Litigation Update

Litigation Section News: November 2016

 • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District
 • Managing Editor, Reuben Ginsburg
 • Editor, Jessica Riggin


Table of Contents of This Issue

Evidence Gathered From Website by Expert.

In a criminal drug prosecution, the prosecutor’s expert identified the pills involved as controlled substances by comparing their appearance to photographs of pills on a website. The Court of Appeal discussed the holding in People v. Sanchez (2016) 63 Cal.4th 665, which rejected the notion that a jury understands what it means for an expert to rely upon something not for its truth. Sanchez adopted a rule: “When any expert relates to the jury case-specific out-of-court statements and treats the content of those statements as true and accurate to support the expert’s opinions, the statements are hearsay.” (Id. at p. 686.) In the instant case, the Court of Appeal held the expert’s testimony was improperly admitted hearsay and reversed the conviction. (People v. Stamps (Cal. App. 1st Dist., Div. 4, Sept. 30, 2016) 3 Cal.App.5th 988.)

CA International Arbitration Summit Advertisement. Click here!“You Never Realize How Short a Month is Until You Pay Alimony,” John Barrymore.

A husband/father earned about $1.9 million/year over a 16-year marriage that produced four children. The stipulated judgment provides for monthly child support payments of $17,366, which is higher than statutory guidelines, but one of the children is quadriplegic and requires continual care. The trial court denied the husband’s requests to modify child support and terminate spousal support. One of the stipulated provisions states: “In the event that either party seeks a modification of child support or dependent adult support in the future, said support amounts and the allocation of said support shall be reviewed de novo by the court.” In affirming the trial court’s denial of the husband’s request to modify child support, the Court of Appeal stated: “The law does not allow litigants to agree to what are in effect ‘temporary’ judgments, revisable at will.” Another provision in the stipulated judgment stated: “In the event Petitioner [wife] becomes remarried and [her] new spouse income is less than $400,000.00, Respondent’s [husband’s] total annual spousal support obligation shall be reduced by an amount equal to 45% of Petitioner’s new spouse income. If [wife’s] new spouse income is greater than $400,000.00 per year, [husband’s] spousal support obligation shall be reduced to zero. . . . In the event that [wife] remarries within 24 months of entry of this Judgment, spousal support payable to [wife] shall terminate.” Despite the fact that Family Code § 4337 normally terminates spousal support upon remarriage, the Court of Appeal affirmed because the parties had agreed to provide for continued spousal support upon remarriage. (In re Marriage of Cohen (Cal. App. 4th Dist., Div. 3, Oct. 3, 2016) 3 Cal.App.5th 1014.)

No Antideficiency Laws Protection on Loan Guaranty.

Defendant guaranteed a loan made to an affiliate in connection with the purchase of retail property. Following default on the loan and a nonjudicial foreclosure, plaintiff sought to enforce the guaranty. The trial court found defendant was protected by antideficiency laws because defendant was, in reality, the primary obligor on the loan and the loan guaranty was effectively a sham. In reversing, the Court of Appeal found no substantial evidence that defendant was a principal obligor on the loan, stating: “Rather, [defendant] itself structured the transaction and determined that its affiliate—a separate legal entity—would take out the loan and take title to the property. The trial court therefore erred in applying a sham guaranty defense and entering judgment in favor of [defendant].” (LSREF2 Clover Property 4, LLC v. Festival Retail Fund 1, LP (Cal. App. 2nd Dist., Div. 2, Oct. 6, 2016)  3 Cal.App.5th 1067.)

Physician Acted As An Independent Contractor.

A medical malpractice plaintiff contended his pain doctor’s treatment rendered him quadriplegic. The treatment plaintiff received involved a nerve root procedure high up on the spine. A jury found both the doctor and a hospital were negligent and awarded plaintiff a total of $5.2 million, attributing 60 percent of the fault to the doctor and 40 percent to the hospital. On appeal, the hospital contended that as a matter of law the doctor was not its ostensible agent because in Conditions of Admissions forms that plaintiff initialed and signed on 25 separate occasions, the hospital unambiguously informed plaintiff that all physicians furnishing services to patients were independent contractors, not agents or employees of the hospital. The Court of Appeal agreed with the hospital, and in reversing the judgment against the hospital, stated: “Under the circumstances, [plaintiff] knew or should have known that [the doctor] was not [the hospital’s] agent.” The doctor contended on appeal there was insufficient evidence to support the jury’s finding he was negligent. Finding no merit in the doctor’s claim, the Court of Appeal affirmed the judgment against him. (Markow v. Rosner (Cal. App. 2nd Dist., Div. 1, Oct. 4, 2016) 3 Cal.App.5th 1027.)

Self-Pay Emergency Room Patient Has Standing to Claim Hospital’s Billing Practice is Unconscionable.

A patient was treated in an emergency room and paid cash for the treatment. However, he contends the hospital has a variable pricing practice, which means a person paying out-of-pocket pays significantly more than a person covered by a government-sponsored program or private insurance. The patient brought a class action under California’s unfair competition law (Bus. & Prof. Code, § 17200 et seq.) and the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.) or for declaratory relief (Code Civ. Proc., § 1060). The trial court dismissed the complaint after sustaining the hospital’s demurrer without leave to amend. In reversing, the Court of Appeal stated the patient “has standing to claim the amount of the charges defendants’ hospital bills self-pay patients is unconscionable.” (Moran v. Prime Healthcare Management, Inc. (Cal. App. 4th Dist., Div. 3, Sept. 14, 2016) 3 Cal.App.5th 1331.)

“Landlords, Like All Other Men, Love to Reap Where They Never Sowed,” Karl Marx.

Plaintiffs (mom, dad and kids) were forced to leave their apartment after it became infested with bedbugs when the complex had an ongoing raw sewage problem. The family sued the apartment owners, and a jury awarded them $71,652 for their economic and noneconomic damages. The court awarded plaintiffs $326,475.00 in attorney fees pursuant to Civil Code § 1717. On appeal, the apartment owners had three arguments vis-à-vis the attorney fee award: (1) the family asserted no contract claims, so § 1717 does not apply; (2) the family elected a tort remedy, so their action was not “on a contract” under § 1717; and (3) the lease contained three narrow attorney fee provisions that did not apply to the family’s noncontractual claims. The Court of Appeal rejected all three arguments, after thoroughly analyzing the lease, and affirmed. (Hjelm v. Prometheus Real Estate Group, Inc. (Cal. App. 1st Dist., Div. 2, Sept. 9, 2016) 3 Cal.App.5th 1155.)

Overcharging For Copies of a Patient’s Medical Records.

Plaintiff alleges defendants overcharged her for copies of her patient medical records. She sought to bring an action on her own behalf and on behalf of others who, acting through an attorney, requested patient medical records from a provider prior to litigation and were charged more than the amounts specified in Evidence Code § 1158 (which was amended effective 1/1/16, but remains essentially the same). The trial court denied her motion to certify the class. In reversing, the Court of Appeal stated that §1158’s apparent goal is to permit a patient to evaluate the treatment received before determining whether to bring an action against a medical provider, and that it “operates to prevent a medical provider from maintaining secret notes which can be obtained by the patient only through litigation and potentially protracted discovery proceedings.” (Nicodemus v. Saint Francis Memorial Hospital (Cal. App. 1st Dist., Div. 4, Sept. 14, 2016) 3 Cal.App.5th 1200, rev. filed Oct. 25, 2016.)

Victims and the Eighth Amendment.

A criminal defendant was tried by jury and convicted of murdering a woman he met online and her two small children. Three family members testified during the penalty phase about the impact of the murders on them, including their opinions that a death sentence was in order. The Oklahoma Court of Criminal Appeals held that the victim impact evidence was permissible because the United States Supreme Court’s decision in Payne v. Tennessee (1991) 501
U. S. 808 had “implicitly overruled” its decision in Booth v. Maryland (1987) 482 U.S. 496, in which the Court held that the Eighth Amendment prohibited introduction of victim impact evidence in the sentencing phase of a capital case. In the current per curiam opinion, after granting certiorari “to reconsider the ban on ‘victim impact evidence relating to the personal characteristics of the victim and the emotional impact of the crime on the victim’s family,’” the Supreme Court stated, “‘[I]t is this Court’s prerogative alone to overrule one of its precedents.’” The Supreme Court vacated the judgment of the Oklahoma court, stating: “The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant and the appropriate sentence unless this Court reconsiders that ban. The state court erred in concluding otherwise.” (Bosse v. Oklahoma (Oct. 11, 2016) 2016 WL 5888333.)

Statute of Limitations in Legal Malpractice Action.

Client hired law firm #2 to sue law firm #1 after law firm #1 failed to timely file patent applications. The trial court ruled that law firm #2 did not bring the legal malpractice action within the one-year statute of limitations. Law firm #1 was dismissed after the court entered summary judgment against the client and ordered the client to pay law firm #1 $140,000 for its legal fees. On appeal, client contends that the statute of limitations was tolled under the continuous representation exception of Code of Civil Procedure § 340.6, subdivision (a)(2). The Court of Appeal noted that on November 7, 2012, law firm #1 emailed the client that it “must withdraw” as client’s attorney, that its “attorney-client relationship with [client] is terminated forthwith,” and that it “no longer represents [client] with regard to any matters.” In affirming the grant of summary judgment, the appellate court found that law firm #1’s representation ended on November 7, 2012, and the malpractice action was not filed until November 14, 2013. Since the legal services agreement between attorney and client provided that “in the event there is a dispute between us relating to this agreement, the prevailing party to any litigation or arbitration shall be awarded its reasonable attorneys fees and costs,” the appellate court also affirmed the attorney fee order against the client. (GoTek Energy, Inc. v. SoCal IP Law Group, LLP (Cal. App. 2nd Dist., Div. 6, Oct. 12, 2016) 3 Cal.App.5th 1240.)

Government Claim in Sexual Abuse Context.

A second grader alleges in an action against the school district and school personnel that she was bullied, battered, and sexually abused by some of her fellow students at an elementary school. The trial court granted summary judgment for defendants, concluding that plaintiff failed to file the required government claim with the district. On appeal, the guardian ad litem concedes no claim was filed, but argues that pursuant to Government Code § 905, subdivision (m), it was not required. That statute exempts “claims made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual abuse.” Code of Civil Procedure § 340.1, subdivisions (a)(2) and (b)(1) set forth the limitations period for bringing actions “for liability against any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff.” Such actions must be commenced before the victim’s 26th birthday. In reversing, the Court of Appeal stated: “Because section 340.1 provides the limitations period for appellant’s claims of childhood sexual abuse, appellant was exempt from filing a tort claim under Government Code section 905, subdivision (m).” (A.M. v. Ventura Unified School District (Cal. App. 2nd Dist., Div. 6, Oct.12, 2016) 3 Cal.App.5th 1252.)

Attorney/Legislator’s Request For Nine-Month Continuance Denied.

Defendants moved for a nine-month continuance of all proceedings on the ground that defendants’ attorney is a member of the California State Assembly. Pursuant to Code of Civil Procedure §§ 595 and 1054.1, attorneys who are members of the state Legislature are entitled to a continuance and an extension of time unless the continuance or extension would defeat or abridge the other party’s right to provisional or pendente lite relief. The trial court denied the motion without explaining the basis for its ruling. Defendants petitioned for extraordinary relief in the Court of Appeal.  In denying relief, the Court of Appeal found the trial court’s ruling was within its discretion and also said it was not persuaded the Legislature intended to intrude on the rights of courts. (Verio Healthcare, Inc. v. Superior Court (Cal. App. 4th Dist., Div. 3, Oct. 12, 2016) 3 Cal.App.5th 1315.)

Wrong Place; Wrong Time.

A horse was on the property of defendant landowner as part of an annual historical event simulating Old West travel by stagecoach. Defendant landowner was not involved in the event but allowed event organizers to use the land for overnight camping and horse containment. The horse ran away from the land and onto the adjacent property owned by a lodge. A man and woman were just getting out of their car to dine at the lodge when the horse trampled the woman. Defendant moved for summary judgment. Civil Code § 846 shields landowners from liability “for any injury to person or property caused by any act of the person to whom permission has been granted,” so the trial court granted summary judgment to defendant. The Court of Appeal noted that its decision does not affect potential liability of other defendants and affirmed the grant of summary judgment in favor of the defendant landowner, stating: “In this case of first impression, we hold section 846[¶ 3](c) shields landowners from liability where such recreational users of the land cause injury to persons outside the premises who are uninvolved in the recreational use of the land, even where the plaintiffs also allege that the landowners’ neglect of their own property-based duties contributed to the injury.”  (Wang v. Nibbelink (Cal. App. 3rd Dist., Oct. 13, 2016) 2016 WL 5940076.)

No Attorney Fees For Bringing Public Interest Litigation.

A county recorder charged more than the permitted statutory fee for copies of public records. When a complaint was made, the county reduced its charge, but not as much as the complainer requested. A petition for writ of mandate was filed, and the trial court granted summary judgment to the county and denied petitioner’s request for attorney fees. After engaging in a lengthy analysis of governing statutes, the Court of Appeal affirmed the grant of summary judgment. On appeal, petitioner argued that “only one inexperienced in the realities of litigation, or naïve, can believe that the suit did not motivate the fee reduction.” Acknowledging that Code of Civil Procedure § 1021.5 acts as an incentive for the pursuit of public interest litigation that might otherwise have been too costly to bring, the Court of Appeal reviewed the trial court’s denial of attorney fees here for abuse of discretion, and found no such abuse. (California Public Records Research, Inc. v. County of Yolo (Cal. App. 3rd Dist., Oct. 14, 2016) 2016 WL 5957282.)

“We Sleep Safely at Night Because Rough Men Stand Ready to Visit Violence on Those Who Would Harm Us,” Winston S. Churchill.

A member of the United States Navy Reserve informed his employer he was called to active duty in Afghanistan. On his last scheduled day of work before he left for his deployment, the employer informed him he would not have a job upon his return to civilian life. Upon his return, the man sued his employer under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA; 38 USC § 4301-4335). The employer moved to compel arbitration of the claim, and the Ninth Circuit held that USERRA contains no prohibition of an employer compelling arbitration pursuant to an arbitration agreement. (Ziober v. BLB Resources, Inc. (9th Cir., Oct. 14, 2016) 2016 WL 5956733.)

Mandatory Dissemination of Contraception and Abortion Information.

A public interest group asked a federal court to enjoin enforcement of a statute that requires licensed pregnancy-related clinics to disseminate a notice stating the existence of publicly-funded family-planning services, including contraception and abortion. In passing the Fact Act (Health & Saf. Code, § 123472), the California Legislature found:  “Millions of California women are in need of publicly funded family planning services, contraception services and education, abortion services, and prenatal care and delivery. In 2012, more than 2.6 million California women were in need of publicly funded family planning services. More than 700,000 California women become pregnant every year and one-half of these pregnancies are unintended. In 2010, 64.3 percent of unplanned births in California were publicly funded. Yet, at the moment they learn that they are pregnant, thousands of women remain unaware of the public programs available to provide them with contraception, health education and counseling, family planning, prenatal care, abortion, or delivery.” The federal trial court refused to issue the injunction. In affirming the denial of the preliminary injunction, the Ninth Circuit Court of Appeals stated appellants are unable to demonstrate it is likely they will prevail on the merits. (National Institute of Family and Life Advocates v. Harris (9th Cir., Oct. 14, 2016) 2016 WL 5956734.)

Arbitrator, Not the Trial Court, Should Have Determined Whether Arbitration Provision Contemplated Class Arbitration.

In an employment case, the trial court granted the employer’s motion to compel arbitration based upon an arbitration clause contained in plaintiff’s employment application. The Court of Appeal found no error on the part of the trial court, except that it dismissed the class claims.  Following the Supreme Court’s decision in Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, the Court of Appeal granted extraordinary relief, noting the agreement was ambiguous on the question of whether the court or the arbitrator should make the class decision, stating, “whether the arbitration provision contemplated class arbitration was a question for the arbitrator to decide.” (Nguyen v. Applied Medical Resources Corporation (Cal. App. 4th Dist., Div. 3, Oct. 17, 2016) 2016 WL 6070989.)

Permanent Injunction From Enforcing Noncompetition Clause in California…and $800,000 For Private Attorney General Attorney Fees.

After a vehicle rental independent dealer terminated its contract with a vehicle rental company and began offering a competitor’s vehicles for rent, the company sued the dealer for violating the covenant not to compete clause in its dealer contract. The dealer cross-complained, alleging the covenant not to compete was void. The company unsuccessfully sought a preliminary injunction against the dealer, and then dismissed its complaint. The dealer thereupon sued the company for malicious prosecution and violation of the unfair competition law (Bus. & Prof. Code, § 17200 et seq.). A jury awarded the dealer $195,000. The trial court issued a permanent injunction prohibiting the company from enforcing its noncompetition covenant in California and awarded the dealer more than $800,000 in attorney fees. The Court of Appeal affirmed the judgment, concluding the injunction was proper and the trial court did not abuse its discretion in awarding attorney fees. (Robinson v. U-Haul Company of California (Cal. App. 1st Dist., Div. 4, Oct. 18, 2016) 2016 WL 6081757.)

Tumble Off a Gurney…One-Year or Two-Year Statute of Limitations? 

It is unclear whether plaintiff fell from a gurney while being transported into the hospital from an ambulance or while being transferred from a gurney onto an x-ray table. Suffice it to say, while plaintiff was being transported in a hospital on a gurney, he fell to the floor and was injured. The complaint was filed more than one year, but less than two years, after the injury. Applying the holding in Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, the Court of Appeal noted: “The transfer of [plaintiff] in the hospital on a gurney was integrally related to [plaintiff’s] medical treatment or diagnosis, and, therefore, the injury occurred in the rendering of professional services.” The appeals court concluded plaintiff’s claims are not subject to the two-year statute of limitations set forth in Code of Civil Procedure § 335.1, the statute that applies to the wrongful act or neglect of another, but are barred by the one-year statute of limitations set forth in Code of Civil Procedure § 340.5, the statute that applies to injuries caused by the professional negligence of a health care provider. (Nava v. Saddleback Memorial Medical Center (Cal. App. 4th Dist., Div. 3, Sept. 23, 2016) 2016 WL 6087613.)

Question of Fact Whether a Casino is a Common Carrier.

A casino provides free shuttle service to the casino from various restaurants, public streets or landmarks. A large group awaited the 1:15 p.m. shuttle bus, which stopped 20 to 30 meters from where the assemblage stood. This was a popular time and oftentimes there were more people waiting than there were seats on the shuttle. In this instance, as they ran toward the shuttle, plaintiff was injured as she placed her foot on the shuttle’s step and was pushed and fell. Plaintiff sued the casino, and the trial court granted summary judgment in favor of the casino after finding the casino owed a duty of ordinary care and not a heightened duty of care as owed by a common carrier for reward to its passengers. The appellate court noted the shuttle was for reward in the same sense that department stores offer escalators or elevators for reward, and that the casino reaped reward from the shuttle by transporting passengers to its premises, where they disembarked, gambled, and lost money to the casino. In reversing, the Court of Appeal concluded there are triable issues of fact whether the casino was a common carrier for reward, pointing out that Civil Code § 2096 defines carriers for reward and that the reward need not be a fee charged for the transportation service.  (Huang v. Bicycle Casino, Inc. (Cal. App. 2nd Dist., Div. 8, Oct. 19, 2016) 2016 WL 6092412.)


For immigration purposes, a “child” is an unmarried person under the age of 21 (8 USC § 1101 (b)(1)). The Attorney General has the discretion to cancel the deportation of an alien if it would result in extreme hardship to the alien’s child who is a U.S. citizen (8 USC § 1229 (b)(1)(D)). While the applications to cancel deportation due to extreme hardship to the children of two aliens were pending, the children turned 21. Both aliens are citizens of Mexico and had been convicted of committing domestic violence while living in the USA.  The Board of Immigration Appeals held the aliens were no longer eligible for cancellation of removal, and the Ninth Circuit Court of Appeals denied the aliens’ petitions for review, declining to find that delays resulted in a denial of due process. (Mendez-Garcia v. Lynch (9th Cir., Oct. 20, 2016) 2016 WL 6122777.)

Failed Wage and Hour PAGA Claim.

Plaintiff sued her former employer, alleging violation of Labor Code § 226, subdivision (a) by failing to include the monetary amount of accrued vacation pay in its employees’ wage statements. She filed the action in her individual capacity and on behalf of all aggrieved workers under the Private Attorney General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) The trial court sustained the employer’s demurrer without leave to amend. The Court of Appeal affirmed, stating: “We affirm. Section 226(a) does not require employers to include the monetary value of accrued paid vacation time in employee wage statements unless and until a payment is due at the termination of the employment relationship.”  (Soto v. Motel 6 Operating, L.P. (Cal. App. 4th Dist., Div. 1, Oct. 20, 2016) 2016 WL 6123927.)

“Onerous Burden a Personal Injury Plaintiff Faces in Proving Damages For Past Medical Expenses,” Third District Court of Appeal.

A plaintiff who had no medical insurance was injured in a car accident and underwent surgery. Prior to surgery, she executed medical lien agreements with her health care providers. Her medical providers sold their bills and liens to a medical finance company. Plaintiff’s doctor cited privacy and confidentiality and refused to produce the agreement with the medical finance company, but the doctor did produce the lien and the notice to plaintiff that it had been sold and that plaintiff was to pay the finance company. The defense moved to compel the doctor to produce the finance company documents, and the court denied the motion, awarding plaintiff $2,500 in sanctions. The trial court later granted plaintiff’s motion in limine precluding admission of the finance company evidence. At trial, plaintiff introduced evidence that she incurred $191,232 in medical bills, and the doctors all testified the amounts they billed reflected their ordinary and customary charges and the reasonable value of their services.  The jury awarded plaintiff a total of $522,689 in damages. The total damages award includes $122,689 for past medical expenses; $45,000 for future medical expenses; $180,000 for physical pain, physical impairment, loss of enjoyment of life, inconvenience, anxiety, and emotional distress; and $175,000 for future noneconomic loss. On appeal, defendant argued that plaintiff’s damages for past medical expenses should be limited to the amount the healthcare providers accepted from the finance company as full payment for their services. The Court of Appeal held that Howell v. Hamilton Meats (2011) 52 Cal.4th 541 does not cap a plaintiff’s damages for past medical expenses to the amount a medical finance company pays healthcare providers for their accounts receivable and medical liens. The appeals court affirmed the damages award, but reversed the sanctions.  (Moore v. Mercer (Cal. App. 3rd Dist., Oct. 21, 2016) 2016 WL 6135335.)

Selling Car With Prior Undisclosed Collision Damage.  

A consumer purchased a used BMW for $45,762 in April 2011. In June 2013, the consumer sent BMW North America and BMW San Diego a letter asserting they violated the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) in multiple respects by selling her a used vehicle with prior collision damage and a protracted history of mechanical failure. She requested they remedy the violation by unwinding the transaction, refunding her payments, reimbursing her for her reasonable expenses, and paying off her outstanding loan balance. She also requested they enter a stipulated injunction requiring them “to disclose collision damage in writing, prior to sale, and in particular, disclose if the BMW Certified Pre Owned program actually allows sale of vehicles with prior collision damage.” BMW San Diego offered to resolve the matter by repurchasing the vehicle for all costs incurred, including paying off her existing loan and reimbursing her for her down payment and any loan payments she made, less an offset for depreciation due to her use of the vehicle and any material damage to it. BMW San Diego also offered to reimburse reasonable attorney fees. The offer was contingent upon agreeing to a general release and to dismissing BMW San Diego with prejudice from any lawsuit she may have filed. Eventually, the matter settled except for attorney fees, which were to be decided by the court. The trial court awarded the consumer $180,262.50 for her attorney fees and $4,951.69 for costs. On appeal, defendants contended the consumer was not entitled to any attorney fees because she unreasonably refused to accept an appropriate remedy made early on. Deciding the trial court did not abuse its discretion in making the award, the Court of Appeal affirmed. (Goglin v. BMW of North America, LLC (Cal. App. 4th Dist., Div. 1, Oct. 21, 2016) 2016 WL 6135482.)

Bearded Seals Placed on Threatened Species List.  

The National Marine Fisheries Service (NMFS) used climate projections to determine that the loss of sea ice over shallow waters of the Arctic would have the Pacific bearded seal subspecies endangered by the year 2095. The issue here is the following: when NMFS determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, may NMFS list that species as threatened under the Endangered Species Act? A federal district court found the agency could not place the species on the threatened list, after hearing argument from the State of Alaska that NMFS lacked data on the bearded seal’s adaptability and population trends. The State of Alaska requested it be permitted to revisit the issue in 20 to 50 years. The Ninth Circuit Court of Appeals reversed, stating: “Although data regarding the bearded seal is limited, NMFS conducted a thorough assessment based on the best available scientific and commercial data.” (Alaska Oil and Gas Ass’n. v. Pritzker (9th Cir., Oct. 24, 2016) 2016 WL 6156040.)

The Going and Coming Rule.

Defendant operated drilling rigs on a piece of leased property 24 hours a day. Each rig had two crews working 12 hours per day for 14 days, followed by 14 days off. This appeal presents a question of employer liability under the doctrine of respondeat superior for a traffic accident caused by an oil rig worker driving home after work and providing two other employees with a ride to their employer-paid hotel. Under the going and coming rule, employees traveling to and from work are considered outside the scope of employment and, therefore, employers are not liable for torts committed during the employee’s commute. The Court of Appeal concluded that the undisputed facts establish that the going and coming rule applies in this case, stating: “It cannot be reasonably inferred from the undisputed facts that the employer impliedly required or requested the driver to provide transportation to his supervisor between the hotel and the jobsite. The supervisor’s requests for such rides were personal in nature and are not reasonably imputed to the employer. Therefore, this case is comparable with other cases in which the going and coming rule was applied to employees who made their own carpooling or ridesharing arrangements.” (Pierson v. Helmerich & Payne International Drilling (Cal. App. 5th Dist., Oct. 6, 2016.) 2016 WL 6216570.)

Attorney-Client Privileged Communications Exempt From Public Records Act Disclosure Requirements.

Pursuant to Labor Code § 1140, the Agricultural Labor Relations Board adjudicates administrative complaints of unfair labor practices committed by agricultural employers, labor organizations, and their agents. The Board’s general counsel serves as the prosecutor in those administrative proceedings. When a farming company requested information under the Public Records Act about communications between the Board and counsel concerning an action for an injunction, the Board refused. Seeking disclosure, the farming company filed a petition for extraordinary relief in superior court. The superior court ordered disclosure. The Court of Appeal reversed, concluding that communications between the Board and counsel are exempt from disclosure under the Public Records Act. (Agricultural Labor Relations Board v. Superior Court (Cal. App. 3rd Dist., Oct. 25, 2016) 2016 WL 6236427.)

Subcontractor Injured on the Job; MSJ in Favor of General Contractor Affirmed.

An employee of a subcontractor was injured while performing electrical work on a construction project. He sued the general contractor for negligence.  The owner had scheduled an electrical shutdown, but the worker started his project 30 minutes early and was severely injured when an electrical arc occurred. The contract between the general contractor and the owner required the general contractor to “exercise precaution at all times for the protection of persons and their property,” and to “retain a competent, full-time, on-site superintendent to . . . direct the project at all times,” among other things. It made the general contractor “exclusively responsible” for the health and safety of its subcontractors, and required the general contractor to submit “comprehensive written work plans for all activities affecting [the owner’s] operations,” including utility shutdowns. The general contractor did not have anyone on the site when the injury occurred. The trial court granted the general contractor’s motion for summary judgment pursuant to Hooker v. Department of Transportation (2002) 27 Cal.4th 198. The Court of Appeal affirmed, finding there is no evidence of an act by the general contractor that affirmatively contributed to the injury. (Khosh v. Staples Construction Company, Inc. (Cal. App. 2nd Dist., Div. 6, Oct. 26, 2016) 2016 WL 6247658.)

Big Penalty For Business That Went Bare.

In 2015, the Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE) inspected an automotive shop and discovered the business had employees since it began operating in 2007, but had never acquired workers’ compensation insurance coverage as required by Labor Code § 3700. Although the business did thereafter obtain insurance, the DLSE issued a penalty order, assessing the penalty at $179,329.60. Labor Code § 3722, subdivision (b) authorizes a penalty if “an employer has been uninsured for a period in excess of one week during the calendar year preceding the determination.”  The business filed an administrative appeal, which was denied, and then filed a writ petition in the superior court. The superior court sustained the DLSE’s demurrer without leave to amend. The Court of Appeal affirmed, finding that the meaning of “calendar year,” as used in Labor Code § 3722, subdivision (b), is “the 12-month period immediately preceding a determination that an employer has been uninsured for the requisite period.” (Taylor v. Department of Industrial Relations, Division of Labor Standards Enforcement (Cal. App. 1st Dist., Div. 5, Oct. 26, 2016) 2016 WL 6248438.)

Lawyer prevails in Special Motion to Strike and Litigation Privilege Contentions. 

Plaintiff sued her landlords, their son, and the landlords’ former attorneys for tenant harassment and other causes of action arising out of allegedly illegal entries into plaintiff’s apartment. After defendant, a lawyer, assumed representation of the landlords, plaintiff amended her pleadings to name him as a defendant. She alleged defendant had aided and abetted his clients’ wrongful entries. The trial court denied defendant’s special motion to strike (Code Civ. Proc., § 425.16), finding plaintiff had established a probability of prevailing on the merits of her action. The Court of Appeal reversed, concluding the only actions defendant is alleged to have taken are communicative acts by an attorney representing clients in pending or threatened litigation and that “bare allegations of aiding and abetting or conspiracy do not suffice to remove these acts from the protection of the statute. Moreover [plaintiff] cannot demonstrate a probability of prevailing on the merits of her cause of action, because [defendant’s] communicative acts are within the scope of the litigation privilege codified in Civil Code section 47, subdivision (b).” (Contreras v. Dowling (Cal. App. 1st Dist., Div. 5, Oct. 26, 2016) 2016 WL 6248437.)

Summary Judgment in Favor of Fitness Health Club Affirmed.

Plaintiff, who was in his early 60’s, joined a fitness health club. He signed a membership agreement, which included the following pertinent language enclosed within a rectangular-bordered box: “. . . Member hereby releases and holds [fitness health club] . . . harmless from all liability to Member . . . for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member’s person or property . . . whether caused by the active or passive negligence of [fitness health club] or otherwise, to the fullest extent permitted by law . . . .” After a workout one day, plaintiff slipped in the shower, which had a very slippery, slanted floor and had no handrail, mats or friction strips, and plaintiff was very seriously injured. The trial court granted the fitness health club’s motion for summary judgment, after concluding plaintiff’s allegations of gross negligence were conclusory. In affirming, the Court of Appeal concluded that after resolving all doubts in plaintiff’s favor, there existed no triable issues of fact. (Anderson v. Fitness International, LLC (Cal. App. 2nd Dist., Div. 7, Oct. 27, 2016) 2016 WL 6302109.)

Homeowners Associations are Meant For Rule-Followers, Not Those Who Question Authority.

Homeowners were told by their homeowners association it would not pursue an action against them if they proceeded without the association’s approval to build a retaining wall around their large piece of property.  Of course, later the association said it did not have all the facts when it made that representation. The short version is the homeowners built the wall and now the association gets to take it down. The homeowners also pay the association’s attorney fees. (Nellie Gail Ranch Owners Association v. McMullin (Cal. App. 4th Dist., Div. 3, Oct. 3, 2016) 2016 WL 6395070.)

Trying to Collect Child Support For Times Parent Not Providing Support For Child.

The Court of Appeal was asked to determine whether a family court may exercise its discretion to determine whether a mother may enforce a child support order for the period of time when the child was living in the home of the father’s parents. The appellate court noted:  “If the facts as presented by Father are true—that is, if Mother is seeking child support arrears for times that she neither cared for Minor nor provided for her financially—enforcement of the arrears might well be nothing more than a windfall to Mother, bearing no relation to any support or care Minor actually received during her childhood.” Thus, the appellate court remanded the matter to the trial court to determine if “it would be inequitable to allow Mother to enforce some or all of the child support order to the extent it applies to periods that Minor lived with Grandparents.” (In re Marriage of Deborah A. and Wilson (Cal. App. 1st Dist., Div. 4, Oct. 27, 2016) 2016 WL 6302100.)

Patient’s Knee Damaged by Medical Device.

In 2003, a high school athlete consulted defendant doctor regarding knee surgery after she injured her knee running hurdles. The doctor recommended arthroscopic surgery as well as the use of a Class II medical device after surgery, which device is available only by prescription.  The device is intended to deliver cold therapy to the site of surgery. The doctor did not inform the patient or her parents that he had a financial interest in the medical device. After surgery, the doctor prescribed using the device as much as possible. At some point, redness and blisters appeared, but the doctor did not return the patient’s mother’s telephone call about that condition. The next morning, a large black area appeared on the patient’s knee. This time the doctor did return the call and had the mother bring the patient to his office. The patient was referred to a specialist in wound plastic surgery, and a surgery was performed. Nine more surgeries followed. By the time of trial in 2012, two more surgeries were recommended. At trial, plaintiff presented expert evidence the medical device inflicted a nonfreezing cold injury to the knee, causing a decrease in blood flow, which deprived surrounding tissues of oxygen and nutrients. The jury awarded plaintiff $68,270.38 in economic damages and $5,127,950 in noneconomic damages, allocating 50 percent of fault to the defendant doctor, 10 percent to the company that rented out the medical device, and 40 percent to the manufacturer of the device. In the punitive damages portion of the trial, the jury awarded plaintiff $500,000 against the defendant doctor and $7 million against the manufacturer. Plaintiff was killed while the appeal was pending. In a 107-page opinion, the Court of Appeal affirmed in part and reversed in part, reducing the noneconomic damages to $1,300,000 and the punitive damages against the defendant doctor to $150,000, conditioned on plaintiff’s estate administrator’s acceptance of the reduced amounts.   (Bigler-Engler, as Administrator, etc. v. Breg, Inc. (Cal. App., 4th Dist., Div. 1, Oct. 28, 2016) 2016 WL 6311108.)

Plaintiffs’ Counsel Disqualified.

The defendant in the present class action is Apple, Inc. The trial court disqualified plaintiffs’ counsel because counsel’s firm had a conflict of interest arising from its concurrent representation of the putative class in both the present case and another wage and hour class action pending against Apple. The trial court noted that in order to advance the clients’ interests in the present case, plaintiffs’ counsel would be required to cross-examine a client in the other case. In affirming the order of disqualification, the Court of Appeal agreed that a disqualifying conflict exists between the interests of the clients in the two cases. (Walker v. Apple, Inc. (Cal. App., 4th Dist., Div. 1, Sept. 28, 2016) 2016 WL 6395074.)


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