Untitled Document

Litigation Update

Litigation Section News: February 2015

Senior Editor
Eileen C. Moore, Associate Justice
California Court of Appeal, Fourth District

Managing Editor
Mark A. Mellor, Esq.

Table of Contents of This Issue

"I Think I'll Sue My Client For Fees."

A lawyer sued his former client for unpaid fees and costs. After traveling through the trial court, up to the Court of Appeal, back to the trial court, into arbitration and then once again back to the trial court, the trial court, agreeing with the arbitrator, concluded the client had fully paid what he owed. The trial court, however, ruled the lawyer was the prevailing party and ordered the client to pay more than $1 million in attorney fees on that basis. Back to the Court of Appeal. With regard to attorney fees, the appellate court found the lawyer had been awarded no relief on his contract claim so he was not the prevailing party on that claim, and that, as a matter of law, the client was the prevailing party on the contract claim. As to costs, the appellate court also found that as a matter of law, under Code of Civil Procedure, section 1032, the client was the prevailing party. (David S. Karton, A Law Corp. v. Dougherty (Cal. App. Second Dist., Div. 1; November 14, 2014) 231 Cal.App.4th 600, [180 Cal.Rptr.3d 55].)

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In a classwide wage and hour action, the court granted the defendant employer's petition to compel arbitration, leaving it up to the arbitrator to decide whether the agreement contemplated classwide and/or representative arbitration, or whether only the named plaintiff’s individual claim would be resolved in the arbitration. The employer filed a petition for writ of mandate in the Court of Appeal, arguing that where an arbitration agreement is silent on the issue, the court, not the arbitrator, should determine whether the class claims may be pursued in arbitration. The appellate court granted the employer’s petition, stating: “We conclude that a court, not an arbitrator, should also decide whether the parties agreed to arbitrate representative claims, such as the PAGA claim in this case, in the face of an arbitration provision that is silent on the matter. The Concepcion [AT&T Mobility LLC v. Concepcion (2011) ___U.S.___ [131 S.Ct. 1740, 179 L.Ed.2d 742] court’s reasons for concluding that class arbitration is inconsistent with arbitration under the FAA similarly apply to the arbitration of representative actions.” (Garden Fresh Restaurant Corp. v. Sup. Ct. (Alicia Moreno) (Cal. App. Fourth Dist., Div. 1; November 17, 2014) 231 Cal.App.4th 678, [180 Cal.Rptr.3d 89].)

"Any Fool Can Make A Rule, And Any Fool Will Mind It." — Henry David Thoreau.

The parties involved with a foreclosure sale stipulated to the appointment of a temporary judge. Had California Rules of Court [CRC], rule 2.400 (b)(2) been followed by the parties, the result here would likely have been different. That rule requires that a temporary judge or referee must not accept or consider any copy of a document unless the document has the clerk’s file stamp or is accompanied by a declaration stating that the original has been submitted for filing. After the temporary judge decided the case, the judgment was filed in the superior court, and that same day the prevailing party served a notice of entry of judgment. Thereafter, the losing party moved to vacate the judgment and to correct a legal error in the judgment. Almost three months after the notice of entry of judgment was filed with the superior court, the losing party filed an appeal. The prevailing party moved to dismiss the appeal because it was not filed within 60 days after service of notice of entry of judgment as is required under CRC, rule 8.104(a)(1) (B), and the motion to vacate had not been filed with the superior court. In dismissing the appeal, the appellate court stated: “Submitting the motion to vacate to a temporary judge is not a valid motion because it does not comply with the Code of Civil Procedure and Rules of Court. Therefore, the time to appeal was not extended. The rules governing posttrial motions involve drawing bright lines marking the point when the trial court’s jurisdiction over a case ends and the jurisdiction of the appellate court begins. We caution the bar that stipulating to a temporary judge does not relieve the parties from complying with statutes that affect our jurisdiction.” (Conservatorship of Townsend (Cal. App. Second Dist., Div. 1; November 17, 2014) 231 Cal.App.4th 691, [180 Cal.Rptr.3d 117].)

Defendants' Appeal Dismissed After Violation Of Trial Court's Orders Relating To Transfers Of Money.

After a large judgment in favor of plaintiffs in a fraud action, defendants appealed. The trial court had enjoined defendants and their agents from selling, spending, transferring or dissipating any part of their assets. When plaintiffs learned defendants violated the orders, they filed a motion to dismiss defendants’ appeal under the doctrine of disentitlement, identifying 47 different transfers of money that violated the trial court’s orders. In granting the motion to dismiss the appeal, the appellate court stated: “It would be unjust to allow defendants to seek the benefits of an appeal while willfully disobeying the trial court’s orders and frustrating plaintiffs’ legitimate efforts to enforce the judgment. (Gwartz v. Weilert (Cal. App. Fifth Dist.; November 18, 2014) 231 Cal. App.4th 750, [180 Cal.Rptr.3d 809].)

New Law In Family Law.

In Jackson v. Jackson (1975) 51 Cal.App.3d 363, [124 Cal.Rptr. 101], the court held that in a marital action, when a couple switched custody, and the children went to live with the father, California law would allow credit to the father for the support he rendered to the children while they were in his custody. It was in this case the oft-use term “Jackson credits” was coined. The present case is different in that the parents are not married and there is a paternity action judgment wherein the parents agreed to visitation and support. However, at some point, the father moved back to the home with the mother and the children. After their attempted reconciliation failed, the father claimed credit for the support he rendered to the children while living with them. The trial court concluded the father was not entitled to Jackson credits because there was not a total reversal of custody, as there was in the Jackson case, but an attempted reconciliation. In reversing, the appellate court stated: "We conclude the equity approach—allowing credit for support actually given during a period of cohabitation—is the one that best accords with existing California law and the statutory scheme." (Helgestad v. Vargas (Cal. App. Fourth Dist., Div. 3; November 18, 2014) 231 Cal.App.4th 719, [180 Cal.Rptr.3d 318].)

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First Amendment Rights Of Sex Offenders Preserved.

Under California law, sex offenders have long been required to report their address and a current photograph to law enforcement. Apparently to catch up to the 21st century, the Legislature passed a law requiring sex offenders to also report any and all internet identifiers within 24 hours of acquiring such [Californians Against Sexual Exploitation Act; Penal Code sections 290.012-290.015]. A nonprofit organization representing sex offenders filed an action in federal court, contending the new law violates the First Amendment rights of sex offenders. The trial court issued an injunction, preventing the new law from being enforced because it infringes upon the free speech of sex offenders. In affirming the trial court’s order, the Ninth Circuit Court of Appeals noted: “[S]ex offenders’ fear of disclosure in and of itself chills their speech. If their identity is exposed, their speech, even on topics of public importance, could subject them to harassment, retaliation, and intimidation.” (John Doe v. Kamala D. Harris, Attorney General (Ninth Cir.; November 18, 2014) 772 F.3d 563.)

"The Remedy Is Worse Than The Disease." — Francis Bacon.

Pelvic organ prolapse occurs when a woman has weak vaginal walls that allow adjoining organs, the uterus, the bladder, and/or the rectum, to drop into the vaginal canal. This condition can cause organ dysfunction, such as incontinence, pelvic pressure and pain. Pelvic organ prolapse can significantly impact a woman’s quality of life and, in severe cases, cause a woman to become physically disabled. One treatment option is to use polypropylene mesh to support the vagina. Around 2003, instead of inserting the mesh through an abdominal incision, surgeons have been implanting the mesh transvaginally. This case involves a transvaginal mesh developed by defendant and implanted into plaintiff, after a premarket clearance by the Food and Drug Administration. Here, the mesh caused problems of its own. As an example of the problems, after plaintiff’s sixth surgery, the mesh eroded into plaintiff’s rectal area, requiring a seventh and then an eighth surgery. By the time of trial, she was in excruciating pain and had lost control of her bowels. A jury found in favor of plaintiff, awarding her $5.5 million, finding the surgeon was 40 percent responsible. The award was thus reduced by 40 percent. In affirming, the appellate court said all three negligence theories [negligent design, negligent training and negligent misrepresentation] were properly before the jury and that it did not matter that it cannot be determined under which theory the jury returned its verdict since substantial evidence supported the result of all three. (Scott v. C. R. Bard, Inc. (Cal. App. Fifth Dist.; November 19, 2014) 231 Cal.App.4th 763, [180 Cal.Rptr.3d 479].)

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The intoxicated driver who caused the accident which killed a man had insurance coverage of $15,000. The intoxicated driver's employer had $250,000 coverage. The decedent's widow collected that $265,000 in a settlement. Thereafter, the widow sought to collect $100,000 in underinsured motorist coverage under a motorcycle insurance policy issued to the decedent and the widow. The trial court concluded the carrier was not required to pay under the underinsured motorist provision of the motorcycle policy, and the widow appealed. In affirming the trial court’s grant of summary judgment in favor of the carrier, the appellate court noted the motorcycle policy allows the carrier to deduct from the underinsured motorist coverage limits "the amount paid to the insured by or for any person or organization that may be held legally liable for the injury," and the carrier properly made the deduction. (Elliott v. Geico Indemnity Co. (Cal. App. Third Dist.; November 19, 2014) 231 Cal.App.4th 789, [180 Cal.Rptr.3d 331].)

Endangered Grizzly Bears.

Between 1800 and 1975, grizzly bear populations fell from estimates of over 50,000 to less than 1,000. In Yellowstone National Park, government helicopters regularly fly over a habitat shared by grizzly bears and bison, for the purpose of preventing bison from contaminating cattle with a disease carried by bison. Concerned about the untoward albeit unintended adverse effect the helicopter flights have on grizzly bears, an environmental group filed an action against the federal government under the Endangered Species Act of 1973 [16 U.S.C. § 1531; ESA]. The federal trial court dismissed the action, granting the government’s motion for summary judgment. The Ninth Circuit Court of Appeals largely affirmed the order of dismissal, stating: “[The environmental group] alleges that ‘helicopter . . . operations . . .displace grizzly bears, including female bears, from critical spring and summer feeding activities.’ Included in the record is a video [the environmental group] obtained of a ‘bisonhazing helicopter operation’ which purportedly depicts a ‘grizzly bear running away from the helicopter’ on May 12, 2010. The videographer, however, does not state and the district court could not conclude that ‘the bear was engaged in any feeding activity, whether before, during, or after its contact with the helicopter.’” (Alliance for the Wild Rockies v. United States Dep’t of Agric. (Ninth Cir.; November 20, 2014) 772 F.3d 592.)

Employee Fired Because School Mistakenly Thought She Reported School to Licensing Agency.

A preschool mistakenly believed one of its employees contacted the state licensing agency regarding conditions at the preschool and the employee was terminated. The employee sued the preschool, and the trial court granted the preschool’s motion for summary judgment because the lawsuit alleged the employee’s termination was contrary to public policy, and that as a matter of law the termination did not violate public policy because the employee had not, in fact, made a complaint. In reversing the grant of summary judgment, the appellate court stated public policy precluded the preschool from discharging the employee on its mistaken belief that she had reported it to the licensing authority because "otherwise the policy to encourage the reporting of alleged violations would be frustrated." (Diego v. Pilgrim United Church of Christ (Cal. App. Fourth Dist., Div. 3; November 21, 2014) 231 Cal.App.4th 913, [180 Cal.Rptr.3d 359].)

Membership in the ADR Subcommittee.  The Litigation Section ADR Subcommittee, which is comprised of both ADR professionals and advocates, focuses on recent case law and legislative developments in the field of alternative dispute resolution. The ADR Subcommittee also provides educational programs on ADR issues. Members of the Litigation Section who wish to join the ADR Subcommittee should send an e-mail and resume to the co-chairs of the Committee: Jeff Dasteel (Jeffrey.dasteel@gmail.com) and Don Fischer (donald.fischer@fresno.edu). Emil to Don Fischer Email to Jeffrey Dasteel $18 Million Punitive Damages Award Upheld.

A jury awarded $30 million in compensatory damages and $18 million in punitive damages against Union Carbide in an asbestos/mesothelioma case. The trial court issued a remittitur, reducing the compensatory damages to $6 million, which plaintiffs accepted. But the trial court declined to reduce the punitive damages. The appellate court concluded the evidence was sufficient to support the verdict and affirmed. (Izell v. Union Carbide Corp. (Cal. App. Second Dist., Div. 3; November 21, 2014) 231 Cal.App.4th 962, [180 Cal.Rptr.3d 382].)

Clear Sailing Attorney Fee Provision In Class Action Settlement Upheld.

After the trial court approved a class action settlement, overruling the objections of a member of the class, the class member appealed. The class member argued the notice to the class members denied them due process because the nature and timing of the settlement approval procedure set forth in the notice was unfair, and because the language in the notice describing a class member’s financial responsibility for attorneys’ fees was misleading. He also argued that, in reviewing class counsel’s request for attorneys’ fees, the trial court erred by using the percentage of fund method and then made mistakes when performing lodestar calculations. Finally, he contended class counsel breached their fiduciary duty to the class members by including a collusive clear sailing provision in the amended settlement agreement. In affirming the trial court's order, the appellate court held the class notice did not violate the class members' due process rights, and that the trial court’s method of calculating attorney fees was proper and the amount reasonable. With regard to the amount of fees, class counsel had requested no more than a third of the gross settlement amount, but the class member was concerned there was an underlying agreement the defendant would not contest the amount of fees. Obviously aware of that “clear sailing” possibility, the appellate court stated: “One inherent risk [in class action settlements] is that class counsel may collude with the defendants, ‘tacitly reducing the overall settlement in return for a higher attorney’s fee.”’ The appellate court concluded: “In the absence of any of the recognized warning signs of collusion or other evidence of collusion, the inclusion of a clear sailing provision in the settlement agreement did not constitute a breach of fiduciary duty on the part of class counsel.” (Laffitte v. Robert Half Internat., Inc. (Cal. App. Second Dist., Div. 7; November 21, 2014) 231 Cal.App.4th 860, [180 Cal.Rptr.3d 136].)

Insured Entitled To Conditional Judgment Against Insurance Company.

Three days after an insurance company issued a property policy, burglars caused serious damage to the building by stripping all electrical and other conductive materials. The policy provided two different measures for reimbursing covered damages: the full cost of repairing the damages, so long the repairs were actually made, or the depreciated value of the damaged property. As of the date of trial, the insured had not repaired the damage. The trial court granted a JNOV. The appellate court reversed, concluding the insured was entitled to a conditional judgment if the repairs are actually made. (Stephens & Stephens XII, LLC v. Fireman’s Fund Ins. Co. (Cal. App. First Dist., Div. 1; November 24, 2014) 231 Cal.App.4th 1131, [180 Cal.Rptr.3d 683].)

Masthead. Senior Editor: Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District. Managing Editor: Mark A. Mellor, Esq.. Executive Committee: Carol D. Kuluva, Chair; Reuben A. Ginsburg, Vice-Chair; Kathleen Brewer,Treasurer; Robert Bodzin, Immediate Past Chair; Megan A. Lewis, Secretary. Members: Bruce P. Austin; Cynthia Elkins; Terrance James Evans; J. Thomas Greene; Jewell J. Hargleroad; Susan Kay Horst; Kevin J. Kelly; Karen J. Petrulakis;  Edward A. Torpoco; Klnh-Luan Tran; George Walles. Judicial Advisors: Hon. Suzanne Bolanos; Justice Victoria Chaney; Hon. Lawrence W. Crispo (Ret.); Hon. M. Lynn Duryee; Hon. Elizabeth Feffer; Hon. Terry B. Friedman; Hon. J. Richard Haden (Ret.); Hon. Jamie A. Jacobs-May; Justice Eileen Moore; Hon. Ronald S. Prager; Hon. John L. Segal; Hon. James L. Warren (Ret.). Advisors: Donald Barber; Charles V. Berwanger: Paul S. Chan; Tanja L. Darrow; Elizabeth A. England; David P. Enzminger; Michael D. Fabiano; Terry Barton Friedman; Michael A. Geibelson; Ruth V. Glick; Kevin J. Holl; Jamie A. Jacobs-May; Joel Kleinberg; Mark A. Mellor; Eileen C. Moore; Bradley A. Patterson; Norm Rodich; Jerome Sapiro, Jr.; e. robert (bob) wallach; Joan Wolff; Herb Yanowitz. Board of Trustees Liaisons: Daniel Dean (District 1); Craig Holden and Mark Shem (District 6); David J. Pasternak, Board Liaison. Section Coordinator: Mitch Wood, 415-538-2594, mitch.wood@calbar.ca.gov. Administrative Assistant: Ana Castillo, 415-538-2071, ana.castillo@calbar.ca.govNo Fiduciary Or Current Client Exception To The Attorney-Client Privilege.

In 2012, a law firm’s client wrote some nasty emails to the firm about the advice he was being given in a litigation matter. The lawyer within the firm who was handling the matter sought the advice of another lawyer within the firm about the dispute. A few years later, the client brought an action against the law firm for legal malpractice and sought discovery about the communication between the two lawyers within the firm. The trial court granted a motion to compel the discovery, reasoning that the holding in Thelen Reid & Priest v. Marland (N.D. Cal. Feb. 21, 2007), a case wherein a law firm simultaneously represented both an outside client and itself and held that a firm’s fiduciary and ethical duties to a client trump the attorney-client privilege, applied in the instant case. In granting the law firm’s writ of mandate in the current case, the appellate court recognized that large law firms increasingly are hiring their own in-house counsel to provide day-to-day ethics advice and monitor internal policies and procedures. The Court of Appeal stated that California Courts are not at liberty to create implied exceptions to the attorney-client privilege embodied in Evidence Code sections 958 and 962. (Edwards Wildman Palmer LLP v. Sup.Ct. (Mireskandari) (Cal. App. Second Dist., Div. 3; November 25, 2014) 231 Cal.App.4th 1214, [180 Cal.Rptr.3d 620].)

It's A Sad Day When A Father Doesn't Want To Support His Children.

The appellate court affirmed a trial court's exercise of discretion to impute income to a father pursuant to Family Code section 4058(b). The appellate court also affirmed the trial court's child support order because substantial evidence supports the trial court's findings the father had the ability and opportunity to keep his job, that his termination from his job was really voluntary divestiture of resources and that he was diverting business to his father's company to avoid his child support obligations. (In re Marriage of McHugh (Cal. App. Fourth Dist., Div. 3; November 26, 2014) 231 Cal.App.4th 1238, [180 Cal.Rptr.3d 448].)

Must Go To Arbitration Even Though One Party Claims The Controversy Is Not Ripe For Adjudication.

The trial court denied a party's petition to compel arbitration after concluding the petition failed to present an actual controversy sufficiently ripe for adjudication. Here, the parties, both of whom are sophisticated business entities, agreed to a broadly worded arbitration provision that obligates them to arbitrate “[a]ny and all disputes, controversies or claims arising under or relating to the Ground Lease.” In reversing, the appellate court stated: “[W]e decline to read an unwritten justiciability requirement into the arbitration provision the parties bargained for and negotiated. The expansive arbitration provision does not on its face limit the universe of arbitrable disagreements to those that are ‘ripe.’ Unlike some arbitration provisions that explicitly apply only to disputes that are ‘justiciable under applicable state or federal law’ [], the arbitration provision in this case is devoid of any such limiting language.” (Bunker Hill Park Ltd. v. U.S. Bank National Assn. (Cal. App. Second Dist., Div. 4; November 26, 2014) 231 Cal.App.4th 1315, [180 Cal.Rptr.3d 714].)

Arbitrator May Rule On Pitchless Motion.

This case involves an administrative appeal from discipline imposed on a correctional officer who was fired for falsifying payroll records. The California Supreme Court held that in an administrative appeal from discipline imposed on the officer, an arbitrator may rule upon a discovery motion for officer personnel records, referred to as a Pitchess motion [Pitchess v. Sup.Ct. (1974) 11 Cal.3d 531, [113 Cal.Rptr. 897, 522 P.2d 305].] (Riverside County Sheriff’s Dept. v. Stiglitz (Cal. Sup. Ct.; December 1, 2014) 60 Cal.4th 624, [181 Cal.Rptr.3d 1, 339 P.3d 295].)

Tameny Claim.

An employee of a private university reported numerous instances of misconduct committed by her immediate supervisor and was fired. In her action for wrongful termination in violation of public policy, the university argued the illegal conduct the employee reported involved an injury only to the pecuniary interests of the university, and not to the public at large. The trial court granted the university's demurrer without leave to amend. Noting the complaint adequately pleads the fired employee had a reasonable basis to suspect commercial bribery and disclosed her reasonable suspicions to the university, the appellate court reversed. The court stated: "We conclude that the complaint does state a cause of action for wrongful termination in violation of public policy on a very narrow basis." (Ferrick v. Santa Clara University (Cal. App. Sixth Dist; December 1, 2014) 231 Cal.App.4th 1337, [181 Cal.Rptr.3d 68].)

Fee Dispute Not Elevated To The Constitutional Arena.

Both parties are lawyers. The defendant first represented a man in a personal injury lawsuit. When defendant withdrew from representation, plaintiff represented the man. Defendant asserted an attorney fee lien, informing one of the insurers in the personal injury case that any payment of funds was subject to a lien for defendant’s fees. Plaintiff negotiated a settlement, and the insurance company made the check payable to the injured man and defendant. Plaintiff filed the present declaratory relief action to determine the status of defendant’s lien. Defendant filed a special motion to strike pursuant to Code of Civil Procedure section 425.16. The trial court denied the motion, finding the gravamen of the declaratory relief complaint was not protected activity. On appeal, defendant contends the trial court erred in denying the motion, reasoning the assertion of the lien was a statement made in anticipation of litigation, and that plaintiff’s declaratory relief action therefore targeted protected activity. In affirming the order denying the motion, the appellate court stated: “None of the purposes of the anti-SLAPP statute would be served by elevating a fee dispute to the constitutional arena, thereby requiring a party seeking a declaration of rights under an attorney lien to demonstrate a probability of success on the merits in order to obtain equitable relief.” (Drell v. Cohen (Cal. App. Second Dist., Div. 8; December 5, 2014) 232 Cal.App.4th 24, [181 Cal.Rptr.3d 191].)

Class Decertification Order Affirmed.

This is a class action against a healthcare provider. Plaintiffs contend the provider unfairly charges uninsured patients more for emergency services that the fees it accepts from patients covered by private insurance or governmental plans. The trial court first certified, but later decertified the class. In affirming the order decertifying the class, the appellate court stated: “The trial court considered the evidence presented and found there is no reasonable means to ascertain the members of class without individual inquiries of more than 120,000 patient records and continued class treatment is not appropriate because individualized issues, rather than common issues, predominate, particularly with respect to whether or not class members are entitled to recover damages. Finding no abuse of discretion, we affirm the order decertifying the class.” (Hale v. Sharp Healthcare (Cal. App. Fourth Dist., Div. 1; December 5, 2014) 232 Cal.App.4th 50, [180 Cal.Rptr.3d 825].)

Duty Of A Restaurant To Assist Patrons Exit Parking Lot.

The median of a highway in front of a restaurant had temporary traffic dividers. A man operating a motorcycle collided with a restaurant patron exiting the restaurant parking lot. Not realizing only a right turn was possible, the patron at first attempted a left turn and the motorcyclist collided with the patron. Plaintiffs are the parents of the motorcyclist, who died in the collision. The parents allege the restaurant "chose profits over public safety by failing to pay the additional $8 per hour to have another attendant on duty" to direct or assist patrons exiting the parking lot. Finding the restaurant had no duty to decedent, the trial court sustained the restaurant's demurrer without leave to amend. The appellate court reversed, finding plaintiffs should be given leave to amend, and commenting: "[O]ur analysis of Rowland factors [Rowland v. Christian (1968) 69 Cal.2d 108, [70 Cal.Rptr. 97, 443 P.2d 561], indicates that the facts here support finding defendant had a duty to warn patrons of the danger in exiting its parking lot as it was on notice of the dangerous conditions of the highway and the risk it posed to patrons leaving the restaurant as well as the danger to persons traveling the highway from a patron exiting the lot in an unsafe manner. First, given the center divider in the roadway, it was foreseeable that patrons exiting at night might not be aware of its presence and make an unsafe turn. At night the dividers in the road would be more difficult to see and patrons leaving the restaurant may have consumed alcohol. Second, an unsafe turn would likely cause harm either to the patron leaving the parking lot or persons on the roadway. Third, there is close connection between [the restaurant's] failure to warn and the injury plaintiffs' decedent suffered. The remaining factors are closely connected: there is moral blame that can be attached to defendant's failure to take minimal, inexpensive steps to avert harm to its patrons and persons in the roadway. Prominent reflective signage and driveway paint would have done much to avoid the accident here." (Annocki v. Peterson Enterprises, LLC (Cal. App. Second Dist., Div. 1; December 5, 2014) 232 Cal.App.4th 32, [180 Cal.Rptr.3d 474].)

No Administrative Appeal Right After Police Officers Transferred To Another Assignment.

LAPD robbery/homicide lieutenant, with 23 years of experience on the force, was counseled for a lack of supervisory skills. When the situation did not improve, it was determined that either the lieutenant had to make significant changes to interpersonal skills, or a significant number of subordinates would leave the section. Retaining rank and pay, the lieutenant was transferred. However, in the new assignment the lieutenant did not receive as much overtime and did not enjoy the use of a department vehicle. Another officer, a detective for 25 years, was administratively charged with creating a hostile work environment and making inappropriate remarks of a sexual nature. The detective was temporarily relieved of duty, and was later officially reprimanded and restored to the position of detective. But the detective was later relieved again when another complaint was lodged. The detective was transferred to another division, but was restricted from carrying a gun. Both the lieutenant and the detective, for themselves and for all officers belonging to their association, filed a petition for writ of mandate and a complaint for declaratory relief. They claimed their transfers were punitive and that they were entitled to an administrative appeal hearing. The trial court denied them relief after concluding the transfers were imposed for purposes other than punishment and would not lead to adverse employment consequences. In affirming the trial court, the appellate court stated: “In this case we hold that the Public Safety Officers Procedural Bill of Rights Act (POBRA) [Government Code section 3300, et seq.] does not afford officers the right to an administrative appeal of a transfer of assignment, which does not affect compensation or other specified rights, solely because the transfer may lead to negative employment consequences, or upon the officer’s belief to that effect. Instead, as the statute specifically requires, the transfer must be ‘for purposes of punishment.’” (Los Angeles Police Protective League v. City of Los Angeles (Cal. App. Second Dist., Div. 4; December 9, 2014) 232 Cal.App.4th 136, [181 Cal.Rptr.3d 204].)

Importance Of Voir Dire.

Federal Rules of Evidence rule 606(b)(1) states that, “a juror may not testify about any statement made or incident that occurred during the jury’s deliberations,” and subdivision (b)(2)(A) states there is an exception in that a juror may testify whether extraneous prejudicial information was improperly brought to the jury’s attention. In this negligence case, the jury returned a verdict for the defendant. Afterwards, the plaintiff moved for a new trial, armed with the declaration of a juror who said the foreperson revealed during deliberations that her daughter had been at fault in an accident and a lawsuit would have ruined her life. In the motion for new trial, plaintiff argued the foreperson lied in voir dire about her impartiality. The federal trial judge denied the motion for new trial, and the Eighth Circuit Court of Appeals affirmed. The United States Supreme Court also affirmed, stating: “The affidavit at issue was not admissible under Rule 606(b)(2)(A)’s exception for evidence of ‘extraneous prejudicial information.’ Generally speaking extraneous information derives from a source ‘external’ to the jury. Here, the excluded affidavit falls on the ‘internal’ side.” (Warger v. Shauers (U.S. Sup. Ct.; December 9, 2014) ___U.S.___, [135 S.Ct. 521, 190 L.Ed.2d 422].)

Privilege Waived In Inadvertent Disclosure Of Documents.

During litigation, a public entity inadvertently produced documents which appeared in its privilege log. When it discovered its mistake, the public entity demanded their return and an agreement the documents would not be relied upon in any way. The receiving party declined, contending the public entity waived any claim of privilege. The trial judge concluded that although the documents did not have to be disclosed under the Public Records Act [California Government Code sections 6250-6276.48], the privilege was waived under Government Code section 6254.5 once the documents were disclosed. In affirming, the appellate court discussed the difference between mistaken disclosure in typical discovery situations versus inadvertence under the Public Records Act. The Court of Appeal concluded: “We hold that disclosures pursuant to the PRA that are made inadvertently, by mistake or through excusable neglect are not exempted from the provisions of section 6254.5 that waive any privilege that would otherwise attach to the production.” (Ardon v. City of Los Angeles (Cal. App. Second Dist., Div. 4; December 10, 2014) 232 Cal.App.4th 175, [181 Cal.Rptr.3d 324].)

Equitable Estoppel Applied To Late Governmental Claim.

Two third grade girls complained about their male teacher touching them in private areas of their bodies. School administrators repeatedly admonished the parents and children not to discuss the situations with anyone but the police. Police investigations proceeded slowly, and more than a year after the first reports, the teacher pleaded guilty and was sentenced. At that point, the girls’ parents filed governmental claims with the school district, which returned the claims without action because of a belief they were untimely. Civil complaints followed, and the two actions were consolidated. A four week trial was held, and a jury found in favor of the girls and against the teacher and the school district. The jury awarded $200,000 for future medical expenses and $1.6 million in past and future non-economic damages, assessing 60 percent responsibility to the teacher and 40 percent to the school district. On appeal, the school district argued it was indisputable the governmental claims were filed more than six months after the teacher molested the girls, in violation of Government Code section 911.2. In affirming, the appellate court stated the evidence showed that school district administrators instructed the girls and their parents not to talk with anyone about the molestation incidents, warning them they might jeopardize the investigation and criminal prosecution, and that “the facts of this case support the application of equitable estoppel.” (J.P. v. Carlsbad Unified School Dist. (Cal. App. Fourth Dist., Div. 1; December 12, 2014) 232 Cal.App.4th 323, [181 Cal.Rptr.3d 286].)

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