amazon.com petitioned for a hearing en banc, the Ninth Circuit panel withdrew its July 2015 opinion reversing grant of summary judgment and issued a new opinion, rendering the en banc petition moot. This time around, the panel affirmed grant of summary judgment in favor of Amazon.com, stating: “The core element of trademark infringement is whether the defendant’s conduct is likely to confuse customers about the source of its products [citation]. Because Amazon’s search results page clearly labels the name and manufacturer of each product offered for sale and even includes photographs of the items, no reasonably prudent consumer accustomed to shopping online would likely be confused as to the source of the products.” (Multi Time Mach., Inc. v. Amazon.com, Inc.(9th Cir. Cal. July 6, 2015) (Subst. Opinion; October 21, 2015.) [116 U.S.P.Q.2D (BNA) 1583].)
Attorney Fees In Small Claims Appeal.
The Class Action Fairness Act [CAFA; 28 U.S.C. § 1332(d); Pub. L. No. 109-2, 119 Stat.4 (2005)] authorizes the removal to federal court of “mass actions,” in which “monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.” Here, plaintiffs filed five separate tort cases in California courts, each with fewer than 100 plaintiffs, alleging they suffered pancreatic cancer due to their use of drugs developed by defendant drug company. The drug company removed four of the five cases to federal court based upon conventional diversity jurisdiction, but the federal trial court granted plaintiffs’ motion to remand back to state court. Defendant thereafter removed all five cases based on CAFA, and plaintiffs again moved for remand, but this time the trial court denied their motions to remand back to state court. The Ninth Circuit reversed, instructing the trial court to remand the matters, stating that despite statements from some of the plaintiffs that they anticipated the actions would be tried together, “in none of the five cases did plaintiffs propose that the claims of one hundred or more persons be tried jointly.” (Briggs v. Merck Sharp & Dohme (Ninth Cir.; August 6, 2015) 796 F.3d 1038.)
OMG ... A Subway In 90210!!
To reach a subway station, a planned subway will travel under Beverly Hills High School. Both the City of Beverly Hills and the Beverly Hills Unified School District objected to the placement of a subway tunnel under the high school or any other properties located in Beverly Hills. Their objection was based on the environmental impact of the project. Both the trial court and the appellate court found the environmental studies already completed provide substantial evidence all statutory requirements have been met. (Beverly Hills Unified School Dist. v. Los Angeles County Metropolitan Transportation Authority (Cal. App. Second Dist., Div. 4; October 22, 2015) (As Mod. November 2, 2015) 241 Cal.App.4th 627 [193 Cal.Rptr.3d 846].)
Court Denied Petition To Compel Arbitration In Employment Case.
Plaintiff and his employer entered into an agreement that all disputes would be resolved by arbitration and that class actions were prohibited. After he was terminated, plaintiff filed a class action alleging various Labor Code violations and unfair business practices. Finding the prohibition against class actions in the agreement to be improper in the test set forth in Gentry v. Sup. Ct. (2007) 42 Cal.4th 443 [64 Cal.Rptr.3d 773, 165 P.3d 556], the trial court denied defendant's petition to compel arbitration. In affirming, the Court of Appeal stated that in light of the holding in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 [173 Cal.Rptr.3d 289, 327 P.3d 129], the Gentry rule against employment class waivers was preempted by the Federal Arbitration Act [FAA], but that “this matter is not subject to the FAA, however, and Gentry’s holding has not been overturned under California law in situations where the FAA does not apply.” (Garrido v. Air Liquide Industrial U.S. LP (Cal. App. Second Dist., Div. 2; October 26, 2015) 241 Cal.App.4th 833.)
Nonsuit In Underlying Case Paves Some Of The Way Toward A Malicious Prosecution Action.
In the underlying breach of contract case, the court granted nonsuit in favor of defendants. The underlying defendants then brought an action against the underlying plaintiffs and their lawyer for malicious prosecution, to which the present defendant, who was the underlying plaintiff, brought a special motion to strike under the anti-SLAPP statute [Code of Civil Procedure section 425.16]. On an appeal brought by the present plaintiff after the trial court denied his motion to strike, the Court of Appeal stated: “We hold that unless a trial court otherwise specifies, a grant of nonsuit in the underlying case is a ‘legal termination favorable to the plaintiff’ for purposes of a subsequent malicious prosecution action.” (Nunez v. Pennisi (Cal. App. Sixth Dist.; October 27, 2015) 241 Cal.App.4th 861 [193 Cal.Rptr.3d 912].)
"The Man" Holds All The Cards.
Plaintiff was arrested on a warrant for another man who had a similar name. Plaintiff tried to convince everyone involved they arrested the wrong man, pointing out his driver’s license, social security number, booking photo and fingerprints were all different from the man they wanted. Nonetheless, plaintiff was incarcerated for nine days, and was sodomized by another inmate during those nine days. Upon his release, plaintiff sued many in authority, including the deputy district attorney who he alleges failed to determine his true identity and tried to block his release. The trial court sustained the deputy district attorney’s demurrer, and the Court of Appeal affirmed, stating: “We hold that [plaintiff] adequately alleged [the deputy D.A.] was liable for false imprisonment; we will also hold that statutory prosecutorial immunity [Government Code section 821.6] did not apply to the false imprisonment claim. However, the demurrer had to be sustained based on common-law prosecutorial immunity.” (Bocanegra v. Jakubowski (Cal. App. Fourth Dist., Div. 2; October 27, 2015) 241 Cal.App.4th 848 [194 Cal.Rptr.3d 327].)
Failure to Launch.
A man's child was emancipated when he turned 19 years old. The son was diagnosed with attention deficit hyperactivity disorder, psychotic disorder, oppositional defiance disorder and cannabis abuse. A family court judge issued an adult child support order pursuant to Family Code section 3910(a) which provides: “The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.” Although the Court of Appeal found it was error for the trial court to order the payments made to the mother, the appellate court affirmed the order to the father to support his adult son. (In re Marriage of Drake (Cal. App. Fourth Dist., Div. 3; October 9, 2015) (As mod. October 27, 2015) 241 Cal.App.4th 934 [194 Cal.Rptr.3d 252].)
In this case, the 24-year-old son has Tourette’s syndrome and attention deficit hyperactivity disorder, which make it difficult for him to focus on a task. The evidence on his employability, however, is sparse. The trial court found the “child” lacks sufficient means, and even if he could obtain minimum wage work he could not reach his parents’ standard of living. The court concluded he is an adult disabled child, and ordered the father to pay child support. The appellate court reversed and remanded, ordering the lower court to “determine if Robert is incapacitated from earning a living and without sufficient means within the meaning of [Family Code] section 3910.” (In re Marriage of Cecilia & David W. (Cal. App. Fourth Dist., Div. 1; November 3, 2015) 241 Cal.App.4th 1277.)
Default Judgment Void & Statement Of Damages Rejected In Non-P.I. Default.
After a business relationship went south, plaintiff filed a complaint for damages in 2004. The prayer was for general and special damages according to proof. Default was entered in 2005. A statement of damages alleging damages for over $2 million was filed and served, and at the prove-up hearing, the trial court awarded almost that much. In 2013, defendant moved to vacate the default judgment the court had entered seven years earlier, which the trial court granted in 2014. In affirming, the Court of Appeal stated: “We are unpersuaded by plaintiff’s contention the he met the requirements of Code of Civil Procedure section 580 by serving defendant with a statement of damages under section 425.11 or 425.115, when the underlying claims did not involve personal injury or wrongful death, and the default judgment was for compensatory damages only. We also reject plaintiff’s argument that the default judgment is merely voidable, rather than void.” (Dhawan v. Biring (Cal. App. Second Dist., Div. 5; October 28, 2015) 241 Cal.App.4th 963.)
Personal Email Account Used For Public Business ... Why Does That Sound Familiar?
The California Public Records Act [Government Code section 6250 et seq.] provides that "a party" may file a petition for the issuance of an extraordinary writ to challenge an order of the trial court either directing or refusing disclosure under the Act. A group which advocates for open government successfully moved for the trial court to order disclosure of emails from the personal account of a city attorney pertaining to official business over a five year period. The court order was made despite the fact the trial judge did not view the documents in camera. A nonparty, an association of 473 California cities and their public officials, sought extraordinary relief because the trial court’s order of disclosure might have an impact on cities statewide. The open government group argued the association of cities and public officials have no standing since their group is not a party in the underlying action. The Court of Appeal ruled the term "a party" as used in the Public Records Act is not limited to an actual party in the action, and further ordered the trial court to view the documents in camera. (League of California Cities v. Sup. Ct. (San Diegans For Open Government) (Cal. App. Fourth Dist., Div. 1; October 28, 2015) 241 Cal.App.4th 976.)
Proving And Defending Against The Cost Of Health Care.
In a personal injury case, a jury found defendant negligent and awarded $261,713.71 for past medical expenses. Plaintiff had no medical insurance, and her medical providers rendered service to her on a lien basis. However, a third party purchased the lien for a discounted amount, although plaintiff remained liable for the total amount. Under Evidence Code section 352, the trial court denied defendant’s motion to admit evidence of the discounted amount the third party paid for the lien. The Court of Appeal affirmed, stating that “because defendant proffered no evidence to show that [the discounted purchase price for the lien] represented the reasonable value of plaintiff’s treatment, the probative value of that evidence was substantially outweighed by the probability that it would create a substantial danger of undue prejudice as well as a danger of confusing and misleading the jury.” (Uspenskaya v. Meline (Cal. App. Third Dist.; October 28, 2015) 241 Cal.App.4th 996.)
Report Of Privately Retained Expert No Good In Work Comp Case.
In a Workers' Compensation action, the injured worker hired her own psychological expert at her own expense, but the Workers’ Compensation Board found the report of the doctor was inadmissible. The Court of Appeal affirmed, stating that Labor Code section 4064, subdivision (d), provides “All comprehensive medical evaluations obtained by any party shall be admissible in any proceeding before the appeals board except as provided in Section . . . . 4061. . . We conclude that the admission of the medical evaluation petitioner obtained is barred by section 4061, subdivision (i).” (Batten v. Workers' Comp. Appeals Bd. (Cal. App. Second Dist., Div. 6; October 28, 2015) 241 Cal.App.4th 1009.)
A Homeowner's Nightmare.
Plaintiff was employed by a painting contractor which contracted with homeowners to paint the interior of their home. An hour into the job, plaintiff was injured when he fell 12-15 feet from a ladder provided by the contractor. It turns out that the painting contractor had informed the State he had no employees and was exempted from the requirement of having workers' compensation coverage. Because the contractor had no workers' compensation coverage, the contractor's license was immediately and automatically suspended. Plaintiff thereupon sued the homeowners for negligence and premises liability based on allegations his fellow painters were negligent. The trial court granted the summary judgment motion of the homeowners. Without having to deal with the issue of whether or not the homeowners were potentially liable, the Court of Appeal assumed they were, but affirmed nonetheless, noting that plaintiff testified in his deposition that the ladder from which he fell didn't appear to have anything wrong with it, and that he did not know why he fell. The appellate court stated: "There is no evidence showing that anyone, whether the [homeowners] or [plaintiff's] fellow painters, did anything or failed to do anything that caused [plaintiff] to fall off the ladder. No evidence suggests the existence of any hazardous condition at the [homeowner's] residence, much less one that had any causal connection to the fall. In light of the absence of a triable issue of material fact as to either of [plaintiff's] claims, the trial court did not err by granting the [homeowners'] motion for summary judgment." (Vebr v. Culp (Cal. App. Fourth Dist., Div. 3; October 28, 2015) 241 Cal.App.4th 1044 [80 Cal. Comp. Cases 1311].)
Defendant Did Not Demonstrate There Was No Material Issue Of Fact, So Summary Judgment Reversed.
Two plaintiffs in coordinated actions each worked as a mechanic for several decades at various facilities, and each degreased automotive parts with a process involving a solvent in a drum and the regular addition of mineral spirits to the drum when the grease built up. Defendant is the distributor of the mineral spirits, and plaintiffs allege the mineral spirits contain benzene, a known carcinogen. Each of the plaintiffs was diagnosed with acute myelogenous leukemia allegedly caused by exposure to the solvent. Defendant brought a motion for summary judgment based on the raw material or component parts doctrine which shields a supplier from liability “caused by the furnished product into which the component has been incorporated unless the component itself was defective and caused harm,” citing O'Neil v. Crane Co. (2012) 53 Cal.4th 335 [135 Cal.Rptr.3d 288, 266 P.3d 987]. The trial court granted the motion, and the Court of Appeal reversed because defendant did not make a showing its product is not inherently dangerous. (Brady v. Calsol, Inc. (Cal. App. Second Dist., Div. 8; October 31, 2015) 241 Cal.App.4th 1212 [194 Cal.Rptr.3d 243].)
Unusual Case All The Way Around.
Joseph H., age 10, woke up early one morning and shot his father in the head as he slept on the sofa. Joseph was a difficult child. From the time he was three years old, his paternal grandmother could not babysit him because she could not control his outbursts. He suffered from Attention Deficit Hyperactivity Disorder (ADHD) resulting in trouble at school due to his inability to sit still; he also engaged in impulsive and violent behavior towards both children and teachers, which included hitting, throwing tantrums, kicking, biting, scratching, stabbing with pencils or other sharp objects, and hitting with objects, as well as running out of class. Joseph had an IEP (Individualized Education Program) for a learning disability. For his part, Joseph's father Jeff had an unstable work history and was unemployed for the three years leading up to his death, although he had worked for a time as a plumber. He was involved with a Neo-Nazi group and was addicted to Percocet and methamphetamine. Jeff was frequently violent towards both his wife and Joseph. He was worse when he was drunk or high; on those occasions, he would just lose control, and start beating on Joseph. Sometimes Jeff’s abuse of Joseph was such that his wife had to intervene. A few days before the shooting, Jeff became violent with his wife, throwing a glass cup at her. Jeff’s wife heard a loud noise one night and went downstairs. Joseph told her, “I shot dad.” She called 911.
When the police came, Joseph volunteered he shot his dad in the ear. At the police station, Joseph was interviewed by a detective, who first asked questions to determine if he understood the difference between right and wrong, before admonishing Joseph of his Miranda rights. A videotape of the interview was played in open court. In it, Joseph admitted shooting his father and explained the circumstances much as he had done in the patrol car. Specifically, Joseph described how his father came home, the family decided to have a movie night, then going to bed where he woke up after a little while and "started thinking that I should end the son versus father thing." After a contested hearing, the juvenile court found that the minor understood the wrongfulness of his acts despite the statutory presumption of incapacity (Penal Code section 26 states "All persons are capable of committing crimes except those belonging to the following classes: One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness."), had committed an act which would have been second-degree murder if committed by an adult, and had discharged a firearm within the meaning of section 12022.53, subdivision (d). The minor was committed to the Department of Juvenile Justice and appealed.
The Court of Appeal found against the minor on his argument the juvenile court considered his statements in violation of his rights under Miranda v. Ariz. (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]. Joseph sought review by the California Supreme Court. In a 4 to 3 decision, the California Supreme Court denied review. The three justices who were of the opinion review should be granted are Liu, Cuellar, and Kreger. Justice Liu, joined by Justice Cuellar, took the unusual step of writing a lengthy dissent to the denial of the petition for review, discussing such matters as having a parent or guardian present when a child is questioned and considering a child’s age, experience, background and intelligence before admitting the child’s incriminating statements. (In re Joseph H. (Cal. App. Fourth Dist., Div. 2; June 8, 2015) (Rev. Den. November 2, 2015) 237 Cal.App.4th 517 [188 Cal.Rptr.3d 171].)
Suicide by Cop?
When police with an arrest warrant informed a man he was under arrest, the man sped away, leading police on an 85 to 110 mile-per-hour chase. Twice the man telephoned the police dispatcher to demand the police stop chasing him, telling the dispatcher he was armed and would shoot. Other officers set up spikes at places they thought the man’s car would reach. However, one officer devised a plan to shoot at the man’s car to force the car to stop. Before the man reached the spikes, the officer shot at the car, but actually shot the man instead, with four bullets hitting his upper body. The man’s family sued the officer who shot and killed the man, citing the Fourth Amendment, and claiming the officer used excessive force. The United States Supreme Court held the shooting officer was entitled to qualified immunity, shielding the officer from being sued. (Mullenix v. Luna (U.S. Sup. Ct.; November 9, 2015) ___U.S.___ [136 S.Ct. 305, 193 L.Ed.2d 255, 25 Fla. L. Weekly Fed. S. 555].)
Informed Exercise Of Discretion In Request To Renew Restraining Order.
Out of the blue, a woman started receiving letters saying strange and scary things, from a man she knew in high school decades earlier. She requested a restraining order under Code of Civil Procedure section 527.6, and the court issued the order. At a 2014 hearing wherein the woman requested the court to renew the order, the man opposed the order, but this time around he had a lawyer representing him. The lawyer argued the man was a “less-than-artful communicator with a slight stutter and a very naïve view of the court system” who appeared at the 2011 hearing without an attorney, witnesses or evidence, only to be “laughed at in court, humiliated, unable to effectively communicate with the court because of the intense pressure he felt.” The trial court renewed the restraining order. On appeal, the man contended the court “mechanically” granted the request to renew the restraining order. In reversing, the Court of Appeal stated: “Because we agree that the trial court erred in not recognizing that it had discretion whether to grant a renewal, we reverse and remand. . . to allow the trial court to make an informed exercise of its discretion.” (Cooper v. Bettinger (Cal. App. Second Dist., Div. 1; November 12, 2015) 242 Cal.App.4th 77 [194 Cal.Rptr.3d 772].)
"Every Killer You Kill, Never Kills Again" -- Bill Maher.
In 1995, a jury sentenced defendant to death for the rape and murder of his girlfriend's mother. He now argues that the delay in carrying out his execution amounts to cruel and unusual punishment under the Eighth Amendment. Although more than 900 people have been sentenced to death in California since 1978, only 13 have been executed. Some Death Row inmates have died of natural causes, the sentences of some have been vacated, and 748 remain on Death Row. For those who are eventually executed, the process will likely take 25 years or more. While acknowledging that many agree with defendant that California’s capital punishment system is dysfunctional and that the delay between sentencing and execution in California is extraordinary, the Ninth Circuit declined to apply defendant's "novel constitutional rule." (Jones v. Davis (Ninth Cir.; November 12, 2015) 806 F.3d 538.)
Condition Of Probation For Juvenile Overbroad.
A juvenile ward of the court admitted he committed second-degree burglary and was placed on probation. On appeal, he challenged an electronic search condition requiring him to “submit…any electronics and passwords under [his] control to search by Probation Officer or peace officer with or without a search warrant.” The Court of Appeal found the condition overbroad, ordering that it be modified to state: “Submit all electronic devices under your control to a search of any text messages, voicemail messages, call logs, photographs, e-mail accounts and social media accounts, with or without a search warrant, at any time of the day or night, and provide the probation officer or peace officer with any passwords necessary to access the information specified.” (In re Patrick F. (Cal. App. First Dist., Div. 5; November 12, 2015) 242 Cal.App.4th 104.)
Table of Contents of This Issue