Untitled Document

Litigation Update

Litigation Section News: November 2014

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

Unloading Injured Passenger Constitutes "Use" Within Meaning Of Insurance Code Section 11580.1.

A passenger in a car that stopped at the scene of an automobile collision feared a person might be in danger of being further injured in an explosion because the wrecked car was smoking and leaking fluid. She grabbed the person inside and physically removed her from the car. The woman who was removed from the wrecked car suffered severe spinal injuries and became paraplegic. She sued the woman who removed her from the wrecked car. The would be rescuer was insured under a Package Policy issued by Encompass Insurance Company, which included car insurance, homeowners insurance and personal excess liability insurance. Encompass accepted the tender and assumed responsibility for its insured’s defense. The insured, that is, the would be rescuer, also tendered her defense to her car insurance company, Mid-Century Insurance Company, and to the car insurer of the driver of the car in which she was a passenger when they stopped at the scene of the accident, Coast National Insurance Company. Both Mid- Century and Coast rejected the tender. The present action is one in which Encompass sued both Mid-Century and Coast after it settled the underlying action. The federal district court entered summary judgment in favor of Mid-Century and Coast. The relevant language in both policies is required by Insurance Code Section 11580.1: “The term ‘use’ when applied to a motor vehicle shall only mean operating, maintaining, loading, or unloading a motor vehicle.” The Ninth Circuit reversed, stating: "We conclude that unloading an injured passenger from an automobile constitutes ‘use’ of that automobile, under California law." (Encompass Insurance Co. v. Coast National Insurance Co. (Ninth Cir.; August 13, 2014) 764 F.3d 981.)

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 calbar.ca.gov/members. Link to My State Bar Profile If A Tree Falls On A House And No One Is Around to Prune It, Does It Make A Lawsuit?

During a windstorm, a tree owned by a City fell on a residence. As a result of the damage caused to the house, the homeowner’s insurer paid benefits for the damage under the homeowner’s insurance policy. The insurer then sued the City for inverse condemnation and nuisance based on the damages caused by the tree. [¶] The City now seeks a writ of mandate challenging the trial court’s order denying summary adjudication with respect to these causes of action. The City argues that summary adjudication should have been granted because (1) the subject tree was not a work of public improvement such that the City may be held liable for inverse condemnation, and (2) the insurer failed to submit any evidence that the City was negligent such that the City may be held liable for nuisance. In affirming, the appellate court stated: “Since there was evidence demonstrating that the City’s forestry program, of which the subject tree is a part, is the result of (1) a deliberate governmental action (2) serving a public purpose, summary adjudication of the inverse condemnation cause of action was properly denied.” and “That the City pruned the tree in 2005 and 2010 may potentially show that the City fulfilled its duty of care, however, to reach this conclusion, the City must first present some evidence establishing the nature and extent of its duty of care. As the City failed to do so, it did not meet its burden of showing it had fulfilled its duty of care with respect to [the] property. Accordingly, the burden never shifted to the insurer to raise a triable issue of fact as to whether the City had been negligent in its maintenance of the tree.” (City of Pasadena v. Sup. Ct. (Mercury Casualty Company) (Cal. App. Second Dist., Div. 3; August 14, 2014) 228 Cal.App.4th 1228, [176 Cal.Rptr.3d 422].)

Denial Of Class Certification Motion Reversed.

In opposing class certification in a wage and hour case involving the potential of 53 class members, defendant produced 38 settlement agreements with putative class members, most of which provided they “released” defendant “from any and all liability” as well as 24 arbitration agreements with putative class members. The trial court found that a proposed class was not sufficiently numerous because a majority of the putative class members had entered into releases and arbitration agreements with defendant. In reversing the appellate court stated: “We find that the order must be reversed on the following grounds: (1) the court’s analysis of the “numerosity” factor was incorrect; (2) the court improperly considered the merits of the defendant’s affirmative defenses; and (3) the court denied the plaintiffs due process by failing to grant them an adequate opportunity to perform discovery on and brief certification issues.” (Hendershot v. Ready to Roll Transportation, Inc. (Cal. App. Second Dist., Div. 3; August 14, 2014) 228 Cal.App.4th 1213, [175 Cal.Rptr.3d 917].)

Arbitration Agreement Just A Click Away.

Pursuant to an arbitration clause located on a "Terms of Use" hyperlink on its website, the national bookseller defendant petitioned to compel arbitration in a class action alleging deceptive business practices. The district court denied the petition, finding plaintiff did not unambiguously manifest assent to the arbitration provision contained on the website. The Ninth Circuit agreed with the trial judge, holding plaintiff had insufficient notice of the terms of use and thus, did not enter into an agreement to arbitrate his claims. (Nguyen v. Barnes & Noble Inc. (Ninth Cir.; August 18, 2014) 763 F.3d 1171.)

Jury Award Of Economic Damages Reversed.

In a whistleblower retaliation lawsuit brought by a deputy sheriff under Labor Code section 1102.5 (b), the jury returned a special verdict in the deputy’s favor, awarding $4,506,015 in damages, $2,006,015 in lost earnings ($806,041 in backpay and $1,199,974 in future lost income), and $2,500,000 in non-economic damages. On appeal, the County contended there were numerous errors, too long to list here. The appellate court affirmed in part and reversed the award of damages in part, stating there is no substantial evidence to support the jury’s award of economic damages. Regarding backpay, the appellate court stated the County established the deputy took medical leave before he was terminated. Regarding future lost wages, the appellate court found the award was speculative “because there is no evidence to show with a reasonable degree of medical certainty that had [the deputy] undergone disk fusion surgery he could have returned to work and performed the duties of a deputy sheriff.” (Hager v. County of Los Angeles (Cal. App. Second Dist., Div. 3; August 5, 2014) As mod. Aug. 19, 2014) 228 Cal.App.4th 1538, [176 Cal.Rptr.3d 268].)

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"Religion Is Like A Pair Of Shoes…Find One That Fits For You, But Don’t Make Me Wear Your Shoes." - George Carlin

In California, a person with developmental disabilities has the same legal rights and responsibilities guaranteed all other individuals by the United States Constitution, including “a right to religious freedom and practice.” (Welfare and Institutions Code section 4502 [Lanterman Act].) Plaintiffs are the owners six-bed residential community care facility. The defendant is a regional center established pursuant to the Lanterman Act. One of plaintiff’s patients, a disabled adult, expressed a desire to attend Jehovah’s Witness church services. Defendant notified plaintiffs they were to accompany the patient to church services. Sounds okay, right? Well, it turns out employees of the facility charged with taking the patient to the services refused to do it because attendance would be in contradiction to their own religious beliefs and practices. The facility requested a legal opinion from the California Community Care Licensing Division “as to whether Plaintiff [] would need to force its employees to attend worship services with clients.” The licensing division did not provide a legal opinion, and plaintiffs did not take the patient to services. The State of California, through the action of defendant regional center, cited plaintiffs for violating obligations to the patient. As a result, the facility no longer receives patient referrals from the State and “are now contemplating bankruptcy.” In the present action, plaintiffs allege deprivation of the right to freedom of religion under the First Amendment and unlawful retaliation in response to assertion of their right to freedom of religion under the First Amendment under 42 U.S.C. § 1983. A federal trial judge granted defendant’s motion to dismiss with prejudice, concluding plaintiffs failed to state a claim. The Ninth Circuit affirmed, commending the trial judge for his “thoughtful and legally correct approach to this case.” (Williams v. State of California (Ninth Cir.; August 19, 2014) 764 F.3d 1002.)

Court Erred In Denying Fee Award Because Memorandum Of Costs Not Also Filed.

A settlement agreement resolving a wrongful termination action required the former employees to return certain of the employer’s property and that the employees not disclose certain information. When some documents were not returned and some disclosures were made, the former employer proceeded to arbitration under the terms of the settlement agreement, and the arbitrator awarded the employer $70,000 in damages, $297,000 in attorney fees and $88,034.69 in costs and expenses against the employees’ lawyer. [An unpublished April 28, 2014 opinion on the same case states that the lawyer used some of the documents, which were supposed to be returned, in another deposition regarding a different plaintiff’s action.] After the superior court confirmed the award and entered judgment in favor of the employer, the employer moved for an award of the additional attorney fees incurred in the motion to confirm the arbitration award. The superior court denied the award of fees sought under Civil Code section 1717 on the ground the moving party filed no memorandum of costs in seeking the award. The appellate court reversed, stating: “[W]e hold that a party seeking attorney fees pursuant to Civil Code section 1717 need not, in addition to filing a noticed motion, file a memorandum of costs.” (Kaufman v. Diskeeper Corporation (Cal. App. Second Dist., Div. 4; August 21, 2013) 229 Cal.App.4th 1, [176 Cal.Rptr.3d 757].)

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While employed at a hospital, plaintiff complained the hospital “was employing as health care professionals individuals that were not licensed and or certified. [Plaintiff] also complained to [the hospital] that [the hospital] employed health care professionals who had not properly completed their competencies.” She was thereafter terminated, and she alleges it was as a result of her complaints. Health and Safety Code section 1278.5 prohibits a health facility from retaliating against any of its employees for complaining about the quality of care or services provided by the facility. The statute further provides that an employee who has been improperly retaliated against “shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law.” The trial court concluded plaintiff’s statutory cause of action was purely equitable, and denied her request for a jury trial. In a writ of mandate proceeding, the appellate court granted extraordinary relief, stating: “[Plaintiff] allegedly suffered lost wages, emotional distress, and physical injuries, for which she seeks monetary compensation. The gist of [plaintiff’s] action is the statutory violation; although it could also be viewed as an action for breach of a term implied (by statute) into her employment contract, or an action for damages for personal injury. At common law, each of these classes of actions was triable by jury.” (Shaw v. Sup. Ct. (THC-Orange County, Inc.) (Cal. App. Second Dist., Div. 3; August 21, 2014) 229 Cal.App.4th 12, [177 Cal.Rptr.3d 203].)

Service Of Process On Foreign Corporation.

After a plane crashed in Cuba, killing everyone on board, the family of one of the decedents sued the French corporation which designed and manufactured the airplane in federal court in California. Plaintiffs served the summons and complaint at the corporate headquarters in France, and the corporation moved to dismiss for lack of personal jurisdiction. After the trial court permitted plaintiff to conduct limited jurisdictional discovery, and prior to the scheduled hearing, plaintiff served copies of the summons and complaint on the corporation’s vice-president while he was attending a conference in California on the corporation’s behalf. The district court granted the motion to dismiss. The Ninth Circuit affirmed, stating: “We hold that Burnham [Burnham v. Sup. Ct. (1990) 495 U.S. 604, [110 S.Ct. 2105, 109 L.Ed.2d 631], does not apply to corporations. A court may exercise general personal jurisdiction over a corporation only when its contacts ‘render it essentially at home’ in the state. . . Because [the corporation here] is not otherwise ‘essentially at home’ in California, and service on its corporate officer did not render it so, we affirm the district court.” (Martinez v. Aero Caribbean (Ninth Cir.; August 21, 2014) 764 F.3d 1062.)

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 Arbitrator's Disclosure Obligations and Motion to Vacate.

In Dornbirer v. Kaiser Foundation (2008) 166 Cal.App.4th 831, [83 Cal.Rptr.3d 116], the arbitrator in a dispute between a patient and her medical provider (Kaiser) disclosed his prior participation in several matters involving Kaiser and its legal counsel. The disclosure statement omitted multiple pieces of information required under Code of Civil Procedure section 1281.9, including the number of times the arbitrator had presided over arbitrations in which Kaiser was a party, as well as the dates, results, and names of all attorneys involved in those arbitrations. The patient did not make further inquiry into these omissions, nor did she serve a disqualification notice or demand pursuant to section 1281.91. The Dornbirer court held that although an arbitrator has a duty to comply with 1281.9, the disclosure of past or present relationships constitutes inquiry notice of the potential for bias and does not require an arbitration award to be vacated “when the arbitrator has generally disclosed the grounds for disqualification.” Then, in 2010, the Legislature added section 1281.85c), which provides that the ethics requirements and standards applicable to arbitrators “are nonnegotiable and shall not be waived.” In the present wrongful termination matter, the arbitrator is a presiding judge who was first suggested by the defense, and who ruled in favor of the defense. Plaintiff asked the superior court to vacate the arbitration award on the ground the arbitrator failed to comply with the mandatory disclosure requirements. Plaintiff’s counsel declared: “When I did not receive any Code of Civil Procedure 1281.9 disclosure from him, I trusted that this meant he had nothing to disclose.” The superior court granted plaintiff’s motion to vacate the award. The appellate court granted the defendant employer’s petition for writ of mandate, stating: “The question before us is whether the forfeiture principles stated in Dornbirer remain viable after the enactment of section 1281.85(c). We conclude that they do.” The matter was remanded to the trial court “to determine the factual posture of the case and whether the principles as stated in Dornbirer apply to those facts,” while, at the same time stating: “While it is clear Judge Broadman willfully failed to comply with his disclosure obligations, our opinion should not be construed as condoning or excusing his behavior.” (United Health Centers v. Sup. Ct. (Vradenburg-Haworth) (Cal. App. Fifth Dist.; August 25, 2014) 229 Cal.App.4th 63, [177 Cal.Rptr.3d 214].)

Federal Statute Prevents Man From Purchasing A Firearm After Being Convicted Of A Misdemeanor In California.

A man pled nolo contendere to battery involving inflicting corporate punishment on his spouse in violation of Penal Code section 242, and was placed on two years’ probation in 1996. In 2008, he applied to be a reserve deputy sheriff. A background check revealed the 1996 conviction and it was considered to be a misdemeanor crime of domestic violence, or an MCDV. It turns out that Congress passed 18 U.S.C. § 922(g)(9) which prohibits the possession of firearms by those convicted of an MCDV, which is defined in the federal act as: (1) a misdemeanor under state law, (2) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, and (3) is committed by the victim’s current or former spouse. (18 U.S.C. § 921(a)(33)(A).) So, he didn’t get the position, and he was not permitted to purchase a firearm in California in 2011 either. The man filed a petition for extraordinary relief seeking an order directing the State of California to determine his 1996 conviction was not an MCDV. The superior court issued a writ of mandate after concluding the federal statute requires the violent use of force, physical force that is not de minimis, against the body of another. The State of California appealed, and the appellate court concluded “a Penal Code section 242 misdemeanor conviction has, as an element, the use of physical force for purposes of the prohibition dictated by section 922(g)(9).” (James v. State of California (Cal. App. Fifth Dist.; August 26, 2014) 229 Cal.App.4th 130, [176 Cal.Rptr.3d 806].)

Wrongful Termination Cause Of Action Adequately Pled, But Not IIED.

In a wrongful termination action, the trial court sustained the demurrer without leave to amend. With regard to the wrongful termination cause of action, itself, the appellate court found plaintiff adequately pled allegations he was fired in violation of public policy for complaining to management about fraudulent warranty repair claims on automobiles being submitted to the manufacturer, and reversed the sustaining of the demurrer. As to plaintiff’s cause of action for intentional in fliction of emotional distress, the appellate court agreed with the trial court that plaintiff failed to allege extreme or outrageous conduct. (Yau v. Santa Margarita Ford, Inc. (Cal. App. Fourth Dist., Div. 3; August 26, 2014) 229 Cal.App.4th 144, [176 Cal.Rptr.3d 824].)

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.govLimited Civil Case For Debt Collection Reversed.

A purchaser of a delinquent debt, the plaintiff, filed an action against the debtor, defendant. In limited civil cases, under Code of Civil Procedure section 98, documentary evidence may be introduced at trial under certain circumstances, including that the affiant is located within 150 miles of the place of trial, and, thus, available for service of process. Plaintiff filed a declaration stating its intention to introduce documentary evidence in lieu of direct testimony. The declaration states: “I am currently located in Denver, Colorado, therefore I authorize service to be accepted on my behalf within a reasonable period of time prior to trial in order to allow for necessary travel. Service will be accepted on my behalf at the office of Plaintiff’s attorney located at Mandarich Law group, LLP, 6301Owensmouth Ave. Suite 850, Woodland Hills, California, 91367, which is within 150 miles of the place of trial.” The trial court admitted plaintiff’s documentary evidence over objection, and judgment was entered for plaintiff. On appeal, defendant contends the trial court erred in admitting the section 98 documents. In reversing, the appellate division of the superior court stated: “If the legislature had intended to allow long distance service without complying with section 1987, or making a third or hybrid type of service permissible, they certainly know how to say so.” (CACH, LLC v. Rodgers (Cal. Sup. Ct., App. Div. Ventura; August 26, 2014) 229 Cal.App.4th Supp. 1, [176 Cal.Rptr.3d 843].)

"Third World Dentistry" Remark Not Sufficient For National Origin Discrimination.

Plaintiff is an Egyptian dentist who was enrolled in a two-year dental program at the University of the Pacific. Three months before graduation, the dentist was unsuccessful in inserting a crown. The head of the restorative dentistry program remarked, within hearing of faculty, students and patients, that the dentist’s clinical work was "Third World Dentistry." Shortly thereafter, a supervisor called the dentist "T.W." The dentist was required to continue schooling for an additional quarter after graduation, at no extra cost. Instead of going to the required remedial schooling, the dentist took a leave of absence and filed this action contending national origin discrimination under the Civil Rights Act of 1964, 42 U.S.C. § 2000d. The trial court granted summary judgment to the university, and the Ninth Circuit affirmed, stating the dentist's claim fails because, under the McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, [93 S.Ct. 1817, 36 L.Ed.2d 668], framework for disparate treatment, the dentist did not establish a prima facie case of national origin discrimination. (Rashdan v. Geissberger (Ninth Cir.; August 26, 2014) 764 F.3d 1179.)

Another Appellate Decision Stating CCP § 340.6 (The Legal Malpractice S/L) Does Not Apply To Malicious Prosecution.

In the underlying action, a company sued some former employees for misappropriation of trade secrets, and the former employees prevailed. Thereafter, the former employees brought the instant action for malicious prosecution against the law firm which represented the company in the underlying action. The law firm’s motion to strike the complaint under CCP § 425.16 was granted because the former employees filed their action was untimely under the legal malpractice statute of limitations found in CCP § 340.6. The appellate court reversed, agreeing with the former employees’ contention that 340.6 is not the appropriate statute of limitations for a malicious prosecution action. (Parrish v. Latham & Watkins, August 27, 2014.) 229 Cal. App. 4th 264; 176 Cal. Rptr. 3d 596 NOT CITABLE—SUPERSEDED BY GRANT OF REHEARING

Previously we reported:

As The Pizza Turns.

Sixteen-year-old employee of a Domino’s pizza franchise filed a FEHA [Fair Employment and Housing Act, Government Code section 12940] alleging she was sexually harassed at her job by her manager. The franchise filed for bankruptcy relief and Domino’s Pizza, Inc. filed a motion for summary judgment with evidence that “Domino’s was not [the alleged harasser’s] employer and was not involved in the training, supervision or hiring of any employees” of the franchise, and the franchise is responsible for “supervising and paying the persons who work at the store.” In opposition, the plaintiff attached the deposition of the manager of the franchise which said that Domino’s “area leader” twice ordered him to fire employees of the franchise. The trial court granted the MSJ. The appellate court reversed, stating “a franchisor’s actions speak louder than words in the franchise agreement.” (Patterson v. Domino’s Pizza, LLC (Cal. App. Second Dist., Div. 6; June 27, 2012) 207 Cal.App.4th 385, [143 Cal.Rptr.3d 396].) The California Supreme Court granted review and reversed the judgment of the Court of Appeal, stating: “We granted review to address the novel question dividing the lower courts in this case: Does a franchisor stand in an employment or agency relationship with the franchisee and its employees for purposes of holding it vicariously liable for workplace injuries allegedly inflicted by one employee of a franchisee while supervising another employee of the franchisee? The answer lies in the inherent nature of the franchise relationship itself. . . . . Plaintiff highlights the franchisee‘s testimony that a representative of the franchisor said the harasser should be fired. But, consistent with the trial court’s ruling below, any inference that this statement represented franchisor ‘control’ over discipline for sexual harassment complaints cannot reasonably be drawn from the evidence. The uncontradicted evidence showed that the franchisee imposed discipline consistent with his own personnel policies, declined to follow the ad hoc advice of the franchisor‘s representative, and neither expected nor sustained any sanction for doing so.” In her dissent, Justice Werdegar stated: “To emphasize contractual language intended to shield a franchisor from employment-related claims over evidence the franchisor in practice retained and exercised the power to terminate the franchisee’s employees tends to undermine FEHA’s goals by permitting the franchisor, in effect, to opt out of the statutory duties of a California employer.”(Patterson v. Domino’s Pizza, LLC (Cal. Sup. Ct.; August 28, 2014) 60 Cal.4th 474, [333 P.3d 723, 177 Cal.Rptr.3d 539].)

Defendant's Sexual Orientation Not Relevant; Conviction Reversed.

The woman defendant in a criminal trial was charged with molesting a six-year-old girl she babysat. She was convicted and sentenced to 16 years in prison. During closing arguments, the prosecutor repeatedly urged the jury to consider the defendant’s sexual orientation in deciding the truth of the charges against her. In reversing her conviction, the appellate court stated: "We do not believe [defendant's] sexual orientation was relevant to any issue in this case." (The People v. Garcia (Cal. App. Fourth Dist., Div. 3; August 28, 2014) 229 Cal.App.4th 302, [177 Cal.Rptr.3d 231].)

Grant Of Summary Judgment Reversed.

Police officers stopped a car for a broken tail light after being informed the driver was a methamphetamine-selling gang member. They shouted for the driver to get on the ground as he was emerging from the vehicle. According to four of the officers, he ignored their commands and instead reached for the waistband of his pants. Fearing that he was reaching for a gun, all five officers opened fire, firing about twenty shots in two to three seconds. After they ceased firing, the officers approached the body to find it tangled in a seat belt and hanging from it. No weapon was found on the body, but a nine-millimeter was later recovered from the passenger seat. In reversing the grant of summary judgment in favor of the City, the Ninth Circuit stated: “Nobody likes a game of ‘he said, she said,’ but far worse is the game of ‘we said, he’s dead.’ Sadly, this is too often what we face in police shooting cases like this one.” (Cruz v. The City of Anaheim (Ninth Cir.; August 28, 2014) 765 F.3d 1076.)

Judges Gone Wild.

Two judges were publicly censured for sexual misconduct. An Orange County judge engaged in sexual activity in his chambers on multiple occasions. (In the matter concerning Judge Scott Steiner (Comm. On Jud. Perf.; September 2, 2014) A Kern County judge had an intimate relationship with a court clerk and resisted efforts to reassign the clerk to another courtroom. (In the matter concerning Judge Cory Woodward (Comm. On Jud. Perf.; September 2, 2014)

Award Of Attorney Fees Against Law Firm Reversed.

A law firm unsuccessfully represented a man injured in an explosion in an action against a City. After the superior court granted summary judgment to the City, it awarded the City $102,296.20 for its attorney fees and costs against both the man and the attorneys who represented him. Code of Civil Procedure section 1038 provides public entities (which, since 1983, have been constitutionally proscribed from filing malicious prosecution actions) and other specified defendants with a way to recover the costs of defending against unmeritorious and frivolous litigation. As to the law firm, the appellate court reversed, holding that Code of Civil Procedure section 1038, “does not authorize an award of fees and costs against a party’s attorney.” (Suarez v. City of Corona (Cal. App. Fourth Dist., Div. 1; August 29, 2014) 229 Cal.App.4th 325, [177 Cal.Rptr.3d 244].)

"Those Who Deny Freedom To Others Deserve It Not For Themselves." - Abraham Lincoln.

Plaintiffs are former child slaves who were forced to harvest cocoa in the Ivory Coast in West Africa, working up to 14 hours a day six days a week with only scraps of food to eat. They filed claims under the Alien Tort Statute [28 U.S.C. §1350] against American companies alleging they aided and abetted child slavery by providing assistance to Ivorian farmers. The federal trial court dismissed the action, finding plaintiffs failed to state a claim. After calling the situation a humanitarian tragedy and noting that thousands of children are forced to work without pay in the Ivorian economy, the Ninth Circuit reversed. The appeals court noted: “The allegations suggest a myopic focus on profit over human welfare drove the defendants to act with the purpose of obtaining the cheapest cocoa possible, even if it meant facilitating child slavery. These allegations are sufficient to satisfy the mens rea required of an aiding and abetting claim. . .” (John Doe v. Nestle USA, Inc. (Ninth Cir.; September 4, 2014) (As Corr. November 12, 2014) 766 F.3d 1013.)

Suit Against City Will Proceed.

Plaintiff alleged a doctor committed battery and inflicted IIED. The trial court dismissed plaintiff’s action, after concluding the Code of Civil Procedure section § 340’s one-year statute of limitations, and not the general personal injury two-year limitations period, applies. In affirming, the appellate court explained: “We must look past the labels [plaintiff] uses and examine the specific conduct [plaintiff] alleged to determine which limitations period applies. [Plaintiff] bases his lawsuit on [the doctor’s] conduct in providing professional health care by performing a preoperative checkup and administering anesthesia. [Plaintiff] does not allege any other purpose for the challenged conduct. Because his claims constitute a challenge to how [the doctor] performed his professional services, [plaintiff’s] claims are based on professional negligence and barred by section 340.5’s one-year limitations period.” (Larson v. UHS of Rancho Springs, Inc. (Cal. App. Fourth Dist., Div. 3; October 2, 2014) (As mod. October 2, 2014) 230 Cal. App. 4th 336, [179 Cal.Rptr.3d 161].)

No Good Cause Shown To Continue Motion For Summary Judgment.

Code of Civil Procedure section 437c(h) provides that if it appears facts essential to justify opposition to a motion for summary judgment, upon a showing of good cause that an extension of time is needed to obtain those facts, “the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had.” The trial court here refused to continue the motion and granted summary judgment. It was undisputed that the sole negotiator of the agreement at issue in the breach of contract action was also one of the two individuals who submitted declarations in support of summary judgment. But that person refused to appear for 5 his deposition on the grounds of the attorney-client privilege. In affirming, the appellate court said the trial court did not abuse its discretion, explaining: “This showing is not sufficient .. .to constitute good cause for a continuance. First, the mere fact that [the reluctant witness] submitted a declaration for the summary judgment motion does not establish that she possessed facts essential to [the] opposition. [The] supporting declaration merely authenticated the parties’ written correspondence and discovery responses. . . Second, [the opposing party] failed to show what specific facts it believed could be obtained . . . or how that information was essential to justify [the] opposition.” (Jade Fashion & Co. v. Harkham Industries, Inc. (Cal. App. Second Dist., Div. 7; September 8, 2014) 229 Cal.App.4th 635, [177 Cal.Rptr.3d 184].)

Court Erred In Not Considering Domestic Violence When Ordering Custody Of Children.

Without considering the effect of domestic violence restraining orders against the father or finding any significant change in circumstances, the trial court modified an earlier custody order which gave sole legal and physical custody of the children to their mother. The new order granted joint legal and physical custody to the parents. The appellate opinion discusses assertions the father committed abuse, including pulling the mother’s hair and squeezing her hand so hard as she held her car keys that her hand bled, bending her car keys, grabbing the steering wheel as she was driving, punching her, strangling her, kicking her and stomping her. The first restraining order was issued in 2005, the second in 2006, three more in 2008 and one in 2011. In reversing the new custody order, the appellate court found the trial court erred when it failed to apply the rebuttable presumption set forth in Family Code section 3044(a), that an award of custody of a child to someone who has perpetrated domestic violence within the previous five years is detrimental to the best interest of the child. (Christina L. v. Chauncey B. (Cal. App. First Dist., Div. 4; September 9, 2014) 229 Cal.App.4th 731, [177 Cal.Rptr.3d 178].)

Strict Compliance With Three-Day Pay Rent Or Quit Notice In Unlawful Detainer Action Required.

In an unlawful detainer action, the defendant argued the three-day notice to pay rent or quit was defective because it gave a web address, but not a physical address where the rent should be paid. The trial court determined Code of Civil Procedure section 1161(2) did not specifically require a physical address to be listed and entered judgment for the landlord. The appellate court stated that a valid three day pay rent or quit notice is a prerequisite to an unlawful detainer action, and that “because of the summary nature of an unlawful detainer action, a notice is valid only if the lessor strictly complies with the statutorily mandated notice requirements.” The appeals court concluded the instant notice was insufficient under the statute and reversed. (Foster v. Williams (Cal. App. Sup. Ct., L.A. County; September 9, 2014) 229 Cal.App.4th Supp. 9, [177 Cal.Rptr.3d 371].)

Conviction Reversed Because Prosecutor Was Discriminatory In Jury Selection.

A federal appellate court reversed the California state court murder conviction of a 17-year-old Hispanic boy, after concluding the prosecutor excused too many Hispanic jurors. Each side could excuse 20 potential jurors. Here, the prosecutor excused 12, and 7 of those 12 were Hispanic. The Ninth Circuit Court of Appeals concluded the prosecutor engaged in purposeful discrimination, and instructed the district court to grant the defendant’s application for a writ of habeas corpus. (Castellanos v. Larry Small, Warden (Ninth Cir.; September 9, 2014) 766 F.3d 1137.)

Victim Found To Be Unavailable To Testify.

The Sixth Amendment provides that an accused shall have the right to be confronted with witnesses against him. In this criminal case alleging child molestation, a jury deadlocked 10 to 2 in favor of conviction in the first trial. In that first trial, the victim, a kindergartener, testified and was cross-examined, but when the case was set for retrial, the court permitted the prosecutor to read back the boy’s testimony from the first trial instead of having him called again as a witness in the second trial. The trial court made the ruling after a few psychiatrists testified the boy had Asperger’s syndrome, a form of higher-functioning autism, and had been suffering mental trauma as a result of the abuse. The mental health professionals expressed beliefs that bringing the boy back to trial to talk about the abuse again would make things worse. During one therapy session, the boy remained curled up in the fetal position for the entire 45-minutes. The jury convicted defendant in the second trial. On appeal, defendant contended the trial court erred in finding the child was “unavailable” as a witness within the meaning of Evidence Code section 240(a)(3) and permitting his prior testimony to be read to the jury. The appellate court concluded substantial evidence supports the trial court’s decision to find the child unavailable as a witness in the second trial. (The People v. Scott Andrew Christensen (Cal. App. Fourth Dist., Div. 3; September 10, 2014) 229 Cal.App.4th 781, [177 Cal.Rptr.3d 712].)

Police Did Not Retain Evidence, So Charges Were Dismissed.

The trial court dismissed robbery charges against three defendants and the prosecution appealed. The night they were arrested, one of the three specifically asked the detective in charge to check the video cameras, which the detective later denied, but was impeached with an audio of the conversation. At the first opportunity, the defense lawyer asked the trial court to order relevant videos produced, but the prosecutor promised they would be preserved. They were destroyed, and it is unknown what they might have shown. The appellate court affirmed the dismissal as to two of the three defendants, the two who submitted evidence, but not as to the third defendant, stating: “Police and prosecutors are more than willing to avail themselves of technology when it is to their advantage; there must be a level playing field that gives defendants equal access to the same evidence... . While judges must act as ‘quality control’ to remedy constitutional errors, it is ultimately up to the police and prosecutors to end the failure to retain evidence or its bad faith destruction.” (The People v. Alvarez, Jr. (Cal. App. Fourth Dist., Div. 3; September 10, 2014) 229 Cal.App.4th 761, [176 Cal.Rptr.3d 890].)

Misappropriation Of Likeness: "People Will Stare. Make It Worth Their While." - Harry Winston.

Plaintiff is a company that specializes in the protection of personal image rights, and is the assignee of two models who are not parties to the action. Plaintiff sued defendant for common law and statutory misappropriation of likeness based on defendant’s unauthorized display of the models’ images in connection with advertising cosmetic medical services. The trial court granted defendant’s judgment on the pleadings, ruling a cause of action for misappropriation of likeness is not assignable. The appellate court reversed, stating, “We conclude a misappropriation of likeness claim, which concerns only the pecuniary benefits derived from the commercial exploitation of a person’s likeness, is assignable.” (Timed Out, LLC v. Youabian, Inc. (Cal. App. Second Dist., Div. 3; September 12, 2014) 229 Cal.App.4th 1001, [177 Cal.Rptr.3d 773].)

Upsetting the Apple Smart.

Plaintiff brought a class action against Apple, Inc., alleging that Apple falsely advertised iPhone 3G to be “twice as fast” as the iPhone 2G. The trial court sustained Apple’s demurrer and dismissed the action on the ground plaintiff failed to join the cellular network carrier for the iPhone 3G as a necessary party under Code of Civil Procedure, section 389, subdivision (a). In reversing, the appellate court said that plaintiff’s claim is analogous to a claim that her television gets poor reception solely because its cable input port is defective, and that her cable provider was a necessary party. The court said: “At its core, [plaintiff’s] complaint is no different from any other claim for defectively manufactured technology.” (Van Zant v. Apple, Inc. (Cal. App. Sixth Dist.; September 12, 2014) 229 Cal.App.4th 965, [177 Cal.Rptr.3d 805].)

Misconduct Means No Unemployment Insurance Benefits.

The superior court granted a writ of mandate brought by an employee of a school district who was denied unemployment benefits pursuant to Unemployment Insurance Code section 1256. The appellate court reversed the superior court’s order directing that the employee receive unemployment compensation benefits because the man committed misconduct within the meaning of 1256 which states: “An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct connected with his or her most recent work.” (Irving v. California Unemployment Insurance Appeals Board (Los Angeles Unified School District) (Cal. App. Second Dist., Div. 5; September 12, 2014) 229 Cal.App.4th 946, [177 Cal.Rptr.3d 759].)

Navy's Surveillance Information Suppressed.

A special agent of the Naval Criminal Investigative Service [NCIS] found evidence of internet activity involving child pornography and turned the information over to civilian authorities. A man was then arrested, convicted and sentenced to 18 years in prison for possessing and distributing child pornography. A federal district court refused to suppress the evidence, and the Ninth Circuit reversed, stating: “We hold that the NCIS agent’s investigation constituted improper military enforcement of civilian laws and that the evidence collected as a result of that investigation should have been suppressed.” (United States of America v. Dreyer (Ninth Cir.; September 12, 2014) 767 F.3d 826.)

Summary Judgment In Favor Of Holding Company Reversed; Trier Of Fact May Infer It Is An Employer.

A plaintiff filed a class action on behalf of himself and other certified nursing assistants for unpaid minimum wages and overtime wages. He contends defendant, a holding company with no employees, is the alter ego of a nursing facility where he worked and its “corporate veil should be pierced.” The trial court granted defendant’s motion for summary judgment, after defendant said it had no control over the nursing home or its employees. In reversing, the appellate court noted there was evidence the holding company has more than a contractual relationship with the nursing facility, in that it owns the nursing facility, having purchased it in 2009 and that it owns all of its stock. The court stated that a trier of fact could infer this evidence refutes the holding company’s claims of lack of control and responsibility. The court also noted the basis for liability is the owner’s failure to perform the duty of seeing to it that the prohibited condition does not exist. The court held: “A corporation with no employees owns a corporation with employees. If the corporation with no employees exercises some control over the corporation with employees, it also may be the employer of the employees of the corporation it owns.” (Castaneda v. The Ensign Group, Inc. (Cal. App. Second Dist., Div. 6; September 15, 2014) 229 Cal.App.4th 1015, [177 Cal.Rptr.3d 581].)

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