The Appellate Courts published several opinions on a host of civil procedure issues ranging from the impact of statutory offers to compromise pursuant to Code of Civil Procedure section 998, statutes of limitations, choice-of-law, personal jurisdiction over non-California defendants, recoverable costs, admissibility of expert opinions, amending of pleadings, trial continuances, preservation of issues on appeal, and issuance of sanctions for discovery abuses. These opinions apply to all civil cases irrespective of the underlying substantive issues.

In an action alleging violation of the California Public Records Act case, Court of Appeal holds that a Code of Civil Procedure section 998 offer was unambiguous and, as a result, limited an attorney’s fees award to pre-offer attorney’s fees

In Kinney v. City of Corona Alisha Kinney sent an e-mail request to defendant, City of Corona (“City”), asking City to make a public record available to Kinney: the name of the owner of a vehicle reported stolen in City on May 23, 2019, according to an online news article. Kinney’s request was governed by the California Public Records Act (“CRPA”). On January 6, 2020, City denied Kinney’s request on the ground the stolen vehicle owner’s name was “confidential.” Kinney sued City alleging violations of the CRPA. On February 14, 2020, City served a Statutory Offer to Compromise pursuant to Code of Civil Procedure section 998 in which City offered to disclose the name and pay Kinney $2,500 in attorney’s fees and costs. Kinney did not accept the offer. The case proceeded to trial. Kinney prevailed and the court ordered City to disclose the name to Kinney. Pursuant to the attorney’s fees provision in the CRPA, Kinney filed a motion for attorney’s fees in the amount of $43,300. The court granted the motion, and the City appealed.

On appeal City claimed the trial court erroneously refused to enforce City’s section 998 offer to Kinney. The Court of Appeal agreed and reversed the trial court’s ruling. The Court of Appeal held that City’s offer was valid and unambiguous and that Kinney did not receive a more favorable result at trial. Thus, pursuant to section 998 Kinney was only entitled to recover her pre-offer attorney’s fees in the amount of $2,475.

Court of Appeal rules that Emergency rule 9, enacted to toll the statute of limitations as a result of the COVID-19 pandemic also tolled section 340.1(q)’s three-year revival period for sexual assault claims

In John GM Roe v. Doe 1 plaintiff, John GM Roe, a childhood sexual assault victim, filed an action against three “Doe” defendants, including his former Boy Scout leader. On demurrer by the defendant, the trial court dismissed his complaint with prejudice, citing failure to timely file certificates of merit as required by California’s Code of Civil Procedure section 340.1(f) and (g). The court also claimed that the statute of limitations had expired by the time Roe filed compliant certificates.

Roe appealed, arguing that Emergency rule 9, enacted in response to the COVID-19 pandemic, tolled the statute of limitations governing his claims. This rule, he contended, meant that when the court dismissed his complaint, the limitations period had not yet expired. Therefore, he insisted that the dismissal should have been without prejudice so he could refile his complaint and certificates of merit before the limitations period ended.

The Court of Appeal agreed with Roe. The court ruled that section 340.1(q), which created a three-year revival period for all civil claims arising from childhood sexual assault that were barred as of January 1, 2020, is part of a statute of limitations. Consequently, Emergency rule 9, which tolled statutes of limitations for civil causes of action that exceed 180 days, also tolled section 340.1(q)’s three-year revival period. This interpretation extended the deadline to file childhood sexual assault claims to June 27, 2023. As such, the court reversed the trial court’s order dismissing Roe's claims with prejudice, allowing him to refile his complaint and certificates of merit.

Court of Appeal holds that despite a deposition not actually occurring, the trial court’s award of costs for that deposition to the prevailing party was appropriate

In Garcia v. Tempur-Pedic North America, LLC consumers brought tort claims against a mattress retailer and manufacturer, alleging injuries suffered while sleeping on a defective mattress. The plaintiffs settled with the retailer and later dismissed their claims against the manufacturer, Tempur-Pedic North America, LLC (“Tempur-Pedic”), before filing a new lawsuit. Tempur-Pedic then moved for costs as the prevailing party in the dismissed lawsuit. The trial court awarded some costs to Tempur-Pedic, including costs for depositions that were noticed but did not occur. The consumers appealed this decision, arguing it was improper to award costs for depositions that did not occur.

The Court of Appeal disagreed with the consumers and affirmed the trial court’s decision. The Court held that there is no blanket exception to awarding costs for depositions that were noticed but did not occur. The Court explained that the proper analysis focuses on whether costs were “reasonably necessary” to litigating a case when incurred, not whether the costs could have been avoided in retrospect. The Court found that the trial court did not abuse its discretion in finding the costs were reasonably necessary.

Ninth Circuit holds that under California’s “choice-of-law test” Spanish law applied to determine ownership of Pissarro painting stolen by Nazis

In Cassirer v. Thyssen-Bornemisza Collection Foundation a lawsuit was brought by the plaintiffs, David Cassirer, the Estate of Ava Cassirer, and the United Jewish Federation of San Diego County, against the Thyssen-Bornemisza Collection Foundation (“Thyssen”), an instrumentality of the Kingdom of Spain. The case centered around a painting by French Impressionist Camille Pissarro, which was stolen by the Nazis in 1939 Germany. The painting eventually came into the possession of Thyssen which publicly displayed it in Madrid, Spain since 1993. When the plaintiffs learned of the painting’s location in 2000, they petitioned for its return, but were denied, leading to the present lawsuit filed in 2005.

The case hinged on whether Spanish or California law should govern the determination of ownership of the painting. Under Spanish law, the defendant would retain the painting, having gained prescriptive title through possession for over three years in good faith. Under California law, the plaintiffs would recover the painting, as a thief cannot pass good title to stolen property.

The Ninth Circuit, on remand from the United States Supreme Court, applied California’s three-step “governmental interest analysis” for choice-of-law disputes. The Court found that there was a true conflict between the laws of Spain and California, and that each jurisdiction had a legitimate interest in applying its laws to the case. The Court then resolved the conflict by applying the law of the jurisdiction whose governmental interests would be more impaired if its law were not applied. The Court concluded that Spain’s governmental interests would be more impaired by the application of California law than would California’s governmental interests be impaired by the application of Spanish law. Thus, Spanish law applied, and Thyssen had gained prescriptive title to the painting. The Court affirmed the district court’s judgment in favor of Thyssen.

Court of Appeal holds that trial court erred in granting a motion in limine to exclude a causation expert’s opinion on diesel exhaust exposure because the analytical gap in the data was caused by a lack of scientific research on the subject

In Garner v. BNSF Railway Co. Gary Garner filed a wrongful death lawsuit against BNSF Railway Company, alleging that his father’s exposure to toxic levels of diesel exhaust during his four-decade employment with BNSF caused his father’s non-Hodgkin's lymphoma (“NHL”) and subsequent death. Garner retained several experts to opine on whether diesel exhaust and its constituents are capable of causing cancer, including NHL, and whether the father’s workplace exposure to diesel exhaust was a cause of his cancer. However, the trial court, relying on the seminal California Supreme Court opinion in Sargon Enterprises v. University of Southern California (2012) 55 Cal.4th 747 (“Sargon”), granted BNSF’s motions in limine to exclude Garner’s three causation experts from trial. The trial court ruled that the scientific literature relied upon by plaintiff’s experts was inadequate and there was too great an “analytical gap” between the data and their opinions. As a result, Garner was unable to prove the necessary element of causation, and his wrongful death lawsuit was dismissed before trial. Garner appealed.

The Court of Appeal concluded that the trial court erred in excluding Garner’s experts. The Court held that the trial court’s “gatekeeping” role under Sargon is not to choose between competing expert opinions, and it does not involve weighing the persuasiveness of an expert’s opinion, substituting its own opinion for the expert’s opinion, or resolving scientific controversies. The Court found that Garner’s experts used their scientific judgment and expertise to evaluate the available data and determine whether to draw an inference of causation, which is a matter of informed judgment, not scientific methodology. The Court reversed the orders and judgment and remanded the case to the trial court with instructions to enter new orders denying BNSF’s motions in limine.

Court of Appeal holds that trial court’s error in refusing to grant trial continuance to defendant after permitting attorney’s withdrawal on eve of trial was not prejudicial where defendant's contentions were merely suggestive of disadvantage.

In Marriage of Tara and Robert D. a father, Robert D., appealed a final custody order following a divorce arguing that the trial court abused its discretion by refusing to grant a continuance of the trial after his attorney withdrew from the case the day before the trial was set to begin. The trial resulted in a custody order in favor of the plaintiff, and defendant appealed.

The Court of Appeal agreed that when a court allows a lawyer to withdraw on the eve of trial, it has a responsibility to assess the length of a continuance that would be required for the affected party to obtain a new lawyer and balance that against other pertinent circumstances. The Court determined that the trial court failed to make this assessment which constituted an abuse of discretion. However, the Court found that Robert D. had not demonstrated that the court’s error resulted in a “miscarriage of justice.” As such, the custody order was affirmed.

Court of Appeal holds that a plaintiff should have been allowed to amend her complaint where she may have been able to allege facts to overcome judicial estoppel triggered by her prior bankruptcy filing

In Miyahara v. Wells Fargo Bank; N.A. Plaintiff tried to refinance her Wells Fargo home loan with another lender but that effort was thwarted by a fraudulent third-party lien on the property. She filed a Chapter 13 bankruptcy to avoid foreclosure and listed her claim against the third party but not any claim against Wells Fargo in her schedules. Thereafter, plaintiff filed a lawsuit against Wells Fargo contending that Wells Fargo should have helped her remove the fraudulent lien, but instead it started foreclosure proceedings on her loan.

Wells Fargo demurred, arguing Miyahara’s complaint was barred by judicial estoppel because Miyahara failed to list any claim against Wells Fargo in her bankruptcy schedule. After Wells Fargo filed its demurrer, Miyahara amended her bankruptcy schedule to include her claim against Wells Fargo. The trial court sustained the demurrer without leave to amend, agreeing with Wells Fargo that her lawsuit was barred by judicial estoppel.

The Court of Appeal reversed, holding that the trial court should have granted plaintiff leave to amend her complaint. The Court noted that the complaint as initially pleaded was subject to judicial estoppel due to the inconsistent positions plaintiff took in bankruptcy court and state court and from which she benefited when the bankruptcy court confirmed her Chapter 13 plan. However, the Court held that judicial estoppel is generally better assessed on summary judgment rather than demurrer, and the trial court should have given plaintiff leave to amend to allege facts showing that her failure to list the claim on her bankruptcy schedules was due to a mistake.

California Supreme Court holds that where the right to a jury trial has been validly waived by a party, the opposing party must demonstrate actual prejudice to prevent a reversal of the waiver

In TriCoast Builders, Inc. v. Fonnegra Nathaniel Fonnegra hired TriCoast Builders (“TriCoast”) to repair his house after a fire, but he was unhappy with the quality of the work and terminated the contract. TriCoast sued Fonnegra for damages. Fonnegra initially demanded a jury trial but waived this right on the day of the trial. TriCoast, which had not demanded a jury trial or paid the jury fee, requested a jury trial after Fonnegra’s waiver. The trial court denied the request and a bench trial was held. Fonnegra prevailed.

TriCoast appealed the judgment, arguing that the trial court erred in denying its request for a jury trial. The Court of Appeal affirmed the trial court’s ruling and TriCoast filed a petition for review with the California Supreme Court.

The Supreme Court held that a trial court has discretion to grant or deny relief from a jury trial waiver under section 631(g) of the Code of Civil Procedure. The Court held that a trial court is not required to grant relief just because proceeding with a jury would not cause hardship to other parties or the court. Rather, the trial court should consider various factors, including the timeliness of the request and the reasons supporting the request. The Court further held that a litigant who challenges the denial of relief from a jury waiver for the first time on appeal must show actual prejudice to obtain reversal. The Supreme Court affirmed the judgment of the Court of Appeal, concluding that TriCoast had not established the prejudice necessary to justify reversing the trial court’s judgment.

Ninth Circuit holds that the district court did not abuse its discretion in entering a default judgment as a sanction for defendants’ repeated violations of court orders and Orders to Show Cause re: imposition of sanctions

In Transamerica Life Insurance Co. v. Arutyunyan Transamerica Life Insurance Company filed a complaint against defendants Akop and Anahit Arutyunyan accusing them of engaging in insurance fraud. During the litigation, the district court issued escalating sanctions against the defendants for their repeated non-compliance with court orders, eventually leading to the entry of a default judgment as a terminating sanction. Defendants appealed.

The Ninth Circuit affirmed the default judgment on the grounds that the district court had not abused its discretion in entering a default judgment as a sanction for the defendants’ repeated and continuous violations of court orders. The Court also held that defendants’ appeal was frivolous and ordered the defendants and their counsel to show cause why sanctions should not be imposed under various provisions given the frivolous nature of the appeal and multiple misstatements made by counsel during oral argument.

Court of Appeal holds that appellant forfeited its claim on appeal when it failed to provide a fair summary of the record by not including the trial court’s analysis of 30 documentary exhibits and three witnesses

In Symons Emergency Specialties v. City of Riverside Symons Emergency Specialties (“Symons”), a provider of ambulance services, filed a complaint seeking declaratory and injunctive relief against the City of Riverside (“City”), arguing that the Riverside Municipal Code (“RMC”) section requiring a permit is invalid under the Emergency Medical Services System and Prehospital Emergency Medical Care Act (“EMS Act”). The dispute centered on whether the City had regulated nonemergency ambulance services as of June 1, 1980, which would allow it to continue doing so under the EMS Act’s grandfathering provisions.

The trial court found in favor of the City concluding that Symons had failed to meet its burden of proof. Symons appealed, arguing that the trial court erred in admitting certain evidence, that the court’s factual finding was not supported by substantial evidence, and that the RMC section violated federal antitrust law.

The Court of Appeal affirmed the trial court’s decision. The Court found no error in the admission of the evidence and concluded that substantial evidence supported the trial court’s findings. The Court also held that Symons had forfeited its “lack of substantial evidence” claim on appeal by failing to provide a fair summary of the record in the trial court. The Court noted that in its statement of decision, the trial court analyzed the testimony of three witnesses and explicitly referenced 30 documentary exhibits in support of its finding. Yet the summary of facts set forth in Symons’s opening brief failed to specifically reference, let alone present a fair summary, of the majority of this evidence.

Court of Appeal holds that trial court’s refusal to set aside an attorney’s unauthorized dismissal of cross-complaint was not an abuse of discretion where the client failed to act promptly to rectify the situation, thus ratifying the dismissal

In W. Bradley Electric v. Mitchell Engineering plaintiffs Mary Wong (individually and as the personal representative of the Estate of Lai Lee Wong), Thomas Wong, Felix Wong, and Jerry Wong sued Mebrhatu Behre Brhane (“Plaintiffs”) and Doe defendants Plaintiffs alleged that, on March 16, 2018, Lai Lee Wong was crossing the street near Broadway and Stockton Streets in San Francisco, when a vehicle driven by Brhane, while working as a rideshare driver for Uber Technologies Inc. (“Uber”), struck her in the crosswalk and caused injuries that led to her death. Uber was later substituted for Doe 1and added as a defendant. In Later, Plaintiffs filed a separate complaint against Mitchell Engineering (“Mitchell”) alleging that the condition of the sidewalk and crosswalk entrance near the intersection of the accident, which was under construction as part of a project involving Mitchell, was a contributing cause of the fatal accident. Mitchell filed a second amended cross-complaint against Brhane, Uber, DeHaro, and Bradley Electric (“Bradley”). The cross-complaint asserted causes of action for equitable indemnity and contribution against all cross-defendants, express indemnity against DeHaro and Bradley based on indemnity provisions in their subcontracts, breach of contract against DeHaro, and declaratory relief. A settlement was reached whereby Mitchell’s cross-complaint was dismissed.

Mitchell filed a motion under Code of Civil Procedure section 473(d) to void the dismissal of its cross-complaint on the ground that the dismissal was entered under a settlement that Mitchell’s attorney had entered into without Mitchell’s consent. The trial court denied the motion, and Mitchell appealed.

Recognizing a split of appellate authority over whether a judgment on a settlement entered into without client consent is void or merely voidable and suggesting that voidable is the proper answer, the Court of Appeal affirmed finding that the trial court did not abuse its discretion in denying relief because Mitchell remained silent in the face of its knowledge of the settlement and the accompanying dismissal, thus ratifying the attorney’s otherwise unauthorized settlement.

Ninth Circuit holds that terminating sanctions were appropriate where plaintiff took affirmative steps to coordinate deletion of text messages between her and coworkers with the intent to deprive the defendant of their use as evidence in the case

In Jones v. Riot Hospitality Group plaintiff, Alyssa Jones, sued her former employer, a bar, Riot Hospitality Group (“Riot”), and its owner individually alleging discrimination and other employment tort claims. During discovery, plaintiff was found to have intentionally deleted relevant text messages with co-workers from 2017 and 2018 and coordinated with her witnesses to delete additional messages from 2019 and 2020. These actions were taken with the intent to deprive Riot of information critical to the litigation. Riot moved for terminating sanctions, including dismissal of the action, based on plaintiff’s conduct.

The district court ruled that the deletions could not be remedied through further discovery and consequently dismissed the case under Federal Rule Civil Procedure 37(e)(2) (“Rule”), which addresses the loss of electronically stored information (“ESI”) due to a party’s failure to take reasonable steps to preserve it when litigation is anticipated. The court’s decision was based on Jones’ intent to obstruct the litigation, a key factor under the Rule, and determined that lesser sanctions would not be sufficient.

The Ninth Circuit affirmed the district court’s dismissal under rule 37(e)(2) because of intentional spoliation of ESI by the plaintiff. The Court held that the district court did not abuse its discretion by imposing a terminating sanction because ample circumstantial evidence showed that the plaintiff acted willfully, and the district court properly relied on an inference that her deletion of text messages with co-workers and her coordination with witnesses to delete messages was prejudicial to the defendant.

Court of Appeal holds that a law firm’s withdrawal from representation of its client did not insulate it from sanctions for its prior discovery misuse

In Masimo Corporation v. The Vanderpool Law Firm Masimo Corporation (“Masimo”) employed John Bauche, and at his request, granted him permission to engage an outside vendor to assist him in his duties. Bauche engaged BoundlessRise, LLC (“Boundless”), of which he was the sole member. Bauche then embezzled nearly $1 million from Masimo. When his fraud was discovered, he agreed to transfer the money back. Instead, he transferred most of it to Skyward Investments, LLC (“Skyward”), again of which he was the sole member. Masimo fired Bauche and referred the matter to law enforcement. A federal grand jury indicted Bauche for mail fraud, money laundering, and related crimes.

In July 2019, Masimo sued Bauche, Boundless, and Skyward for misappropriation of corporate funds. All three defendants were represented by The Vanderpool Law Firm in the civil action. Masimo served interrogatories and document requests on the defendants. The responses included boilerplate objections with no substantive responses such as Bauche’s place of birth, current residence, educational history, etc. The court appointed a discovery referee and Vanderpool represented at a conference in February 2022, that it would “promptly” provide further responses. Later that month, Vanderpool served supplemental responses. The responses to both the special interrogatories and document requests consisted solely of the same and additional objections; only the responses to form interrogatories included minimal substantive responses.

In March 2022, Vanderpool withdrew as counsel for all three defendants. After the withdrawal, Masimo filed motions to compel further responses to discovery and sought sanctions against Vanderpool and the defendants in the amount of $17,500. The trial court granted the motion but reduced the sanctions to $10,000. Vanderpool appealed on the ground that it was no longer counsel of record.

The Court of Appeal affirmed finding that the language of the relevant statute authorizing sanctions does not limit imposition of monetary sanctions to counsel of record, but instead includes any attorney advising the conduct.

Court of Appeal holds that by putting at issue attorney fees they incurred seeking coverage under their insurance policy, plaintiffs waived the attorney-client privilege as to documents supporting their fees claim

In Byers v. Superior Court George and Sheila Byers filed a lawsuit against their homeowners’ insurance provider, USAA General Indemnity Company (“USAA”), and other defendants claiming that USAA breached their contract and the covenant of good faith and fair dealing in relation to the installation of hardwood flooring at their home. They sought attorneys’ fees as damages under the Brandt v. Superior Court principle which allows for the recovery of attorney fees when an insurer’s tortious conduct compels the insured to hire an attorney to obtain policy benefits.

USAA sought to compel the plaintiffs to produce documents related to their attorney fees, arguing that by seeking Brandtfees, the plaintiffs had waived their attorney-client privilege regarding these documents. The plaintiffs objected, arguing that the requests were ambiguous, overbroad, and violated attorney-client privilege. The trial court granted USAA’s motion to compel, allowing the plaintiffs to redact any references they believed reflected attorney work product.

The plaintiffs then petitioned the Court of Appeal challenging the trial court's order. They argued that the trial court had forced them to waive their attorney-client privilege and had abused its discretion by ordering the production of all invoices, fee agreements, and payment history.

The Court of Appeal denied the plaintiff’s petition. It found that by seeking Brandt fees, the plaintiffs had impliedly waived their attorney-client privilege regarding the attorney fees documents. The Court also found no abuse of discretion in the trial court’s order allowing the plaintiffs to redact references they believed reflected attorney work product. The Court concluded that USAA had a right to learn about the attorney fees aspect of the plaintiffs’ alleged damages during discovery.

Court of Appeal holds that a party’s preemptory challenge to a judge reassigned to her case filed before trial began was timely where the parties were notified of the reassignment via telephone call from the court clerk

In Lorch v. Superior Court (Kia Motors America, Inc.) the case was originally assigned to Judge Robert C. Longstreth for all purposes. On the morning of Friday, February 2, 2024, counsel for both parties appeared for a pretrial conference before Judge Longstreth. Judge Longstreth advised counsel that he was trying another case, and counsel should therefore report back to his court on Monday, February 5, at 1:30 p.m., when he would advise the parties as to which judge would try their case. Later that same Friday, at 2:53 p.m., Judge Longstreth’s court clerk left a voicemail for Lorch’s counsel stating that the case had “been picked up by Judge [Timothy] Taylor” for purposes of trial. The next day, on Saturday, February 3, 2024, Lorch’s counsel submitted for filing her peremptory challenge to Judge Taylor under section 170.6 and served it on Kia. Lorch’s counsel mistakenly checked the form’s “party” box instead of the “attorney” box, signing it on behalf of Lorch rather than as counsel’s own declaration. The court file-stamped Lorch’s section 170.6 challenge at 10:16 a.m. on Monday, February 5. Judge Taylor then issued an order denying Lorch’s section 170.6 challenge on the grounds that it was “untimely” under a Local Rule and “not in proper form” because Lorch’s “attorney purport[ed] to sign for his client.” Lorch filed an appeal.

The Court of Appeal reversed finding that Lorch’s preemptory challenge was timely and effective. In so doing, the Court refused to apply a local rule governing the timing of such challenges.

Court of Appeal holds that trial court improperly awarded mediation-related fees and costs incurred after filing a motion to compel in sanctions award which were not reasonably incurred as a part of bringing the motion

Marriage of Moore was a marital dissolution proceeding between Monique Covington Moore (“Covington”) and Charles Moore. During the discovery process, Covington served deposition subpoenas for the production of business records on nonparties Rocket Lawyer, Inc. and Acendi Interactive Company, LLC. Both companies objected and refused to comply with most of the subpoenas’ demands. Covington then filed a motion to compel their compliance. The trial court found that Rocket Lawyer and Acendi did not act with the requisite substantial justification in resisting the subpoenas. The court ordered them to comply with most of the document demands, subject to a protective order, and imposed monetary sanctions against Covington in the amount of $25,000 which included mediation fees incurred after the motion was filed. The companies appealed, arguing that Covington’s motion was untimely, that her attempts to meet and confer were insufficient, and that the monetary sanctions were unreasonable, among other issues.

The Court of Appeal affirmed the trial court’s rulings in most respects. However, it agreed with the companies that the fees and costs Covington incurred in mediation as meet and confer attempts after her discovery motions were already filed were not compensable as discovery sanctions.

Court of Appeal holds that trial court retained jurisdiction to enforce settlement agreement because cross-complaint had not been dismissed yet and, therefore, the case remained “pending litigation.”

Eagle Fire and Water Restoration, Inc. v. City of Dinuba arose out of a construction project involving Eagle Fire and Water Restoration, Inc. (“Eagle”) and City of Dinuba (“City”). Eagle initially sued City which, in turn, filed a cross-complaint against Eagle. The parties reached an oral settlement on the record, but a dispute over the scope of the claims settled arose before the City dismissed its cross-complaint against Eagle. To resolve that dispute, City filed a motion under Code of Civil Procedure section 664.6 to enforce the settlement agreement. The trial court granted the motion and filed a judgment dismissing both Eagle’s complaint and the City’s cross-complaint with prejudice.

Eagle appealed, contending that (1) the trial court could not enforce the purported settlement because the court did not properly retain jurisdiction under section 664.6 over the complaint and after Eagle voluntarily dismissed its complaint; (2) the purported settlement agreement failed due to uncertainty; (3) the court made improper factual determinations in the absence of jurisdiction; and (4) the court misinterpreted the settlement agreement when it found claims not pleaded in Eagle’s complaint were released.

The Court of Appeal affirmed finding that the trial court had subject matter jurisdiction and personal jurisdiction over Eagle and the City when it enforced the settlement because the City’s cross-complaint had not been dismissed and, therefore, the case was “pending litigation” for purposes of section 664.6(a).

Court of Appeal holds that a confidentiality clause in an agreement was not enforceable when the clause repeatedly and explicitly stated that it created no enforceable rights

In Mueller v. Mueller Ling Mueller and Paul Mueller were a married couple who separated in 2017. During their marriage, they cultivated cannabis and buried the proceeds on their property. They initially attempted to use a collaborative law process to dissolve their marriage. They signed an agreement that outlined the collaborative process, including a confidentiality clause. However, the agreement also explicitly stated that it did not create any legally enforceable rights or obligations. During the second collaborative session, Ling became angry and left the meeting abruptly when asked about investments she had made using the proceeds from the couple's marijuana operation. She subsequently initiated divorce proceedings in family court.

In the family court, Paul subpoenaed both parties’ collaborative attorneys to testify about statements Ling made during the second collaborative session. Ling argued that the confidentiality clause in the agreement shielded her statements from disclosure. However, the court found the agreement, including the confidentiality clause, to be unenforceable. It also found that Ling had waived the confidentiality provision. As a result, it allowed the parties’ collaborative attorneys to testify about the second collaborative session. The court found Ling to be not credible and ordered her to make a $161,077 equalizing payment. Ling appealed.

The sole issue on appeal was the admissibility of testimony about the second collaborative session. This depended on whether the confidentiality clause was enforceable despite the agreement's multiple statements that it created no enforceable rights or obligations. The Court of Appeal found that the agreement unequivocally stated that it did not give either party enforceable legal rights. Therefore, the Court affirmed the family court’s decision that the confidentiality clause was unenforceable.

Court of Appeal holds that attorney work-product generated from an investigation as to whether client complied with public reporting statutory requirements was protected by the work-product privilege

In Southern California Edison Co. v. Los Angeles Superior Court plaintiffs, who paid policyholders for losses resulting from a fire known as the Creek Fire, sued Southern California Edison (“SCE”) under a subrogation theory to recover their payments. They alleged that an arc from SCE’s electric powerlines caused the fire. During discovery, SCE withheld certain documents, asserting they were generated during an attorney-led internal investigation into the cause of the fire and were protected by attorney-client privilege and the attorney work product doctrine. The plaintiffs moved to compel the production of these documents, arguing that SCE’s primary reason for conducting the investigation was to comply with state law requiring it to publicly report any involvement it had in causing the fire. The trial court agreed with the plaintiffs and compelled the production of the documents.

The Court of Appeal concluded that the trial court’s order improperly invaded the protection afforded by the attorney work product doctrine. Even where the dominant purpose of an attorney-directed internal investigation is to comply with a client’s public reporting requirement, attorney work product generated in connection with gathering facts to assist counsel in advising the client on how to comply with that statutory or regulatory reporting requirement remains protected. The Court held that since the plaintiffs did not show grounds for the production of their adversary’s work product, the trial court erred in compelling its production. The Court did not address whether the order also violated the attorney-client privilege.

Court of Appeal holds that Code of Civil Procedure section 203 only excludes from jury eligibility people required to register as a sex offender under Penal Code section 290, and not other sections

In TRC Operating Company, Inc. v. Chevron USA, Inc. TRC sued Chevron, claiming Chevron’s negligent maintenance and operation of its property for many years led to dangerous conditions which made it unsafe to perform cyclic steaming operations. These conditions led to the DOGGR shut-down orders, and to TRC’s harm and damages. Chevron countersued, claiming TRC’s failure to adequately maintain its own wells was the cause of the surface expression, the 2011 eruptions, and damages suffered by Chevron. The jury found in favor of TRC, awarding approximately $120 million in damages against Chevron. Nothing was awarded to Chevron.

The trial court granted Chevron’s motion for a new trial based on misconduct by Juror No. 10, because he failed to disclose (1) a 40-year-old criminal conviction which would have rendered him ineligible to serve as a juror, because he should have registered as a sex offender pursuant to Code of Civil Procedure section 203 and (2) his status as a party to a personal injury lawsuit nine years earlier. TRC appealed.

The Court of Appeal agreed with TRC and reversed. The Court held that section 203 renders ineligible only sex offenders required to register under Penal Code 290, not those required to register under adjacent sections of the same Penal Code article. The Legislature could reasonably choose not to render ineligible those required to register under the adjacent sections due to the difficulty of determining to whom they applied.

Note: The California Supreme Court granted review on September 25, 2024. The order provides that the Court of Appeal opinion may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 to choose between sides of any such conflict.

Court of Appeal finds holds that trial court abused its discretion in denying public interest attorneys’ fees under Code of Civil Procedure section 1021.5 to plaintiffs who successfully challenged school district’s proposed COVID-19 vaccination plan

In Let Them Choose v. San Diego Unified School Dist. the San Diego Unified School District (District) proposed a “Vaccination Roadmap” requiring students to be vaccinated against COVID-19 to attend in-person classes and participate in extracurricular activities. Plaintiffs, including an organization and an individual parent, challenged the District’s authority to impose this requirement, arguing that such decisions must be made at the state level. The trial court agreed, ruling that the Roadmap was preempted by state law, and judgment was entered in favor of the plaintiffs. The District appealed.

The Court of Appeal affirmed the trial court’s decision, holding that the local vaccination requirement conflicted with state law and that the state had fully occupied the field of school vaccination mandates.

Following this decision, the plaintiffs sought attorney’s fees under California’s private attorney general statute, Code of Civil Procedure section 1021.5. The trial court denied the motions, reasoning that the litigation did not enforce an important right affecting the public and that the District’s actions were commendable and did not adversely affect the public interest. Plaintiffs appealed.

The Court of Appeal reversed the trial court’s denial of attorney’s fees holding that the plaintiffs’ lawsuit enforced an important public right by ensuring that the District complied with state law regarding school vaccination requirements. The Court emphasized that the litigation conferred a significant benefit on the general public by upholding the state’s comprehensive immunization policy. The Court also rejected the trial court’s rationale that the District’s good intentions precluded an award of attorney’s fees, clarifying that the focus should be on the enforcement of public rights, not the subjective merits of the District’s actions. The case was remanded to the trial court to determine the appropriate amount of attorney’s fees.

Ninth Circuit holds that first-party litigation attorney fees are not covered by standard indemnity provisions, as a general matter under California law, unless it is explicitly stated otherwise in the contract

In AGK Sierra De Montserrat LP v. Comerica Bank AGK Sierra De Montserrat, L.P. (“AGK”) entered into a Purchase and Sale Agreement (“PSA”) with Comerica Bank (“Comerica”) for the purchase of lots in a residential subdivision. The PSA included an indemnity provision requiring Comerica to indemnify AGK against claims arising from Comerica’s position as the declarant. After the sale, Westwood Montserrat, Ltd. (“Westwood”) initiated several lawsuits against AGK, claiming declarant rights. Comerica refused to indemnify AGK, leading AGK to sue Comerica for breach of the indemnity provision.

The district court found that Comerica breached the indemnity agreement and awarded AGK attorney fees incurred in the underlying lawsuits with Westwood. Additionally, the district court, relying on the Ninth Circuit’s decision in DeWitt v. Western Pacific Railroad Co., awarded AGK attorney fees for the present breach of contract suit against Comerica. Comerica appealed the award of attorney fees for the present litigation.

The Ninth Circuit reversed the district court’s award of attorney fees for the present litigation. The Court held that DeWittwas only binding in the absence of subsequent indications from California courts that the interpretation was incorrect. Since DeWitt, California appellate courts have uniformly indicated that first-party attorney fees are not recoverable under an indemnity provision unless explicitly stated. The Ninth Circuit remanded the case to the district court to determine whether the attorney fees were otherwise recoverable under the PSA’s attorney fees provision. The court emphasized that indemnity provisions generally cover third-party claims, not first-party litigation costs, unless specific language indicates otherwise.

Court of Appeal holds that a California court could not exercise personal jurisdiction over Arab news outlets by virtue of their rebroadcast of an allegedly defamatory story in the United States via Dish Network

In Safieddine v. MBC FZ, LLC plaintiff, a U.S. citizen residing in Beirut, Lebanon, filed a defamation lawsuit against three media companies based in Dubai. The companies broadcast a news story on their Arabic language channels, which was rebroadcast in the U.S. via DISH Network and republished on their website and YouTube channel. The plaintiff alleged that the story falsely accused him of helping a Hezbollah leader launder money. The defendants moved to quash the lawsuit, arguing that California courts lacked personal jurisdiction over them due to insufficient contacts with the state.

The trial court granted the defendants’ motion to quash, finding that the defendants did not have sufficient minimum contacts with California to justify jurisdiction. The court noted that the defendants’ primary audience was in the Middle East and North Africa, and their U.S. viewership, including California, was minimal. The court also found that the plaintiff’s connections to California were not strong enough to establish jurisdiction. In addition, the trial court denied plaintiff’s request to conduct jurisdictional discovery.

The Court of Appeal affirmed holding that the defendants did not purposefully avail themselves of the California forum. The Court emphasized that the defendants’ broadcast was not specifically targeted at California but was part of a broader international distribution. The Court also noted that the plaintiff’s primary professional and personal connections were in Lebanon, not California, and thus the brunt of any harm from the alleged defamation would be felt in Lebanon. The Court concluded that the plaintiff failed to establish that the defendants’ conduct was expressly aimed at California, as required under the “effects test” from Calder v. Jones. The Court also upheld the trial court’s denial of the plaintiff's request for jurisdictional discovery, finding that further discovery was unlikely to produce evidence establishing jurisdiction.

California Supreme Court holds that in an administrative mandate proceeding, the time for filing an appeal does not begin to run until entry, or notice of entry, of judgment

In Meinhardt v. City of Sunnyvale David Meinhardt, a police officer, was suspended for 44 hours by the City of Sunnyvale Department of Public Safety, a decision upheld by the City of Sunnyvale Personnel Board. Meinhardt filed a petition for a writ of administrative mandate in the Santa Clara County Superior Court, challenging the suspension. On August 6, 2020, the court issued an order denying the petition. The City served Meinhardt with a notice of entry of this order on August 14, 2020. Subsequently, on September 25, 2020, the court entered a formal judgment, which Meinhardt served on the City on September 22, 2020. On October 15, 2020 Meinhardt appealed.

The Court of Appeal dismissed Meinhardt’s appeal as untimely, holding that the August 6 order was the final judgment from which the appeal should have been taken. The court reasoned that the order was sufficiently final to constitute the judgment, thus starting the 60-day period for filing an appeal. Meinhardt filed a petition for review with the California Supreme Court.

The California Supreme Court held that the time to appeal starts with the entry of a formal judgment or the service of notice of entry of judgment, not with the filing of an order or other ruling. The Court emphasized the importance of clear, bright-line rules to avoid confusion and ensure that parties do not inadvertently forfeit their right to appeal. Consequently, the Supreme Court reversed the judgment of the Court of Appeal, finding that Meinhardt’s appeal, filed within 60 days of the entry of the formal judgment (September 22, 2020), was timely.

Court of Appeal holds that defense counsel’s on-the-record oral stipulation to settlement terms was sufficient to render the settlement enforceable, so it was not error to enter judgment pursuant to the terms of the settlement

In Greisman v. FCA US, LLC Miriam Greisman bought a used 2014 Chrysler Town & Country, a vehicle that soon developed problems. When the problems could not be successfully addressed by the manufacturer, Greisman filed a lemon law action against the manufacturer, FCA, under the Song-Beverly Consumer Warranty Act. A mandatory settlement conference was held over Zoom, at the conclusion of which the parties advised the judge that the case was settled for $100,000. The settlement was confirmed on the record. An issue arose as to whether the settlement amount was inclusive or exclusive of attorney fees, resulting in the parties filing competing motions, including a motion by FCA to enforce the settlement pursuant to Code of Civil Procedure section 664.6 to enforce the settlement. The trial court ordered an evidentiary hearing on the settlement issue, which was held over four days. Following that hearing, the trial court filed an 11-page order approving the settlement—and finding that the $100,000 was inclusive of attorney fees. Greisman appealed.

On appeal Greisman argued that no oral settlement can be enforced under section 664.6 unless the parties themselves, not just their attorneys, stipulate to settle. And because defendants’ attorneys, not defendants themselves, consented to the oral settlement in this case, Greisman contended the trial court erred in granting the motion to enforce the settlement under section 664.6. The Court affirmed the finding that an enforceable settlement agreement was created by the oral statements of counsel on the record: “there is no dispute that the attorneys for both parties, in addition to Greisman herself, orally stipulated to settle the case before Judge Carringer at the MSC. This, as the trial court found, was sufficient to satisfy the requirement that the parties ‘stipulate . . . orally before the court, for settlement of the case.’ ”

Court of Appeal affirms trial court order denying a motion to disqualify counsel where prospective client did not provide relevant confidential information to an attorney or demonstrate she would be harmed by the information provided

In Syre v. Douglas Plaintiff Kimberly Syre appealed an order denying her motion to disqualify California Indian Legal Services (“CILS”) from representing defendant Mark Douglas. Syre had initially contacted CILS seeking representation for a quiet title lawsuit against Douglas but was declined due to her non-residency in Inyo County. She later filed the lawsuit using different counsel. Douglas, who is homeless and the son of the late property owner Charlotte Willett, successfully obtained representation from CILS. Syre argued that CILS had a conflict of interest due to her prior contact with them.

The trial court denied Syre’s motion to disqualify CILS, finding no conflict of interest. The court noted that Syre had only spoken to a non-attorney intake advocate at CILS and that no confidential information was shared with any attorney at CILS. The intake advocate had merely gathered preliminary information to determine Syre’s eligibility for CILS’s services, which she did not meet. The court also found that CILS had adequate screening measures in place to protect any confidential information.

The Court of Appeal affirmed holding that Syre was a prospective client but did not communicate any confidential information to an attorney at CILS. The Court emphasized that the information shared was preliminary and necessary to determine eligibility for CILS’s services. Additionally, the Court noted that public interest law offices like CILS are treated differently from private law firms regarding disqualification rules. The Court concluded that there was no substantial relationship between Syre and any attorney at CILS and that the trial court did not abuse its discretion in denying the motion to disqualify.

Court of Appeal holds that a defendant was not entitled to attorney’s fees following plaintiff’s voluntary dismissal despite a rejected 998 offer and a prevailing-party fees clause in a contract between the parties

In Riverside Mining Limited v. Quality Aggregates Riverside Mining Limited (“Riverside Mining”) leased 73 acres of its property to Quality Aggregates (“Quality”) for mining. Thereafter, disputes arose, leading Quality to sue Riverside Mining in 2021 for breach of contract, trespass, and quiet title. In 2022, Riverside Mining filed an unlawful detainer action to evict Quality for alleged lease breaches. The parties agreed that Quality would deposit monthly rent payments with the court during the litigation. Quality later made a settlement offer under Code of Civil Procedure section 998, which Riverside Mining did not accept. Riverside Mining then dismissed the unlawful detainer action without prejudice. Quality then moved for an award of attorney’s fees on the grounds that it was the prevailing party under Civil Code section 1717 and section 998.

The trial court dismissed the unlawful detainer action and later addressed Quality’s motion for attorney fees under section 998 based on an attorney’s fees provision in the lease. The court denied Quality’s motion for attorney fees.

The Court of Appeal affirmed holding that Quality was not entitled to attorney fees under section 998 because Civil Code section 1717 (b)(2), precludes awarding attorney fees when an action is voluntarily dismissed. The Court’s primary holding was that section 998 does not independently authorize attorney fees without an underlying statutory or contractual right, and Civil Code section 1717(b)(2), prevents such an award in cases of voluntary dismissal.

California Supreme Court holds that Code of Civil Procedure section 2023.030 gives courts authority to address egregious forms of discovery-related misconduct not otherwise addressed by the Discovery Act

In City of Los Angeles v. Pricewaterhousecoopers, LLP the City of Los Angeles (“City”) contracted with PricewaterhouseCoopers (“PwC”) to modernize the billing system for the Department of Water and Power (“LADWP”). The rollout in 2013 resulted in billing errors, leading the City to sue PwC in 2015, alleging fraudulent misrepresentation. Concurrently, a class action was filed against the City by Antwon Jones, represented by attorney Jack Landskroner, for overbilling. Discovery revealed that the City’s special counsel had orchestrated the class action to settle claims favorably for the City while planning to recover costs from PwC.

The trial court found that the City engaged in extensive discovery abuse to conceal its misconduct, including withholding documents and providing false testimony. The court imposed $2.5 million in monetary sanctions against the City under the Civil Discovery Act, specifically sections 2023.010 and 2023.030, which allow sanctions for discovery misuse. City appealed.

The Court of Appeal reversed the sanctions, interpreting the Civil Discovery Act as not granting general authority to impose sanctions for discovery misconduct beyond specific discovery methods. The Court of Appeal held that sections 2023.010 and 2023.030 do not independently authorize sanctions but must be read in conjunction with other provisions of the Act.

The Supreme Court of California reversed the Court of Appeal’s decision, holding that the trial court did have the authority to impose monetary sanctions under sections 2023.010 and 2023.030 for the City’s pattern of discovery abuse. The Supreme Court clarified that these sections provide general authority to sanction discovery misuse, including systemic abuses not covered by specific discovery method provisions.

Ninth Circuit holds that parties seeking to depose expert witnesses are responsible for the experts’ reasonable fees incurred during, and in preparation for, the depositions regardless of the ultimate admissibility of their opinions

In Miller v. Sawant two Seattle police officers, Scott Miller and Michael Spaulding, fatally shot Che Andre Taylor during an attempted arrest. Kshama Sawant, a Seattle City Council member, publicly referred to the incident as a “blatant murder” and later reiterated that Taylor was “murdered by the police.” Following an inquest, prosecutors declined to file charges against the officers due to insufficient evidence of malice. Miller and Spaulding subsequently filed a lawsuit alleging defamation and outrage under state law, as well as a federal defamation claim against Sawant.

The district dismissed the federal defamation claim but retained jurisdiction over the state law claims. The court later granted Sawant’s motion for summary judgment on the state law claims and awarded her expert witness deposition expenses, including fees for preparation time. Miller and Spaulding appealed the decision, challenging the award of expert witness fees and the admissibility of the expert’s opinions.

The Ninth Circuit affirmed holding that Federal Rule of Civil Procedure 26 allows for the recovery of reasonable expenses for time an expert witness spends preparing for a deposition. The Court joined other circuits in concluding that such preparation fees are recoverable under Rule 26. The Court found that the expert witness deposition preparation fees awarded to Sawant were reasonable and did not result in manifest injustice. The Court also noted that objections to the admissibility of the expert’s opinions did not negate the obligation to pay a reasonable fee under Rule 26.

Ninth Circuit holds that notice of removal filed after the defendant had received the complaint but before formal service was timely because the removal statute did not require formal service as a prerequisite

In Mayes v. America Hallmark Insurance Co. Michael Mayes filed a complaint against American Hallmark Insurance Company (“American Hallmark”) in state court. American Hallmark received a copy of the complaint and removed the case to federal court based on diversity jurisdiction before being formally served. Mayes moved to remand the case, arguing that removal was improper because American Hallmark had not yet been formally served.

A magistrate judge concluded that 28 U.S.C. section 1446(b)(1) does not require formal service before removal and recommended denying the motion to remand. The district court agreed with the magistrate judge’s interpretation and denied the motion to remand. Mayes appealed.

The Ninth Circuit affirmed holding that under section1446(b)(1), a defendant may remove a state-court civil action once it receives a copy of the complaint, without waiting for formal service. The Court clarified that the statute sets a deadline for removal but does not establish a “window” that prohibits removal before formal service. The Court also noted that the statutory context and precedent from other circuit courts support this interpretation.

Ninth Circuit holds that “reasonable diligence” is an express requirement to receive relief from judgment under FRCP 60(b)(2) even if the newly discovered evidence is “conclusive.”

In Marroquin v. City of Los Angeles Kimberly Marroquin sued Los Angeles Police Officer DiMaggio Rico and the City of Los Angeles (“City”) under 42 U.S.C. section 1983, alleging excessive force and negligence after being injured by a less-lethal projectile during a crowd control situation following a Lakers game. Marroquin claimed that the injury caused her substantial physical and emotional harm. The jury found in favor of Marroquin on her excessive force and negligence claims but awarded inconsistent damages: $1.00 against Officer Rico and $1,500,000.00 against the City.

The district court granted a new trial limited to damages under Federal Rule of Civil Procedure (“FRCP”) section 59(a)(1)(A), citing a miscarriage of justice due to the jury’s improper apportionment of damages. The court also denied the defendants’ motion for relief from judgment under FRCP 60(b)(2), which was based on newly discovered surveillance footage. The court found that the defendants failed to show reasonable diligence in discovering this evidence.

The Ninth Circuit affirmed the district court’s denial of the FRCP 60(b)(2) motion for relief from judgment, agreeing that there is no exception to the requirement of reasonable diligence, even if the newly discovered evidence is conclusive.

Court of Appeal holds that trial court did not abuse its discretion in awarding plaintiff her attorney’s fees despite the fact that plaintiff’s counsel’s misconduct lead to the need for another trial

In Simers v. Los Angeles Times Communications LLC a well-known columnist, T.J. Simers, sued his former employer, Los Angeles Times Communications LLC (“Times”) claiming he was demoted in 2013 and alleging constructive termination and age and disability discrimination under the Fair Employment and Housing Act (“FEHA”). The litigation spanned nine years and included three jury trials. The first trial resulted in a mixed verdict, with the jury awarding significant economic and noneconomic damages. However, the trial court granted the Times’ motion for judgment notwithstanding the verdict (“JNOV”) on the constructive termination claim and ordered a new trial on noneconomic damages.

Both parties appealed, and the Court of Appeal affirmed the trial court’s orders, necessitating a second trial. In the second trial, the jury awarded Simers $15.4 million in noneconomic damages, but the trial court granted a new trial due to misconduct by Simers’s counsel during closing arguments and the excessive nature of the damages awarded. The third trial focused solely on the amount of noneconomic damages, resulting in a $1.25 million award, which matched a pre-trial settlement offer made by the Times.

The trial court awarded Simers $3,264,906 in attorney fees (pursuant to FEHA) and $210,882.55 in costs, but excluded fees and costs incurred after the defendant’s settlement offer. Times appealed, arguing that fees for the second trial and the unsuccessful appeal should not be awarded due to counsel’s misconduct and the unrelated nature of the work. Simers cross-appealed, seeking recovery of appellate fees despite the trial court’s ruling. In the interim, Simers passed away, and his claims were continued by his wife.

The Court of Appeal affirmed the trial court’s order. The Court found no abuse of discretion in awarding fees for the second trial and the appeal, noting that the trial court had considered the misconduct and the overall reasonableness of the fees. The Court also upheld the exclusion of post-offer fees and costs, in line with statutory requirements under section Code of Civil Procedure section 998.

Ninth Circuit holds that excluding expert reports in their entirety in a summary judgment context was error where the reports relied on facts that were not speculative or unreliable, and exclusion resulted in prejudice

In Steven Hyer v. City and County of Honolulu Honolulu Police Department (“HPD”) officers responded to calls about Hyer’s erratic behavior. Hyer, who had a history of mental illness, barricaded himself in his apartment. After several hours of failed negotiations and attempts to subdue him, including the use of a Taser and chemical munitions, HPD officers deployed a police dog. When Hyer allegedly threatened the officers with a compound bow, Corporal Torres shot and killed him. Hyer’s heirs filed a wrongful death lawsuit against HPD and several officers involved in the shooting.

The district court granted summary judgment in favor of the defendants, the City and County of Honolulu, and several HPD officers. The court excluded the plaintiffs’ expert reports, finding them speculative, unreliable, and containing legal conclusions. The court ruled that the use of force was objectively reasonable and that the officers were entitled to qualified immunity. The court also dismissed the plaintiffs’ claims under the Americans with Disabilities Act (“ADA”) and various state law claims. Plaintiffs appealed.

The Ninth Circuit reversed holding that the district court erred in excluding the entirety of the plaintiffs’ expert reports, as the reports were based on sufficient facts and data. The Ninth Circuit found that the exclusion of these reports was prejudicial because they created genuine disputes of material fact regarding the reasonableness of the use of deadly force and chemical munitions, as well as potential ADA violations. The Court reversed the district court’s summary judgment on these claims but affirmed the grant of qualified immunity regarding the use of the police dog, as the law was not clearly established.

Ninth Circuit holds that district court erred in determining consumer lacked standing to pursue false advertising claim against sunscreen company when the district court resolved issues on the merits instead of focusing solely on standing

In Bowen v. Energizer Holdings, Inc. a Californian plaintiff purchased several bottles of Banana Boat sunscreen between 2017 and 2020, including Ultra Sport SPF 100, SPF 50, and SPF 30. She later discovered that the SPF 50 bottle contained 0.29 parts per million (ppm) of benzene, a known carcinogen. She alleged that the products were falsely advertised as “safe” and that the presence of benzene was not disclosed on the labels. The plaintiff claimed she would not have purchased the products, or would have paid less for them, had she known about the benzene contamination. Plaintiff sued the manufacturer in a district court in California.

Defendant file a motion to dismiss the complaint on the ground that plaintiff lacked standing to bring the claims. The district court dismissed the plaintiff’s suit for lack of Article III standing, concluding that she did not demonstrate a non-speculative increased health risk or actual economic harm. In so doing, the district court relied on the Federal Drug Administration’s guidelines permitting up to 2 ppm of benzene in sunscreen, determining that the plaintiff’s allegations did not establish that 0.29 ppm of benzene posed a credible risk of harm or economic injury.

The Ninth Circuit reversed the district court’s dismissal holding that the district court erred by resolving disputed facts in favor of the defendants and prematurely addressing merits issues intertwined with the jurisdictional question of standing. The Ninth Circuit found that the plaintiff adequately established an injury in fact for purposes of Article III standing, as she alleged economic harm from purchasing a product she would not have bought, or would have paid less for, absent the defendants’ misrepresentations. The Court also determined that the plaintiff met the causation and redressability elements of standing, as her injury was likely caused by the defendants’ alleged misrepresentations and could be redressed by judicial relief.

Court of Appeal holds that trial court erred in determining that plaintiff’s response to requests for admission, including waived objections, failed Code of Civil Procedure section 2033.220’s “substantial compliance” requirement

In Katayama v. Continental Investment Group plaintiff purchased a shopping center from the defendants in 2016, which included a dry-cleaning business. Before the sale, the defendants provided a 2013 visual inspection report but did not disclose a more detailed soil vapor survey report, which the plaintiff later discovered. After the purchase, the plaintiff incurred significant costs for cleaning up hazardous substances found in the soil. The plaintiff alleged that the defendants had withheld critical information about the property's condition.

Plaintiff filed a lawsuit in 2018, alleging fraud and violations of the Civil Code. During discovery, the defendants served requests for admission, which the plaintiff failed to respond to on time. The defendants moved to have the requests deemed admitted. The plaintiff later served a response with objections, but the trial court deemed the responses non-compliant and granted the defendants’ motion on the grounds that the responses were not in “substantial compliance” with the Code, imposing sanctions. The plaintiff’s subsequent motion to withdraw the deemed admissions was denied for failing to show mistake, inadvertence, or excusable neglect. Plaintiff appealed.

The Court of Appeal held that the presence of waived objections in the plaintiff’s proposed response did not necessarily prevent “substantial compliance” with the statutory requirements. Additionally, the Court found that the trial court had erred in its interpretation of the statute and that the plaintiff’s responses were substantially compliant. The Court reversed the trial court’s judgment and remanded the case for further proceedings, including vacating the order deeming the requests admitted, reconsidering sanctions, and allowing additional discovery. The plaintiff was awarded costs for the appeal.

In a FELA action against a railroad company, Court of Appeal holds that trial court’s order excluding expert testimony was error where the expert had experience and knowledge operating trains on tracks where accident occurred that could have assisted the jury in making its determination

In Richard v. Union Pacific Railroad Co. Terrence Richard, a brakeman for Union Pacific Railroad Company (“Union Pacific”), fell from a train and broke his leg while working. He sued Union Pacific for negligence under the Federal Employers’ Liability Act (“FELA”). Richard claimed that the locomotive engineer’s mishandling of the train caused a surge that led to his fall. Richard retained an expert, Richard Hess, who would have testified that the delay between releasing the train brakes and engaging the throttle caused excessive slack action, leading to a surge at the rear of the train where Richard was working. The trial court granted Union Pacific’s motion in limine to exclude the testimony of Hess. The trial court reasoned that Hess lacked the necessary qualifications and expertise. The trial court’s exclusion of this testimony left Richard without an expert to support his claim of negligent train handling. The trial court’s exclusion of this testimony left Richard without an expert to support his claim of negligent train handling. Thus, Union Pacific prevailed at trial, and Richard appealed.

The Court of Appeal reversed concluding that the trial court erred in excluding Hess’s testimony. The Court found that Hess’s extensive experience as a locomotive engineer qualified him to testify about the train handling practices and the potential dangers of the engineer’s actions. The exclusion of Hess’s testimony was deemed prejudicial because it deprived Richard of critical expert evidence to support his negligence claim. Consequently, the Court reversed the judgment for Union Pacific and remanded the matter for a new trial.

Court of Appeal holds that the trial court’s failure to issue a statement of decision when requested by the appealing party was prejudicial error since the failure to do so prevented appropriate appellate review

In Alafi v. Cohen Cohen, a professor at Stanford University, and his colleague discovered a genetic mutation linked to Huntington’s disease and formed a company, Nuredis, with Moshe and Chris Alafi, who invested $20 million. The Federal Drug Administration rejected Nuredis’s request for human clinical trials for the drug HD106 due to its toxicity, leading to the abandonment of the drug. The Alafis sued Cohen and his colleague for failing to disclose the drug’s history of toxicity. A bench trial resulted in a judgment for plaintiffs on the negligent misrepresentation claim against Cohen, awarding $20 million in damages.

Cohen appealed, arguing that the claim required an affirmative misrepresentation, that the plaintiffs did not rely on the alleged omission, and that they were aware of the drug’s history. He also contended that the trial court erred by not issuing a statement of decision upon his request. In a bench trial, the judge is required to issue a statement of decision when requested by a party pursuant to Code of Civil Procedure section 632 and California Rule of Court 3.1590(d) in order to provide the appellate court with a complete record of the trial.

The Court of Appeal found that the trial court’s failure to issue the requested statement of decision was prejudicial error, as it prevented effective appellate review of the trial court’s factual and legal findings. Consequently, the Court did not address Cohen’s arguments on the merits and reversed and remanded the case for the trial court to issue the statement of decision.

Court of Appeal holds a party was “judicially estopped” from seeking to vacate settlement agreement that it had previously moved to enforce

In Vaghashia v. Vaghashia Govind Vaghashia and other plaintiffs (“Govind Parties”) appealed a trial court order denying their motion to vacate a settlement agreement with Prashant and Mita Vaghashia. The settlement involved a $35 million payment from the Govind Parties to Prashant and Mita, with specific terms about collateral and property interests. Disputes arose over the interpretation and execution of the agreement, leading to motions to enforce the settlement by both parties. The trial court enforced the agreement largely in favor of Prashant and Mita, rejecting the Govind Parties’ interpretations.

In addition, the trial court found that the Govind Parties were judicially estopped from challenging the settlement agreement after previously moving to enforce it. The court concluded that the Govind Parties’ current position that the agreement was unenforceable was inconsistent with their earlier position that it was enforceable. The court also found that the Govind Parties had not taken their initial position due to ignorance, fraud, or mistake.

The Court of Appeal affirmed finding that the elements of judicial estoppel were met. Specifically, the Govind Parties had taken two totally inconsistent positions in judicial proceedings, and the trial court had accepted their initial position that the settlement was enforceable. The Court found no abuse of discretion in the trial court’s application of judicial estoppel and upheld the denial of the motion to vacate the settlement agreement.

Court of Appeal holds that there is no right to a voluntary dismissal without prejudice after amending complaint to omit a defendant; instead, the trial court has discretion to dismiss with prejudice upon motion by either party

In Haidet v. Del Mar Woods Homeowners Assn. Condominium owners Gregory and Kathleen Haidet filed a lawsuit against their homeowners’ association, Del Mar Woods Homeowners Association (“HOA”), alleging that their upstairs neighbors’ improperly installed floors constituted a nuisance. The HOA filed a demurrer to the Haidets’ initial complaint, which the trial court sustained, dismissing one cause of action without leave to amend and two with leave to amend. The Haidets chose not to amend their claims against the HOA and instead filed an amended complaint naming only other defendants. Subsequently, the Haidets filed a motion to dismiss the HOA without prejudice. Simultaneously, the HOA filed a motion to dismiss with prejudice. The trial court granted the HOA’s motion relying on Code of Civil Procedure section 581(f)(2), and related authorities, dismissed the action against the HOA with prejudice and awarded the HOA attorney fees in the amount of $48,229.08 pursuant to Civil Code section 5975(c) which permits an award of attorney’s fees to the prevailing party in an action governed by CC&Rs.

The Haidets appealed, arguing that the trial court should have dismissed the HOA without prejudice because they filed a timely amended complaint and could have stated valid claims against the HOA. The Haidets also challenged the trial court’s determination that the HOA was the “prevailing party” for purposes of Civil Code section 5975.

The Court of Appeal affirmed holding that the trial court was permitted to dismiss the HOA with prejudice under section 581(f)(2) since the Haidets failed to amend their claims against the HOA within the time allowed following the order sustaining the demurrer. The Court also upheld the trial court’s award of attorney fees to the HOA, concluding that the HOA was the prevailing party as it had achieved its litigation objectives by means of its successful demurrer and the Haidets’ omission of the HOA from their amended complaint.

Court of Appeal holds that the “discovery rule” may apply to delay the accrual of the statute of limitations of non-fraud civil enforcement actions by the City Attorney pursuant to the unfair competition law

In People v. Experian Data Corp. the San Diego City Attorney filed a complaint against Experian Data Corp. (“Experian”) for violating the unfair competition law (“UCL”) (codified in Business & Professions Code section 17200 et seq.) by failing to promptly notify consumers of a data breach as required by Civil Code section 1798.82(a). The City Attorney sought civil penalties and injunctive relief. The UCL claim was subject to a four-year statute of limitations, and the key issue was whether the discovery rule can delay the accrual of the statute in this non-fraud civil enforcement action.

The trial court initially overruled Experian’s demurrer which argued the complaint was barred by the four-year statute of limitations. The court found the complaint did not show on its face that the UCL claim accrued before March 6, 2014. However, the court later granted Experian’s motion in limine to exclude evidence relating to civil penalties, concluding the discovery rule did not apply to the UCL claim because it was a non-fraud claim and an enforcement action seeking civil penalties.

The Court of Appeal reversed, concluding that the discovery rule can apply to delay the accrual of the UCL claim. The Court found that the nature of the claim, the enforcement action seeking civil penalties, and the involvement of a governmental entity did not preclude the application of the discovery rule. The Court noted that the discovery rule has been applied to various types of claims, including those involving civil penalties and enforcement actions by governmental entities. Thus, the Court of Appeal reversed the trial court’s orders granting Experian’s motion in limine. The case was remanded for the trial court to reconsider the application of the discovery rule and determine when the UCL claim accrued based on the actual or constructive knowledge of the relevant actors.

Court of Appeal holds that trial court erred in enforcing an agreement’s forum selection clause when it assigned the burden of proof to the non-moving party instead of to the moving party

In The Comedy Store v. Moss Adams LLP The Comedy Store (“Store”), a stand-up comedy venue in Los Angeles, was forced to close for over a year due to COVID-19 restrictions. In July 2021, the Store hired Moss Adams LLP, an accounting firm, to help apply for a Shuttered Venue Operator Grant from the U.S. Small Business Administration. The parties signed an agreement that included a Washington choice of law provision and a forum selection clause mandating disputes be resolved in Washington state courts, along with a pre-dispute jury trial waiver. The Store alleged Moss Adams failed to inform it of the grant program’s impending expiration, causing it to miss the application deadline and lose an $8.5 million grant.

The Store initially filed a complaint in the United States District Court in Los Angeles, but the case was dismissed for lack of subject matter jurisdiction. The Store then refiled in the Los Angeles Superior Court, asserting claims including gross negligence and breach of fiduciary duty. Moss Adams moved to dismiss or stay the action based on the forum selection clause. The trial court granted the motion, contingent on Moss Adams stipulating that the Store could exercise its right to a jury trial in Washington. Moss Adams provided such a stipulation, and the trial court signed an order affirming the Store’s right to a jury trial in Washington. The Store appealed the trial court’s order.

The Court of Appeal reversed finding that the trial court erred by not properly applying the appropriate burden of proof, which required Moss Adams to show that litigating in Washington would not diminish the Store’s unwaivable right to a jury trial. The Court concluded that Moss Adams did not meet this burden, as Washington courts, contrary to California courts, have enforced pre-dispute jury waivers, and the stipulation offered by Moss Adams was not a binding modification of the agreement. The Court reversed the trial court’s decision and remanded with instructions to deny Moss Adams’ motion to dismiss or stay the action.

California Supreme Court invalidates the “judicially-created” two-year limit to bring Code of Civil Procedure section 437(d) motions to set aside judgments that are not void on their face

In California Capital Insurance v. Hoehn a fire destroyed the building where Cory Michael Hoehn and his roommate lived. The building’s insurer, California Capital Insurance Company (“Company”), determined that careless smoking caused the fire and sued Hoehn and his roommate for negligence, seeking damages. Company attempted to serve Hoehn with the complaint and summons, but the service was allegedly improper. A default judgment was entered against Hoehn in April 2011 in the amount of $486,528. Almost nine years later, in January of 2020, Hoehn learned of the default judgment when his wages were garnished and, in March of 2020, he moved to set aside the judgment pursuant to Code of Civil Procedure section 473(d) claiming he was never properly served.

The trial court denied Hoehn’s motion, ruling it was time-barred because it was filed more than two years after the default judgment. The court also found no extrinsic fraud or mistake. The Court of Appeal affirmed, relying on precedent that a motion to vacate a judgment for improper service must be made within two years if the judgment is not void on its face. The two-year deadline is not based on a statute (i.e. section 473(d)) but is rather created by prior appellate decisions.

The Supreme Court of California reviewed the case to determine the validity of the two-year time limit for such motions. The Court held that the “judicially created rule” imposing a two-year limit on motions to vacate void judgments for improper service is not supported by the statute’s text, legislative intent, or sound justification. Thus, the Court overruled those appellate opinions that imposed the two-year limit. The Court concluded that a motion to vacate a judgment void for lack of proper service under section 473(d) is not subject to a two-year limitation. In fact, the Court refused to provide any time limitation on such a motion.

Court of Appeal holds failure to raise a Code of Civil Procedure section 340.6 statute of limitations defense resulted in waiver and thus could not form the basis for defendant’s post-judgment appeal

In Shenefield v. Kovtun attorney Karolyn Kovtun held a meeting with Jennifer Shenefield and her client Mark Shenefield, despite a criminal protective order prohibiting Mark from contacting Jennifer. During the meeting, Mark and Kovtun verbally and emotionally abused Jennifer, and Kovtun threatened to remove their daughter from Jennifer’s custody if she did not sign a custody agreement. Jennifer signed the agreement under duress and contacted the police. Kovtun continued to represent Mark, who was later convicted of violating the protective order. Kovtun then sued Jennifer for recording the meeting without consent, prompting Jennifer to file a cross-complaint against Kovtun. Kovtun filed an answer to the cross-complaint but while the answer asserted other statute of limitations as affirmative defenses, it did not specifically assert or cite to section 340.6.

After a bench trial, the court found Kovtun liable for negligence, intentional infliction of emotional distress, intentional misrepresentation, and negligent misrepresentation, awarding Jennifer $50,000 in damages. Kovtun appealed, arguing that Jennifer’s claims were barred by the statute of limitations set forth in Code of Civil Procedure section 340.6 and the litigation privilege.

Following a long line of precedent, the Court of Appeal concluded that Kovtun waived the statute of limitations defense by failing to timely and properly plead it in his answer to the cross-complaint. The court affirmed the judgment against Kovtun, upholding the $50,000 damages award to Jennifer.

Court of Appeal holds that the addition of a trial court judge’s signature on a minute order granting nonsuit with “it is so ordered” did not transform the order into an appealable order

In Blauser v. Dubin Bettie Blauser filed an appeal following a trial trial. The notice of appeal referenced a purported judgment of dismissal, which was actually an unsigned minute order from the final day of a jury trial. The trial court issued the minute order, but it was not labeled as a “judgment” nor did it purport to enter judgment. Rather, the minute order merely indicated that the court granted a motion for nonsuit regarding the First Amended Complaint and dismissed the First Amended Cross-Complaint without prejudice.

The Court of Appeal invited the parties to brief the appealability of the order, raising concerns that the order was not appealable. The appellant was also invited to obtain a judgment of dismissal from the trial court to proceed with the appeal. However, the appellant filed a notice of entry of judgment or order, attaching the same minute order with the trial court’s signature and the phrase “it is so ordered” added.

Ultimately, the Court of Appeal held that the signed minute order was still not an appealable order or judgment. The Court emphasized that an appealable order or judgment is a jurisdictional prerequisite to an appeal. The Court cited the case Meinhardt v. City of Sunnyvale, which highlighted the necessity of a document identified as a “judgment” to trigger an appeal. As such, the Court dismissed the appeal without prejudice, allowing the appellant to file a notice of appeal from the judgment once it is properly entered by the trial court. The Court urged trial courts to enter separate, signed documents clearly labeled as judgments or orders of dismissal to avoid confusion and ensure clarity for parties and attorneys.

Note: As of the date of this Article, Blauser has not yet filed a second notice of appeal as suggested by the Court of Appeal.

Court of Appeal holds that instead of dismissing pro se plaintiffs’ complaint following sustaining of demurrer with leave to amend, trial court should have treated pro se plaintiffs’ untimely revised response to defendants’ demurrer as an amended complaint

In Bai v. Yip Plaintiffs, Junhai Bai and Xiaofei Li, filed a lawsuit against the San Francisco Unified School District and teacher Stephanie Yip, alleging that their minor daughter, L.B., was physically abused by Yip. The complaint detailed incidents of abuse, including insufficient food and water, physical assault, and resulting injuries such as a concussion and chest contusion. The plaintiffs sought monetary damages for mental harm, impairment of working ability, future illness risk compensation, and family care. Plaintiffs were not represented by counsel but were rather pro se plaintiffs.

The trial court sustained the defendants’ unopposed demurrer and granted their unopposed motion to strike portions of the complaint, allowing leave to amend but without specifying a deadline. Since a specific deadline was not provided by the court, the amended pleading was due to be filed ten days after notice of the ruling sustaining the demurrer pursuant to California Rule of Court 3.1320(g). Well after the 10-day deadline, plaintiffs filed a revised version of their complaint. The trial court did not consider this filing as an amended complaint. Defendants then moved to dismiss the action under Code of Civil Procedure section 581(f)(2) and (f)(4) which the court granted.

The Court of Appeal held that under the decision in Gitmed v. General Motors Corp., the filing of an amended complaint, even if untimely, precludes dismissal under section 581(f)(2) unless and until the amended complaint is stricken. The Court found that the plaintiffs’ revised pleading should have been treated as an amended complaint, which should have precluded the dismissal of the action. Consequently, the Court reversed the judgment and the order granting the motion to dismiss, remanding the case for further proceedings.

Court of Appeal holds that in post-judgment enforcement proceedings, trial courts may impose attorney’s fees against a nonparty for failure to comply with the trial court’s order

In Ofek Rachel, Ltd. v. Zion Ofek Rachel, Ltd. and M.M.N. Yad David, USA Ltd. (“Judgment Creditors”) obtained a 2016 judgment from an Israeli court against Suki Ben Zion (“Zion”). They then filed a lawsuit in New York state court to enforce the Israeli judgment, resulting in a 2017 judgment against Zion for $5.5 million. Despite claiming to have no assets, Zion was living lavishly, with his expenses being paid by his friend Chaim Cohen (“Cohen”). The judgment creditors served a document subpoena on Cohen for his American Express statements. Cohen filed a motion to quash in California state court which was initially granted. A second subpoena led to a court order compelling Cohen to comply, but Cohen’s responses were heavily redacted. Judgment Creditors filed a motion to compel against Cohen seeking unredacted statements. The motion was granted. When Cohen failed to comply, the Judgment Creditors filed a motion to hold him in contempt. The trial court found Cohen guilty on multiple counts of contempt and imposed a $3,000 fine. The court also ordered Cohen to pay $185,095.20 in attorney’s fees and $8,964.71 in costs pursuant to Code of Civil Procedure section 1218.

Cohen appealed. The Court of Appeal affirmed the trial court’s decision, holding that section 1218 allows for the imposition of attorney’s fees against a person who violates a court order in post-judgment enforcement proceedings, even if that person was not a party to the underlying litigation. The Court reasoned that the statutory language, legislative intent, and consistency with other post-judgment enforcement remedies supported this interpretation.

Ninth Circuit holds that a religious university had standing to pursue claims regarding anticipated enforcement of anti-discrimination law in response to its ongoing employment policies that discriminated based on sexual orientation

In Seattle Pacific University v. Ferguson Seattle Pacific University (“SPU”), a religious institution that, among other things, prohibits employees from engaging in same-sex intercourse and marriage. After receiving complaints, the Attorney General of the state of Washington requested documents related to SPU’s employment policies, employee complaints, and job descriptions as part of its investigation into the university’s employment policies and history under the Washington Law Against Discrimination (“WLAD”). Alleging First Amendment violations, SPU filed a lawsuit against the Attorney General seeking to enjoin the investigation and any future enforcement of WLAD.

The district court granted the Attorney General’s motion to dismiss based on lack of “redressability” and Youngerabstention (i.e. a “national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances”).

The Ninth Circuit affirmed in part and reversed in part. The Court held that SPU failed to allege a cognizable injury for its retrospective claims, as the Attorney General’s request for documents carried no penalties for non-compliance. However, the Court found that SPU had standing for its prospective pre-enforcement injury claims, as SPU intended to continue employment practices arguably proscribed by WLAD, the Attorney General had not disavowed its intent to investigate and enforce WLAD against SPU, and SPU’s injury was redressable. The Court also held that Younger abstention was not warranted as there was no pending state court proceedings, no ongoing enforcement actions or any court judgment.

In overruling the “Chevron deference doctrine” SCOTUS holds that the Administrative Procedure Act requires courts to exercise independent judgment in deciding whether an agency has acted within its statutory authority, rather than defer to agencies’ interpretation of ambiguous statutes

In Loper Bright Enterprises v. Raimondo plaintiffs were businesses that operate in the Atlantic herring fishery. They filed separate lawsuits challenging a rule issued by the National Marine Fisheries Service (“NMFS”) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”) amending its fishery management plans to empower it to require fishermen to pay for observers if federal funding became unavailable. The MSA incorporates the Administrative Procedure Act (“APA”). In relevant part, plaintiffs argued that the MSA does not authorize to mandate that they pay for observers required by a fishery management plan.

The district court granted summary judgment for the defendant (the United States Government). It concluded that the MSA authorized the rule but noted that even if plaintiffs’ “arguments were enough to raise an ambiguity in the statutory text,” deference to the agency’s interpretation would be warranted under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837 (1984). The Chevron opinion created the so-called “Chevron deference doctrine” which requires courts to defer to “permissible” agency interpretations of the statutes those agencies administer—even when a reviewing court reads the statute differently.

The First Circuit affirmed. The court ultimately concluded that the “[a]gency’s interpretation of its authority to require at-sea monitors who are paid for by owners of regulated vessels does not ‘exceed[ ] the bounds of the permissible.’ ” In reaching that conclusion, the First Circuit stated that it was applying the Chevron deference’s two-step framework.

The United States Supreme Court (“SCOTUS”) granted review to decide whether the Chevron deference doctrine should be overruled or clarified. In its opinion, SCOTUS overruled the Chevron deference doctrine, holding that it was inconsistent with the APA. The APA requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority. Courts may not defer to an agency’s interpretation of the law simply because a statute is ambiguous. The Court emphasized that while courts may seek “guidance” from the interpretations of those responsible for implementing particular statutes, they must not defer to these interpretations. Instead, they must independently interpret the statute and ensure that the agency has acted within its statutory authority.

For a more detailed discussion on the Loper opinion, please read our Ahead of the Curve article published in July of 2024.

Court of Appeal holds that a disabled decedent’s husband had standing to sue for injunctive relief under the Americans with Disabilities Act

In Saurman v. Peter's Landing Property Owner, LLC Kathleen Saurman, who had mobility impairments, fell on a small stairway at a restaurant while celebrating her 60th birthday. She subsequently died from an infection following surgery for a broken hip. Her husband, Robert, filed a wrongful death lawsuit against the restaurant’s former owner and later sued the current owner, Peter’s Landing Property Owner LLC (“Peter’s”), alleging violations of the Americans with Disabilities Act (“ADA”), the Unruh Civil Rights Act, and the Disabled Persons Act (“DPA”). Peter’s filed a motion for summary judgment which was granted by the trial court on the grounds that Robert lacked standing to bring an ADA claim for injunctive relief and had not provided evidence of any act or omission by the current owner. The court also imposed nearly $100,000 in sanctions against Robert’s attorney for pursuing what it deemed a frivolous lawsuit. Robert appealed.

The Court of Appeal reversed holding that under California law, a successor in interest has standing to bring an ADA claim for injunctive relief in state court, even if federal standing requirements are not met. The Court also found that there was a triable issue of fact regarding Peter’s compliance with the Unruh Act and the DPA, as the property remained in the same condition as when Kathleen fell. Consequently, the Court reversed the summary judgment on the ADA, Unruh Act, and DPA claims but affirmed the summary judgment on the claims for injunctive and declaratory relief. The Court also reversed the sanctions against Robert’s attorney and denied Peter’s’ motion for sanctions for a frivolous appeal.

California Supreme Court holds that, as an exception to the economic loss rule, a plaintiff may assert a fraudulent concealment claim arising from the performance of a contract if the elements of the claim can be established independently and the tortious conduct exposes plaintiff to a risk of harm beyond the parties’ reasonable contemplation

In Rattagan v. Uber Technologies, Inc. Michael R. Rattagan, an Argentinian lawyer, was retained by Uber Technologies, Inc. (“Uber”) through its Dutch subsidiaries to assist with launching Uber’s ridesharing platform in Argentina. Rattagan also agreed to act as the Dutch subsidiaries’ legal representative in Argentina, a role that exposed him to personal liability under Argentinian law. Despite warnings about potential personal exposure, Uber allegedly concealed its plans to launch the platform in Buenos Aires, which led to significant legal and reputational harm to Rattagan when the launch was deemed illegal by local authorities. Rattagan filed a lawsuit in federal district court in California asserting a claim for fraudulent concealment. The district court dismissed Rattagan’s complaint without leave to amend, ruling that his fraudulent concealment claims were barred by the economic loss rule as interpreted in Robinson Helicopter v. Dana Corp.The court concluded that Robinson provided only a narrow exception to the economic loss rule, which did not apply to Rattagan’s claims of fraudulent concealment. The court also found that Rattagan’s negligence and implied covenant claims were time-barred. Rattagan appealed to the Ninth Circuit which, in turn, asked the California Supreme Court to determine whether a plaintiff may assert a tort claim for fraudulent concealment arising from or related to the performance of a contract under California law.

The California Supreme Court held that a plaintiff may assert such a claim if the elements of the claim can be established independently of the parties’ contractual rights and obligations, and if the tortious conduct exposes the plaintiff to a risk of harm beyond the reasonable contemplation of the parties when they entered into the contract. The Court clarified that the economic loss rule does not bar tort recovery for fraudulent concealment in these circumstances.

Court of Appeal holds that Uber was not vicariously liable for driver’s negligence who logged off from the Uber driver app and struck a pedestrian minutes later

In Kim v. Uber Technologies, Inc. the plaintiff, a pedestrian, was injured when struck by a car driven by Ralph Wilson, who had been driving for Uber earlier that evening. Wilson had turned his Uber driver app to “offline” about four minutes before the accident and more than a mile away from the accident site. Wilson testified that he had finished driving for Uber for the night and was on his way home from McDonald’s when the accident occurred. The plaintiff argued that inconsistencies in Wilson’s testimony and Uber’s records created a triable issue of fact regarding whether Wilson was still operating as an Uber driver at the time of the accident.

The trial court granted summary judgment in favor of Uber finding that Wilson was acting in his personal capacity and not as an Uber driver at the time of the accident. The court deemed the plaintiff’s arguments speculative and irrelevant to establishing whether Wilson was acting within the scope of his employment with Uber at the time of the incident. Plaintiff appealed.

The Court of Appeal affirmed holding that the undisputed material facts demonstrated that Wilson was not acting as an Uber driver at the time of the accident. The Court found no evidence to support the plaintiff’s claim that Wilson intended to switch back to “available” status or that he was driving towards a “surge area.” The Court also held that the inconsistencies in Wilson’s testimony were immaterial to the issue of his status at the time of the accident.