Latest 10 Cases: Doe v. Dept. of Corrections and Rehabilitation (Civil Procedure), Gordon v. ARC Manufacturing, Inc. (Civil Procedure), City of ...

Taking Stock: A Review of Justice Stevens’s Last Book and an Appreciation of His Extraordinary Service on the Supreme Court

RODGER CITRON

Rodger D. Citron, the Associate Dean for Research and Scholarship and a Professor of Law at Touro College, Jacob D. Fuchsberg Law Center, comments on the late Justice John Paul Stevens’s last book, The Making of a Justice: Reflections on My First 94 Years. Citron laments that, in his view, the memoir is too long yet does not say enough, but he lauds the justice for his outstanding service on the Supreme Court.

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Doe v. Dept. of Corrections and Rehabilitation

Docket: E071224(Fourth Appellate District)

Opinion Date: December 19, 2019

Judge: Slough

Areas of Law: Civil Procedure, Civil Rights, Government & Administrative Law, Labor & Employment Law

Former psychologist at Ironwood State Prison (Ironwood), John Doe, sued his former employer, the California Department of Corrections and Rehabilitation (CDCR), under the California Fair Employment and Housing Act (FEHA) alleging discrimination, retaliation, and harassment based on disability. Doe also alleged CDCR violated FEHA by failing to accommodate his two disabilities, asthma and dyslexia, by relocating him to a cleaner and quieter office and providing him with requested computer equipment. Finding no triable issues of material fact, the trial court granted summary judgment in favor of CDCR. Finding no reversible error in that judgment, the Court of Appeal affirmed.

Gordon v. ARC Manufacturing, Inc.

Docket: D075373(Fourth Appellate District)

Opinion Date: December 19, 2019

Judge: Dato

Areas of Law: Civil Procedure, Construction Law, Labor & Employment Law, Personal Injury, Real Estate & Property Law

Beau Gordon, a professional roofer, fell 35 feet through a "camouflaged hole" in a warehouse roof he was inspecting. For the resulting head injury, a jury awarded Gordon approximately $875,000 against the building's owner, ARC Manufacturing, Inc. (ARC) and Joseph Meyers. The primary issue on appeal was whether the trial court correctly refused to instruct on primary assumption of risk where, as here, defendants did not hire or engage Gordon. The Court of Appeal concluded that primary assumption of risk did not apply, rejected appellants' other contentions, and affirmed the judgment.

City of Desert Hot Springs v. Valenti

Docket: E071694(Fourth Appellate District)

Opinion Date: December 19, 2019

Judge: Art W. McKinster

Areas of Law: Civil Procedure, Government & Administrative Law, Zoning, Planning & Land Use

The City of Desert Hot Springs (the City) tried to abate a public nuisance by serving the owner of a dilapidated hotel/motel with notice that it was required to correct numerous building and safety violations. When the owner failed to timely correct the violations or apply for a permit to raze the building, the City sought a declaration that the building constituted a nuisance and, pursuant to Health and Safety Code section 17980.7(c), requested the appointment of a receiver to oversee the building’s rehabilitation. Instead of addressing the notice and opportunity given to the owner of the hotel/motel and the proposed receiver’s qualifications, the trial court here questioned the viability of the proposed receiver’s financial and construction plan. And, having concluded the plan made no economic sense because the value of the property after its rehabilitation would not exceed the costs of rehabilitation plus the additional costs associated with appointment of a receiver, the court denied the City’s request and subsequently dismissed the action. The Court of Appeal concurred with the City which argued the court exceeded its authority under section 17980.7(c). Therefore, judgment was reversed and the matter remanded for the trial court to reconsider the City’s request for appointment of a receiver.

C.W. Howe Partners Inc. v. Mooradian

Docket: B290665(Second Appellate District)

Opinion Date: December 19, 2019

Judge: Dennis M. Perluss

Areas of Law: Civil Rights, Constitutional Law

The Court of Appeal affirmed the trial court's denial of defendants' anit-SLAPP motion in an action brought by plaintiffs for express indemnity, equitable indemnity, contribution and declaratory relief. The trial court held that none of plaintiffs' claims arose from protected speech or petitioning activity within the meaning of the anti-SLAPP statute, Code of Civil Procedure section 425.16. The court affirmed and held that plaintiffs' cross-complaint did not arise from defendants' protected petitioning activity. In this case, plaintiffs' cross-complaint arose from the alleged breach of their agreement to indemnify plaintiffs for any liability attributable to information provided by defendants or defendants' representatives and defendants' underlying fault with regard to their decisionmaking.

Smith v. LoanMe, Inc.

Docket: E069752(Fourth Appellate District)

Opinion Date: December 20, 2019

Judge: Menetrez

Areas of Law: Civil Rights, Consumer Law

Jeremiah Smith filed a class action complaint against LoanMe, Inc., alleging that LoanMe violated the California Invasion of Privacy Act. Smith alleged that LoanMe violated Penal Code section 632.7 by recording a phone call with Smith without his consent while he was using a cordless telephone, and he claimed that a “beep tone” at the beginning of the call did not constitute sufficient notice that LoanMe was recording the call. In a bifurcated trial about the beep tone issue, the trial court concluded that: (1) the beep tone provided sufficient notice to Smith that the call was being recorded; and (2) Smith implicitly consented to being recorded by remaining on the call. The Court of Appeal concluded section 632.7 prohibited only third party eavesdroppers from intentionally recording telephonic communications involving at least one cellular or cordless telephone. Conversely, section 632.7 did not prohibit the participants in a phone call from intentionally recording it. Consequently, Smith failed to state a claim against LoanMe under section 632.7. The Court therefore affirmed dismissal of Smith’s lawsuit.

California v. Keene

Docket: D074871(Fourth Appellate District)

Opinion Date: December 20, 2019

Judge: Richard D. Huffman

Areas of Law: Constitutional Law, Criminal Law

Appellant Donald Keene sought, for the first time on appeal, to challenge the trial court's imposition of various fines, fees and assessments as part of his sentence for one count of failure to register as a sex offender. The Court of Appeal found the issue had been forfeited by failure to raise it at the sentencing hearing. Since Keene did not challenge his conviction or any other part of his sentence, the Court affirmed the trial court.

California v. Windfield

Docket: E055062B(Fourth Appellate District)

Opinion Date: December 20, 2019

Judge: Manuel A. Ramirez

Areas of Law: Constitutional Law, Criminal Law

Defendants Harquan Johnson and KeAndre Windfield were each convicted of one count of murder and one count of attempted murder, and assault with a semi-automatic firearm, along with gun discharge and gang enhancement allegations as to the murder and attempted murder counts. The charges arose from the shooting of two members of their own gang, the Ramona Blocc Hustlas, resulting in the death of one of them. Both were sentenced to prison for 90 years to life. They appealed raising various claims. In the original opinion (filed August 19, 2014), the Court of Appeal affirmed the convictions for both defendants, but reversed Johnson’s sentence pursuant to California v. Gutierrez, 58 Cal.4th 1354 (2014), because, as a juvenile at the time of the crime, his sentence of 90 years to life was the functional equivalent of a term of life without possibility of parole and the Court directed other modifications of the sentence and abstracts of judgment. On November 12, 2014, the California Supreme Court denied both defendants’ petitions for review, but, on its own motion, issued a grant-and-hold of review as to defendant Johnson, for consideration pending review in In re Alatriste, S214652, In re Bonilla, S214960, and California v. Franklin, S217699. On May 26, 2016, the Supreme Court issued its decision in California v. Franklin, 63 Cal.4th 261 (2016), and retransferred this case to the Court of Appeal with directions to vacate its opinion and to reconsider Johnson’s sentence in light of Franklin. The appellate court vacated the original opinion and issued a second opinion on September 28, 2016, affirming those portions of its original opinion relating to issues not subject to the grant and hold, and reconsidered Johnson's sentencing claim in light of Franklin. Defendants again petitioned for review. This time, the Supreme Court granted review, deferring further action pending consideration and disposition of a related issue in California v. Canizales, which was then pending in that court. Following the issuance of that opinion, the Supreme Court retransferred the cases back to the Court of Appeal with directions to vacate its opinion and to reconsider the cause in light of Canizales, 7 Cal.5th 591 (2019), and California v. Perez, 3 Cal.App.5th 612 (2016). In so doing, the Court of appeal affirmed convictions for both defendants, affirmed the sentence as to Winfield, but ordered a limited remand for a hearing at the trial court wherein both defendant and the State could make an accurate record of the defendant's characteristics and circumstances at the time of the offense. The Court also ordered a limited remand of Johnson’s sentence to provide an opportunity to present evidence of mitigation due to his youth, pursuant to the holding of Franklin.

SF Urban Forest Coalition v. City and County of San Francisco

Docket: A155098(First Appellate District)

Opinion Date: December 19, 2019

Judge: Margulies

Areas of Law: Government & Administrative Law, Transportation Law

The 1986 Bay Area County Traffic and Transportation Funding Act (Pub. Util. Code 131000) established a framework for counties and cities within the nine-county San Francisco Bay area to collectively develop and implement traffic and transportation projects and authorized the voters in those counties to create a county transportation authority to implement a retail transactions and use tax for funding a local transportation plan. San Francisco voters approved the creation of the San Francisco County Transportation Authority (SFCTA). Urban submitted public records requests to the SFCTA under the California Public Records Act (Gov. Code 6250) and the Sunshine Ordinance. SFCTA claimed it was not subject to the Sunshine Ordinance. Urban filed suit. After the parties resolved the outstanding records request issue, the trial court concluded the request for declaratory relief was not moot “due to the SFCTA’s position that it is not subject to the Sunshine Ordinance, which is sufficient to establish an actual controversy” then concluded the SFCTA is a state agency, exempt from the Ordinance. The court of appeal affirmed. Local public agencies are distinct from the cities and counties they serve. While the SFCTA may be classified as a local agency based on the scope of its functions, it remains an agency of the state. The Sunshine Ordinance indicates that it is limited to city agencies.

Safeway Wage and Hour Cases

Docket: B287103(Second Appellate District)

Opinion Date: December 19, 2019

Judge: Nora M. Manella

Areas of Law: Labor & Employment Law

Former managers of Safeway supermarket stores filed suit seeking unpaid overtime wages, claiming they had been misclassified as exempt executives under regulations applicable to the mercantile industry. A jury found that Safeway had proven that William Cunningham had been an exempt employee and was therefore not entitled to overtime pay. Cunningham challenged the trial court's instruction based on the language in Batze v. Safeway, Inc. (2017) 10 Cal.App.5th 440, and Heyen v. Safeway Inc. (2013) 216 Cal.App.4th 795. The Court of Appeal affirmed the trial court's judgment and clarified that a task does not become exempt merely because the manager undertakes it in order to contribute to the smooth functioning of the store. The court held that an instruction on the consideration of the manager’s purpose, where appropriate, must inform the jury of relevant limiting principles outlined in the applicable regulations and recognized by the court's prior decisions. Therefore, the court held that the trial court's instruction did not affect the jury's verdict. The court also held that the trial court did not abuse its discretion in admitting the contested expert testimony under the circumstances of this case.

Beames v. City of Visalia

Docket: F075855(Fifth Appellate District)

Opinion Date: December 19, 2019

Judge: Smith

Areas of Law: Legal Ethics

After plaintiff obtained a writ relief when a City of Visalia hearing officer ruled against him in a zoning dispute, his motion for attorney's fees under the Civil Rights Act of 1976 was denied. In this case, plaintiff's writ petition sought relief on the basis of procedural violations of the city's municipal code committed by the hearing officer at the hearing, and the petition made a claim under the Civil Rights Act of 1871. The Court of Appeal held that the denial of plaintiff's fee motion under 42 U.S.C. 1988 was an abuse of discretion, because plaintiff was a prevailing plaintiff where he succeeded on a significant issue, his section 1983 claim was substantial, and he prevailed on a state law claim based on the same facts as the section 1983 claim. Furthermore, the city's treatment of plaintiff was not in the public's interest or welfare. In this case, at every opportunity to ameliorate the situation, the city seemingly chose to make matters worse. After the administrative hearing where the city's conduct forced plaintiff to go to court, the city only got more aggressive. The court rejected the city's municipal liability claims; held that Farrar v. Hobby (1992) 506 U.S. 103, supported an award of attorney's fees; and rejected the city's remaining arguments.