Litigation Update

Litigation Section News: July 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

All Female Staffing Policy For Some Prison Jobs Not Discrimination Against Males.

A prison designated a number of femaleonly positions, and the prison guard union brought suit for discrimination against male correctional officers. In a 1993 case [Jordan v. Gardner (1993) 986 F.2d 1521], a federal court halted the practice of permitting cross-gender pat down searches in nonemergency situations. In addition, over the years, there have been instances of rape of female inmates by male guards. Female guards were recruited and hired as part of a prison reform effort to reduce sexual assaults. The trial judge granted summary judgment in favor of the prison, and the Ninth Circuit affirmed, finding the staffing policy was justified as a bonafide occupational policy to protect the privacy of inmates and prevent sexual assaults. (Teamsters Local Union No. 117 v. Wash. Dep’t of Corr. (Ninth Cir.; June 12, 2015) 789 F.3d 979.)

Judicial Admission Made In Unverified Complaint.

This is the scenario: A homeowner sued a general contractor, alleging shoddy work. In his unverified complaint, the homeowner alleged the contractor was licensed at all times. The general contractor responded with a cross-complaint for unpaid work. A local rule required plaintiff to identify all controverted issues, and plaintiff did not identify licensure as a controverted issue. Seeing no licensure issue, the contractor did not obtain a verified certificate of licensure from the Contractors’ State Board, a process which takes at least six days. When the contractor was about to rest his case on his cross-complaint, the homeowner’s lawyer moved for nonsuit based on the absence of a verified certificate as required by Business and Professions Code section 7031, subsection (d),which requires such a certificate when licensure is a controverted issue. The court entered judgment in favor of the homeowner based on the absence of the contractor introducing a certificate of licensure. The appellate court reversed, stating: “We conclude this is one of those relatively rare cases where a party can be bound by a judicial admission made in an unverified complaint. [] Here, the judicial admission that the general contractor was licensed, compounded by the homeowner’s failure to comply with the local rule requiring identification of all controverted issues, rendered the question of licensure assuredly uncontroverted for purposes of section 7031.” (Womack v. Lovell (Cal. App. Fourth, Div. 3; June 15, 2015) 237 Cal.App.4th 772 [188 Cal.Rptr.3d 471].)

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10% discount for Section members on continuing ed programs cosponsored by the CEB and the Section. See for additional details. Link to Litigation Section page on CEB site Order Changing Custody Of Children Reversed.

The Court of Appeal issued a peremptory writ in the first instance after the court issued a modification order changing custody to the noncustodial parent, thereby requiring the minor children to move in the middle of the school year from their California home to the noncustodial parent’s home in Alabama. The appellate court said the family law court “abused its discretion by failing to consider the relevant factors, including the children’s existing educational, physical, emotional and familial relationships with the custodial parent, and whether an out-of- state move-away would detrimentally affect their interests in continuity and stability.” (Jane J. v. Sup. Ct. (Christopher J.) (Cal. App. Fourth, Div. 3; June 16, 2015) 237 Cal.App.4th 894 [188 Cal.Rptr.3d 432].)

Family Code Section 852 Must Be Satisfied Before Joint Title Presumption Of Family Code Section 2581 Applies.

In their divorce, the wife contended there was a community property interest in a partnership which was owned by the husband for years prior to the marriage for which the partnership agreement was modified during the marriage to state the husband and wife were both owners. In creating a joint title presumption, Family Code section 2581 states property acquired jointly during the marriage is community property. Family Code section 852 states a transmutation of property is not valid unless made in writing by an express declaration. The Court of Appeal held: “We hold that when a spouse places separate property in joint title form, the transmutation requirements of section 852 must be satisfied before the joint title presumption of [section] 2581 applies. The documents in this case do not contain an express transmutation of husband’s separate property interest in the partnership, and therefore, it remained husband’s separate property.” (In re Marriage of Lafkas (Cal. App. Second, Div. 5; June 16, 2015) 237 Cal.App.4th 921 [188 Cal.Rptr.3d 484].)

Appeal Or Order Granting Motion To Strike SLAPPback Case Dismissed For Lack Of Jurisdiction.

Code of Civil Procedure section 904.1, subdivision (a), subsection (13), states: “An appeal. . . may be taken from any of the following: [¶] (13) From an order granting or denying a special motion to strike under Section 425.16.” In the present case, the plaintiff/appellant had specifically pled the claim was a SLAPPback cause of action pursuant to Code of Civil Procedure section 425.18 [“SLAPPback means any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under Section 415.16.”] Here, the trial court granted defendant’s motion to strike plaintiff’s SLAPPback case, and plaintiff appealed. The Court of Appeal dismissed plaintiff’s appeal, finding it did not have jurisdiction to consider it. (West v. Arent Fox LLP (Cal. App. Second, Div. 5; June 17, 2015) 237 Cal.App.4th 1065 [188 Cal.Rptr.3d 729].)

Link to State Bar Section Rebates offer High Court Holds Church May Put Up Temporary Signs To Announce Times And Places Of Its Services.

A town has a strict Sign Code, which permits ideological, political and a limited category of directional signs for “qualifying events.” A small, cash-strapped church and its pastor wished to advertise the time and location of their Sunday church services. Services are held in changing locations in or near the town. The church began placing 15 to 20 temporary signs announcing the times and locations of Sunday services. The signs were posted early on Saturday and removed around midday on Sunday. The town’s Sign Code compliance manager twice cited the church for violating the Sign Code, and promised to punish any future violations. The church filed an action in federal court alleging the Sign Code abridged their freedom of speech in violation of the First and Fourteenth Amendments. The federal trial court denied the church’s petition for a preliminary injunction, and the federal appeals court affirmed, holding the Sign Code did not regulate speech on the basis of content. When the case was sent back to the trial court, summary judgment was granted in favor of the town, and again the appeals court affirmed. When the case reached the U.S. Supreme Court, the town offered two governmental interests: 1) preserving the town’s aesthetic appeal; and 2) traffic safety. The Supreme Court stated: “Because the Town’s Sign Code imposes content-based restrictions on speech, those provisions can stand only if they survive strict scrutiny, ‘which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest,’” and concluded the town did not meet its burden. With regard to the town’s aesthetics argument, the high court said: “The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem,” and: “The Town similarly has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs. If anything, a sharply worded ideological sign seems more likely to distract a driver than a sign directing the public to a nearby church meeting.” (Reed v. Town of Gilbert (U.S. Sup. Ct.; June 18, 2015) ___U.S.___ [135 S.Ct. 2218, 192 L.Ed.2d 236].)

Create Your Member Profile. On-line My State Bar Profile allows you to access the Litigation Section’s members only area, update your contact information, pay your dues online, and more. To set up your account, go to Link to My State Bar Profile Texas Can Control What Its License Plates Say.

Texas offers automobile owners a choice between ordinary and specialty license plates. Those who want the State to issue a particular specialty plate may propose a plate design, comprising a slogan, a graphic, or both. If the Texas Department of Motor Vehicles approves the design, the State will make it available for display on vehicles registered in Texas. The Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a Confederate battle flag. The Board rejected the proposal. The United States Supreme Court was called upon to decide whether the rejection violated the Constitution’s free speech guarantee. In its opinion, the high court notes that license plates comprise “government speech” in that they contain the State name, a vehicle identification number and often messages from a State such as a graphic of a State monument or a State slogan. In Pleasant Grove City v. Summum (2009) 555 U.S. 460 [129 S.Ct. 1125, 172 L.Ed.2d 853], the high court held: “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.” In the present case, the Supreme Court concluded Texas’s specialty license plate designs constitute government speech, and Texas was entitled to refuse to issue plates featuring the proposed design. (Walker v. Tex. Div., Sons of Confederate Veterans, Inc. (U.S. Sup. Ct.; June 18, 2015) ___U.S.___[135 S.Ct. 2239, 192 L.Ed.2d 274].)

3-Year-Old's Statements To Teachers Not Testimonial & Did Not Implicate Confrontation Clause.

A 3-year-old boy, who was being cared for by his mother’s boyfriend, went to school with a black eye, belt marks on his back and stomach, and bruises all over his body. The 3-year-old told school teachers the boyfriend inflicted the injuries. When authorities went to the home, the boy’s 18-month-old sister had two black eyes, a swollen hand, and a large burn on her cheek, and two pigtails had been ripped out at the roots of her hair. A court determined the 3-year-old was not competent to testify, but an Ohio court rule permitted the admission of reliable hearsay by child abuse victims. The trial court ruled the 3-year-old’s statements to his teachers bore sufficient guarantees of trustworthiness to be admitted as evidence. The boyfriend, by then the defendant, moved to exclude the 3-year-old’s statements to his teachers under the Confrontation Clause of the Sixth Amendment [“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”]. Concluding the statements were not testimonial, they were admitted and the defendant was found guilty and sentenced to 28 years in prison. The U.S. Supreme Court was called upon to decide whether statements made to persons other than law enforcement officers are subject to the Confrontation Clause. The high court ruled: “[The 3-year-old’s] statements occurred in the context of an ongoing emergency involving suspected child abuse. When [his] teachers noticed his injuries, they rightly became worried that the 3-year-old was the victim of serious violence. . . [his] age fortifies our conclusion that the statements in question were not testimonial.” (Ohio v. Clark (U.S. Sup. Ct.; June 18, 2015) ___U.S.___ [135S.Ct. 2173, 192 L.Ed.2d 306].)

Foundation For Medical Bills Established.

Two vehicles collided in an intersection and plaintiff, who was on a sidewalk, was severely injured, incurring $3,751,969 in medical bills. A jury found both defendants were negligent, but that the negligence of only one of the defendants was a substantial factor in causing damages to the plaintiff. The defendant who was found liable contended she is entitled to a new trial on damages because there is insufficient evidence of the reasonable value of plaintiff’s medical damages on the record. Plaintiff, who was uninsured, relied on the amount of the medical expenses incurred and expert testimony attesting to the fairness and reasonableness of the bills. Defendant argued plaintiff should have to do more to establish the bills were rooted in the market value of medical services, and the Court of Appeal found plaintiff’s evidence was sufficient. (Bermudez v. Ciolek (Cal. App. Fourth, Div. 3; June 22, 2015) 237 Cal.App.4th 1311 [188 Cal.Rptr.3d 820].)

Summary Judgment In Favor Of A Defendant Who Was The Passenger In A Car Reversed.

Plaintiffs’ allegations are that a passenger in a car involved in a fatal accident “told the driver to drive at an unsafe speed over a road [the passenger] knew had unusual conditions that would cause the car to become airborne, resulting in the fatal accident.” The trial court granted summary judgment after concluding there was no evidence to suggest the passenger’s act of telling the driver to drive faster affected the driver’s control over the vehicle, and therefore no triable issues of material fact existed. In reversing, the Court of Appeal agreed with plaintiffs’ contention “the evidence raises triable issues for a jury as to whether to impose joint liability on [the passenger] for her conduct on the night in question on a theory of concert of action or conspiracy, and also as to whether she unreasonably interfered with the safe operation of a vehicle within the meaning of Vehicle Code section 21701, [“No person shall willfully interfere with the driver of a vehicle or with the mechanism thereof in such manner as to affect the driver’s control of the vehicle.”] to support a cause of action.” (Navarrete v. Meyer (Cal. App. Fourth, Div. 1; June 22, 2015) 237 Cal.App.4th 1276 [188 Cal.Rptr.3d 623].)

"Patents Endow Their Holders With Certain Superpowers, But Only For A Limited Time," — Justice Kagan.

In 1990, an inventor obtained a patent for pressurized foam that can be shot in a way that mimics a spider’s string. Marvel Entertainment makes and markets products featuring Spider-Man, and Marvel began marketing a Web Blaster which shoots out foam, but without remunerating the inventor. Litigation for patent infringement ensured in 1997, and was eventually settled with an agreement Marvel would pay royalties to the inventor. A few years later, citing Brulotte v. Thys Co. (1964) 379 U.S. 29 [85 S.Ct. 176, 13 L.Ed.2d 99], Marvel brought an action for declaratory relief, asking the federal court to declare it need not pay the inventor any royalties after the end of the patent term in 2010. Marvel won at every level of the federal court. The United States Supreme Court held: “The sole question presented here is whether we should over-rule Brulotte. Adhering to principles of stare decisis, we decline to do so. Critics of the Brulotte rule must seek relief not from this Court, but from Congress.” (Kimble v. Marvel Entm’t, LLC (U.S. Sup. Ct.; June 22, 2015) ___U.S.___ [135 S.Ct. 2401, 192 L.Ed.2d 463].)

Summary Judgment, Granted To Defendant Based On A Broad Release In An Underlying Action To Which Defendant Is A Stranger, Reversed.

The underlying case involved allegations of breach of contract regarding intellectual property. After protracted litigation, there was a settlement agreement; the agreement included a broad release clause, which stated in part: “. . . do hereby irrevocably and unconditionally release and forever discharge each other and each of their respective past, present, and future affiliates, successors, predecessors, assignees, transferors, heirs, executors, administrators, members, directors, officers, shareholders, partners, principals, agents, employees, servants, attorneys, accountants, corporate parents, and corporate subsidiaries, of and from any and all past, present, and future claims, demands, causes of action, rights, violations of any law or rule including those relating to or concerning breach of contract, breach of warranty, damages, compensation, loss of services, expenses and attorney’s fees, arbitration and/or court cost, any costs, whether or not contingent, unliquidated or unmatured, known or unknown, present or future, actual or prospective or otherwise, ascertained or severally or jointly with any other person(s). . .” In the current case, the defendant, who is a stranger to the underlying settlement, claims entitlement to protection of the broad release. The trial court granted summary judgment in favor of strangers to the underlying contract, and the Court of Appeal reversed, stating several provisions of the underlying settlement agreement are not easily reconciled with its seemingly broad release language and that the subsequent conduct of the contracting parties also appears inconsistent with an intent to extend the release to unaffiliated third parties. (Epic Communications, Inc. v. Richwave Technology, Inc. (Cal. App. Sixth Dist.; June 23, 2015) 237 Cal.App.4th 1342 [188 Cal.Rptr.3d 844].)

Trial Court Erred In Not Granting Rescission To Buyer Of Real Property.

Plaintiffs bought a multimillion-dollar hillside home, and several months later, they discovered they were not connected to the City’s sewer system. Believing they were deceived, they brought an action against the sellers and the real estate agents who brokered the sale alleging various causes of action, including rescission. After the real estate agents settled for $200,000, a court trial was held on the rescission claim only. Although the court found that the sellers, with reckless disregard, made negligent misrepresentations to the buyers, it declined to effectuate a rescission of the contract. Instead, it ordered the sellers to be, for a limited time, indemnifiers to the buyers for sewer maintenance and repair costs exceeding the $200,000 they obtained in their settlement with the agents. On appeal, the buyers contend that the trial court erred in denying rescission, ordering the alternative relief, and denying them attorney fees. The sellers contend in a cross-appeal that the trial court erred in denying them attorney fees. The appellate court reversed, concluding the trial court declined to effectuate a rescission of the contract based on incorrect justifications and that its alternative remedy failed to provide the buyers with the complete relief to which they were entitled. (Wong v. Stoler (Cal. App. First Dist., Div. 1; June 23, 2015) 237 Cal.App.4th 1375 [188 Cal.Rptr.3d 674].)

Law Firm Of Attorney Who Volunteered To Conduct A Settlement Conference & Received Confidential Information Cannot Later Represent A Party To The Action.

An attorney served as a settlement officer in a mandatory settlement conference conducted by a judge and two volunteer attorneys in a case which did not settle. Later, the law firm of the attorney substituted in to represent the defendant in the same action. The trial court denied a motion to disqualify the law firm. The Court of Appeal granted a writ of mandate, holding: “If the attorney receives confidential information from one of the parties to the action, that attorney’s law firm may not subsequently agree to represent an opposing party in the same action, regardless of the efficacy of the screening procedures established by the law firm.” But the Court of Appeal also ordered the matter remanded for a hearing, stating: “If the court finds [the attorney] did not engage in ex parte communications with [plaintiff’s] representatives (either directly or by communication with the other attorneys or the judge who presided over the settlement conference), it shall reinstate its order denying disqualification of the [] law firm.” (Castaneda v. Sup. Ct. (Perrin Bernard Supowitz) (Cal. App. Second Dist., Div. 8; June 24, 2015) 237 Cal.App.4th 1434 [188 Cal.Rptr.3d 889].)

Disparate Impact, Not Disparate Treatment.

With regard to a dispute about a low income housing development in Texas, the United States Supreme Court held disparate-impact claims are cognizable, stating: “Much progress remains to be made in our Nation’s continuing struggle against racial isolation. In striving to achieve our historic commitment to creating an integrated society. . . .we must remain wary of policies that reduce homeowners to nothing more than their race. But since the passage of the Fair Housing Act of 1968 and against the backdrop of disparate-impact liability in nearly every jurisdiction, many cities have become more diverse.” (Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc. (U.S. Sup. Ct.; June 25, 2015) ___U.S.___ [135 S.Ct. 2507, 192 L.Ed.2d 514].)

Obamacare Upheld.

Virginia residents challenged an Internal Revenue Service final rule implementing a premium tax credit provision, section 36B of the Patient Protection and Affordable Care Act, which authorized tax credits not only for purchases of state-established health insurance exchanges, but also purchases on exchanges established by the federal government if States did not establish exchanges. The United States Supreme Court upheld the Affordable Care Act’s tax provision, stating: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.” (King v. Burwell (U.S. Sup. Ct.; June 25, 2015) ___U.S.___[135 S.Ct. 2480, 192 L.Ed.2d 483].)

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 ( and Don Fischer ( Emil to Don Fischer Email to Jeffrey Dasteel Internet Games Just Like “One-Armed Bandits” [Slot Machines] & Violate California Law.

Internet cafes offer devices that resemble traditional casino-style slot machines in some ways and offer users the chance to win sweepstakes prizes, but because they employ modern technology, the devices differ from traditional slot machines in some ways. Pursuant to Penal Code section 330b, slot machines are illegal in California. In relevant part, the statute defines a slot machine as a game wherein “the user may receive or become entitled to receive any piece of money, credit, allowance, or thing of value, or additional chance or right to use the slot machine or device, or any check, slug, token, or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance, or thing of value, or which may be given in trade, irrespective of whether it may, apart from any element of hazard or chance or unpredictable outcome of operation, also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value.” The Supreme Court of California held certain internet games come within the statutory definition of a slot machine and violate California law. (People ex rel. Green v. Grewal (Cal. Sup. Ct.; June 25, 2015) 61 Cal.4th 544 [189 Cal.Rptr.3d 686, 352 P.3d 275].)


A prison inmate is a Muslim and a member of the Nation of Islam, a religious organization. His religious beliefs forbid him from consuming or handling pork. Prison officials ordered the inmate to cook pork loins as part of his kitchen duties. The Ninth Circuit held prison employees violated the inmate’s clearly established right to avoid handling pork on the basis of his religious beliefs, and that the employees were not entitled to qualified immunity for their conduct. With regard to the inmate’s argument the prison’s method of cleaning the cooking grills left pork residual on the grills, the appeals’ court said the issue was moot because the inmate had already been released, but “even assuming that [the inmate] has raised an issue of fact as to whether the grill-cleaning method resulted in the grills being contaminated by Islamic standards or violations of Department regulations, he has failed to show the prison’s grill-cleaning method imposed a substantial burden on his religious exercise.” (Jones v. Williams (Ninth Cir.; June 26, 2015) 791 F.3d 1023.)

Transgender Inmate.

Plaintiff is a transgender inmate of a California prison who contends prison officials violated the Eighth Amendment’s through deliberate indifference to her [inmate used to be named Philip but is now known as Mia] serious medical needs. The inmate says she suffers from severe gender dysphoria for which sexual reassignment surgery [SRS] is the medically necessary treatment, but that prison officials refuse to provide the surgery. The trial court dismissed the case for failure to state a cause of action. The Ninth Circuit said “deliberate indifference to the serious medical needs of an inmate is cruel and unusual punishment under the Eighth Amendment.” The appeals court noted the inmate cited repeated episodes of attempted self-castration despite continued hormone treatment. The appeals court reversed, stating plaintiff alleges prison officials recklessly disregarded an excessive risk to her health by denying SRS solely on the recommendation of a physician’s assistant with no experience in transgender medicine. (Rosati v. Igbinoso (Ninth Cir.; June 26, 2015) 791 F.3d 1037.)

Same-Sex Couples Have A Right To Marry & A Right To Have Marriage Recognized By Other States.

The United States Supreme Court held the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Chief Justice Roberts, in his dissent joined by Justices Scalia and Thomas wrote: “But this court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.” Justice Scalia, in his dissent joined by Justice Alito wrote: “Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best.” Justice Thomas, in his dissent joined by Justice Scalia wrote: “The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built.” Justice Alito, in his dissent joined by Justices Scalia and Thomas wrote: “For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.” (Obergefell v. Hodges (U.S. Sup. Ct.; June 26, 2015) ___U.S.___ [135 S.Ct. 2584, 192 L.Ed.2d 609].)

Prisoners Did Not Identify Alternative Method Of Execution, So Relief Denied.

Prisoners sentenced to death in Oklahoma contended the method of execution used by the State violates the Eighth Amendment because it creates an unacceptable risk of severe pain. They argue that Midazolam, the first drug employed in the State’s three-drug protocol, fails to render a person insensate to pain. The United States Supreme Court denied relief to the prisoners, stating the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims. (Glossip v. Gross (U.S. Sup. Ct.; June 29, 2015) ___U.S.___ [135 S.Ct. 2726, 192 L.Ed.2d 761].)

Gerrymandering (continued)

In 2000, Arizona voters adopted an initiative aimed at ending the practice of gerrymandering and improving voter and candidate participation in elections. The electorate voted to remove redistricting authority from the Legislature and vest that authority with an independent commission. The Legislature challenged the redistricting map the Commission adopted for 2012. In upholding the use of an independent commission to draw electoral maps, the United States Supreme Court held the Arizona Legislature, having lost authority to draw congressional districts, has standing to contest the constitutionality of the proposition, but that lawmaking power in Arizona includes the initiative process. (Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n (U.S. Sup. Ct.; June 29, 2015) ___U.S.___ [135 S.Ct. 2652, 192 L.Ed.2d 704].)

Stipulation To Continue Trial Past The Five-Year Statute.

A minor was injured by a falling tree branch in a park and sued a City. Trial was set for January 14, 2013, and on January 8, 2013, the parties entered into a written stipulation to continue the trial to October 28, 2013. On October 14, 2013, the parties entered into a second stipulation to continue the trial to June 16, 2014. However, the five-year deadline for bringing the case to trial was due to expire on December 3, 2013. Thus, on January 6, 2014, the City moved to dismiss the action pursuant to the five-year statute [Code of Civil Procedure sections 583.310 and 583.360]. The trial court dismissed the action. Noting that Code of Civil Procedure section 583.310 states, “the policy favoring the rights of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter,” the Court of Appeal reversed. (Munoz v. City of Tracy (Cal. App. Third Dist.; June 30, 2015) 238 Cal.App.4th 354 [189 Cal.Rptr.3d 590].)

Court Refused To Accept Dismissal Of Appeal, Stating: "The Lack Of Civility Demonstrated In This Case Is A Matter Of Public Interest."

Two paragraphs of the opinion best describe what happened: “We find FCI’s conduct with respect to this entire case demonstrative of a particularly nasty type of scorched earth tactics. A purportedly stolen hard drive, which was placed in the hands of defendants solely for litigation purposes, has resulted in an attempt to disqualify counsel and two efforts to depose counsel in the underlying case, a police report, complaints to the State Bar of California, and this entirely derivative and unmeritorious second lawsuit. FCI’s overreach does not suggest zealousness or righteousness, but a calculated effort to undermine the parties in the underlying case by turning their attorneys into fellow defendants. [¶] . . . [¶]Less than 48 hours prior to oral argument, the parties notified us they had reached a settlement. The court, however, declines the parties’ request to dismiss the appeal. This is a particularly egregious SLAPP, filed against defendants for the sole 'crime' of representing their clients in the underlying action. The lack of civility demonstrated in this case is a matter of public interest. Moreover, while we cannot be certain, it appears that FCI deliberately decided to keep this action pending until the last possible moment in order to avoid the opinion we write today. We therefore decide in defendants' favor and publish this case as an example to the legal community of the kind of behavior the bench and the bar together must continually strive to eradicate.” (Finton Construction, Inc. v. Bidna & Keys, APLC (Cal. App. Fourth Dist., Div. 3; June 29, 2015) 238 Cal.App.4th 200 [190 Cal.Rptr.3d 1].)

Death Knell Doctrine Does Not Apply When A PAGA Cause Of Action Remains.

It is well established under California law that an order denying a motion to certify all class claims leaving only the named plaintiff’s individual claims in the trial court is an appealable order under the “death knell” doctrine, because absent immediate review, the plaintiff would have no financial incentive to pursue his or her case to final judgment just to preserve the ability to appeal the denial of the plaintiff’s class certification motion. Here, the trial court denied the class certification motion, but still remaining is plaintiff’s action under the Private Attorney General Act of 2004 [PAGA; Labor Code section 2698]. On appeal, defendants argued the rationale for applying the “death knell” doctrine is inapplicable because under PAGA plaintiff is seeking damages for herself as well as current and former employees. The Court of Appeal dismissed plaintiff’s appeal “because the PAGA claims remain in the trial court and the ‘death knell’ doctrine does not apply under these circumstances.” (Munoz v. Chipotle Mexican Grill, Inc. (Cal. App. Second Dist., Div. 1; June 30, 2015) 238 Cal.App.4th 291 [189 Cal.Rptr.3d 134].)

Human Guinea Pigs.

From the inception of the U.S.’s chemical weapons program during World War I until the mid-1970s, the United States military conducted chemical and biological weapons experiments on human subjects, and tens of thousands of U.S. armed service members were intentionally exposed to a range of chemical and biological agents. In this class action, plaintiffs are veterans’ organizations and individuals who were subjects in these experiments seeking declaratory and injunctive relief against the Department of Defense [DOD], the Army, the Central Intelligence Agency [CIA], and the Department of Veterans Affairs [VA]. Plaintiffs contend the Army has unlawfully failed to notify test subjects of new medical and scientific information relating to their health as it becomes available. They further contend the Army has unlawfully withheld medical care and diseases or conditions proximately caused by their exposures to chemicals during experiments. The Ninth Circuit Court of Appeals agreed with the federal trial court that under Army Regulation 70-25 the Army has an ongoing duty to provide former test subjects of relevant new health information as it becomes available, and that the Army has an ongoing duty to provide medical care. The appeals court reversed the trial court with regard to its denial of relief on the ground the VA provides medical care that duplicates the care the Army is obligated to provide, and stated relief should not have been denied on that basis. (Vietnam Veterans of Am. v. CIA (Ninth Cir.; June 30, 2015) 791 F.3d 1122.)

Pulling Strings.

The son of the former Speaker of the California State Assembly aided in the stabbing and killing of a young man near the campus of San Diego State University in October 2008. He was charged with murder and pled guilty to voluntary manslaughter on the eve of trial, and was sentenced to 16 years in prison. On Governor Schwarzenegger’s last day in office, he exercised his executive clemency power pursuant to Article V, § 8(a) of the California Constitution and reduced the sentence to seven years, a complete surprise to the victim’s family and the prosecuting district attorney. An action brought under the Victims’ Bill of Rights Act of 2008 sought to invalidate the clemency. That Bill of Rights aka Marsy’s Law mandates notice to victims and an opportunity to be heard at “parole or other post-conviction release proceedings” before prisoners obtain early release from prison. Both the trial and appellate courts upheld the award of clemency, albeit reluctantly. The Court of Appeal stated: “We are compelled to conclude that, while Schwarzenegger’s conduct could be seen as deserving of censure and grossly unjust, it was not illegal. Marsy’s Law, despite its obviously expansive protection of victims’ rights does not restrict the executive’s clemency powers under California Constitution.” (Santos v. Brown (July 1, 2015) 238 Cal.App.4th 398 [189 Cal.Rptr.3d 234].)

Jury Trial For Claim Of Express Indemnity.

Following summary judgments and settlements in litigation resulting from severe injuries in a hotel swimming pool, the only issues remaining were those raised in a cross-complaint brought by a party and its insurance company against the pool company to recover the amount it spent on the litigation based on a claim of express indemnity. The trial court awarded the amounts sought by the insured and insurer against the pool company. On appeal, the pool company contended the cross-complaint was time-barred under Code of Civil Procedure section 337.1, subdivision (a), [4 yr. statute of limitations for design or improvements on real property], but the Court of Appeal held Code of Civil Procedure section 337.1, subdivision (a), does not apply to claims for express indemnity. The pool company also contended that, on balancing the equities, the insurance company should bear the loss, but the appellate court found the trial court did not abuse its discretion. The pool company’s last contention on appeal was that the trial court erred by denying it a jury trial on its claim for express indemnity, and this time the appellate court agreed. The matter was remanded for further proceedings. (Valley Crest Landscape Development, Inc. v. Mission Pools of Escondido, Inc. (Cal. App. Fourth Dist., Div. 3; July 2, 2015) 238 Cal.App.4th 468 [189 Cal.Rptr.3d 259].)

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, 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., Inc. (Ninth Cir.; July 6, 2015) 792 F.3d 1070.)

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, Administrative Assistant: Ana Castillo, 415-538-2071,"Rules Are For Children. This Is War, And In War The Only Crime Is To Lose," — Joe Abercrombie.

During the trial of a personal injury action, defense counsel asked questions in clear violation of the trial court's in limine orders. The trial court sustained each of plaintiff counsel's objections, but defense counsel continued to violate the in limine orders. The Court of Appeal reversed the judgment in favor of the defendant, stating: "Because of the cumulative effect of [defense counsel's] misconduct we must reverse the judgment [defense counsel] obtained on behalf of her client…while [the trial judge] showed the patience of Job—usually a virtue in a judge—that patience here had the effect of favoring one side over the other. He allowed [defense counsel] to emphasize irrelevant and inflammatory points concerning the plaintiff’s character so often that he effectively gave [defendant] an unfair advantage. Imagine a football game in which the referee continually flagged one team for rule violations, but never actually imposed any yardage penalties on it. That happened here and requires reversal." (Martinez v. Department of Transportation (Cal. App. Fourth Dist., Div. 3; July 7, 2015) 238 Cal.App.4th 559 [189 Cal.Rptr.3d 325].)

Summary Judgment Reversed On Issue Of Gross Negligence In Action Against Fitness Facility.

Plaintiff suffered a traumatic brain injury when a cross-trainer cable struck her in the head at a 24-Hour Fitness, the defendant. Defendant moved for summary judgment, arguing that the written release of liability in the membership agreement was a complete defense to plaintiff’s claims for negligence and premises liability. As to the products liability claim, 24 Hour argued it was not subject to liability because it was a service provider and not in the chain of distribution. With regard to gross negligence, 24 Hour argued plaintiff could not show extreme departure from any ordinary standard of care because it employed a technician to routinely inspect and perform preventative maintenance on the equipment. For several reasons, the appellate court concluded there is a triable issue of fact as to whether or not 24 Hour was grossly negligent; those reasons include “whether failure to comply with fitness equipment owner’s manual constituted an extreme departure from the ordinary standard of care.” Summary judgment was reversed. The opinion also concludes the trial court erred in denying plaintiff’s request for a continuance of the motion. (Chavez v. 24 Hour Fitness USA, Inc. (Cal. App. Sixth Dist.; July 8, 2015) 238 Cal.App.4th 632 [189 Cal.Rptr.3d 449].)

Parties Jointly And Severally Liable On An Obligation May Be Sued In Separate Actions.

The California Supreme Court clarified that California law permits separate actions against parties who are jointly and severally liable, stating: “Although long-standing case law has found separate actions permissible, the Court of Appeal here held that a second suit is barred after entry of judgment against one of the contracting parties. The Court reasoned that a breach of contract invades a single primary right, and the plaintiff could not split its breach of contract cause of action into multiple claims. This reasoning was erroneous because joint and several liability does not implicate the ‘primary rights’ doctrine.” (DKN Holdings LLC v. Faerber (Cal. Sup. Ct.; July 13, 2015) 61 Cal.4th 813 [189 Cal.Rptr.3d 809, 352 P.3d 378].)

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