Week in Review (April 02, 2018)

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Week of:                        March 26, 2018

Publication Date:        April 02, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • Is Raad Al-Shaikh v. State Department of Health Care Services; where the court of appeals ordered that Mr. Al-Shaikh be awarded $7,500 in attorneys’ fees and costs upon prevailing against the California Department of Health Care Services. In making its determination based on the Department’s ignorance of federal law, the court held that the Department “has an obligation to be knowledgeable about the law it is charged with implementing.”  And was therefore acting without substantial justification in refusing to issue a Medi-Cal provider permit to Mr. Al-Shaikh in a new office location.
  • Is City and County of San Francisco et alterius v. Homeaway.com, Inc.; where the court of appeals affirmed San Francisco’s right to enforce an administrative subpoena for Homeaway.com’s rental transaction information, for tax collection purposes.
  • Is New Cingular Wireless PCS, LLC et alterius v. Public Utilities Commission [Real Party in Interest] The Utility Reform Network et alterius; where the court of appeals granted AT&T’s petition to restrict the award of the Utility Reform Network and others who intervened in a administrative proceeding that resulted in new rules. The Court held that even if the interveners are entitled to compensation, such compensation is limited to reasonable costs incurred in preparing or presenting the contention or recommendation that was adopted – not every penny requested.
  • Is J. v. The Superior Court [Real Party in Interest] San Francisco Human Services Agency; where the court of appeals granted mother T.J.’s writ when the court determined that the trial court prematurely terminated reunification services for 3 minor children when T.J. is intellectually disabled, was wait-listed for numerous therapeutic services that were required components of her case plan, and was provided no assistance with support services, anger management, or housing.
  • Is The People v. Nanette Sheree Dillard et alterius; where the court of appeals reversed two of Ms. Dillard and Mr. Daniels’ convictions related to theft and larceny of public monies under the federal preemption doctrine of obstacle preemption. The court held that permitting state criminal prosecutions based on representations made to the Federal Health and Human Services Agency would stand as an obstacle to the work of that federal agency.  The remaining convictions were affirmed and the case was remanded for re-sentencing.

From the Second Appellate District –

  • Is Simona Wilson v. Southern California Edison Company; where the appeals court remanded this case back to the trial court for a third trial after a second multi-million dollar verdict, when the court determined that the trial court erred by admitting evidence that was irrelevant to Ms. Wilson’s claim that Edison caused her to lose her house next to a power substation due to stray voltage incidents, the admitted evidence was deemed prejudicial to Edison’s defense.
  • In Walt Disney Parks and Resorts U.S., Inc. v. The Superior Court of Los Angeles County [Real Party in Interest] Johnny Galvan et alterius; the court of appeals granted a writ of mandate directing the trial court to consider Walt Disney Parks motion to transfer venue, which the trial court denied as time-barred. The court of appeals held that the facts did not support a finding that Disney waived its right as a matter of law when the matter had been removed to Federal Court and then remanded back to trial court.
  • Is In re the Marriage of Sandra and Leon E. Swain [OR] Sandra Swain v. Leon E. Swain; where the court of appeals reversed the trial court’s determination of spousal support. Specifically, the appeals court held that the trial court should not have relied on a declaration made by Ms. Swain of which Mr. Swain did not have the opportunity to cross-examine Ms. Swain about, and there was no other evidence regarding Ms. Swain’s need for spousal support.
  • Is Olivia de Havilland v. FX Networks, LLC et alterius; beginning with the tautological observation that “Filmmakers make films” the appeals court reversed the trial court allowing Ms. Havilland’s suit to go forward, and held that the Anti-SLAPP motion filed by FX Networks should have been granted. The court’s analysis concluded that individuals do not have an ownership interest in their own histories nor a right to be compensated for their stories, as “the First Amendment simply does not require such acquisition agreements.”
  • In Robert S. Greenfield et alterius v. Mandalay Shores Community Association; the court of appeals reversed the trial court, and ordered that a preliminary injunction should issue preventing the Community Association from levying fines against Mr. Greenfield based on the Community Association’s 2016 ban on Short-Term Rentals. The court held that the ban on Short-Term Rentals constituted an impermissible monetary barrier to beach access under the Coastal Act, and that “[Short-Term Rental]s may not be regulated by private actors where it affects the intensity of use or access to single family residences in a coastal zone… [such changes] must be decided by [the] City and the Coastal Commission, not a homeowner’s association.”
  • Is Michael Demeter v. Taxi Computer Services, Inc. et alterius; where the court of appeals affirmed entry of judgment in favor of Taxi, who failed to post a required bond under California’s Fee-Related Talent Services Law, when there was no evidence presented that Mr. Demeter was injured due to Taxi’s failure to post the required bond.
  • Is Timed Out, LLC v. 13359 Corporation; where the court affirmed the determination of the trial court in awarding 13359’s attorney’s fees from the time after it made its Section 998 offer to compromise, and attorneys’ fees to Timed Out for the time before the offer. While Timed Out technically succeeded at trial, the amount was less than the 998 offer, exclusive of attorneys’ fees.  Since the 998 offer permitted Timed Out to pursue its statutory attorneys’ fees, and the substantive award was less than the amount offered, the appeals court upheld the result.
  • Is The People v. Kody Lee Samuels; where the court of appeals considered how the Criminal Justice Realignment Act operates in the context of punishment for an unrelated case under the community-based ‘split sentence’ program that allows time credits against a term of imprisonment when under mandatory supervision. Here, it was determined that Mr. Samuels’ one year incarceration for ‘possession of methamphetamine for sale’ did not count as credit towards his mandatory supervision sentence for ‘unlawful driving or taking of a vehicle,’ as he was not in ‘actual custody’ for the vehicle case during his term of imprisonment for the drug case.
  • Is The People v. Corey Johnson; where the court affirmed entry of judgment against Mr. Johnson for his plea of no contest on one count of sale of controlled substance for the benefit of a street gang. In Mr. Johnson’s appeal he contended that the search that uncovered the drugs was improper, but the appellate court held that it was permissible as the police had reason to believe the car contained evidence relevant to Mr. Johnson’s arrest on selling drugs.
  • Is EHM Productions, Inc. v. Starline Tours of Hollywood, Inc.; where the court affirmed an arbitration award on a contract dispute that had previously been awarded and affirmed by a JAMS arbitrator, a JAMS appellate panel, and a trial court judge when EHM Productions is unable to demonstrate any error in either the proceedings or the award.
  • Is Paul Aron v. WIB Holdings et alterius; where the appeals court reversed the grant of a new trial and affirmed a prior order granting WIB’s Anti-SLAPP motion. The issue confronted by the courts in this case was whether a determination on appeal in a separate case constituted ‘newly discovered evidence’ for the purposes of a motion for a new trial.  The court of appeals held that “newly discovered evidence” only includes evidence that was in existence at the time the original motion or trial occurred, but went undiscovered at that time.  Here, as the appellate decision for the separate case was issued after the determination in this one, the evidence was not “newly discovered,” and so a new trial is not warranted.
  • Is Urgent Care Medical Services et alterius v. City of Pasadena [AND] City of Pasadena v. Medical Cannabis Caregivers Institute et alterius; where the court of appeal upheld the trial court’s injunction prohibiting Urgent Care, Medical Cannabis, and others from opening or operating medical marijuana dispensaries within the Pasadena City limits under Pasadena’s municipal code rendering such activities a nuisance per se. The court rejected the appeal on the basis of Pasadena’s zoning scheme rendering all non-permitted uses nuisances per se.
  • Is Conservatorship of Person and Estate of P.D. [OR] Public Guardian of the County of Ventura v. P.D.; where the court affirmed the conservatorship of the person and estate of P.D. even though the trial court erroneously informed the jury of the consequences of such a verdict. The Court held that the error was harmless here when the overwhelming evidence supported the determination based on P.D.’s own fantastical testimony, and that of expert witnesses.

From the Third Appellate District –

  • Is Thomas P. Guarino v. County of Siskiyou et alterius; where the court of appeals affirmed entry of judgment on an Anti-SLAPP motion, where the County and Individual Members of the Board of Supervisors engaged in various official acts that ultimately removed Mr. Guarino as County Counsel. The courts both held that the acts were protected, and that Mr. Guarino could not identify evidence that showed he had a likelihood of success.

From the Fourth Appellate District –

  • Is The People v. D’Mare Atte Franklin; where the court of appeals affirmed the conviction of Mr. Franklin for the assault and attempted murder of Mr. Terry B. and the assault of Mr. Jamar B. with a firearm; but remanded the case for reconsideration on the firearm enhancements to each charge based on the recent legislative changes to the sentencing scheme for firearm enhancements.
  • Is The People v. Salvador Oswaldo Chavez et alterius; where the court of appeals affirmed the sentences of Mr. Chavez and Mr. Gonzalez on charges of assault with a deadly weapon, a knife, and second degree murder with a firearm. While one of the justices would have remanded the issue of the firearms enhancement to the trial court for reconsideration, the remaining justices reasoned that the trial court’s imposition of the maximum sentence rendered such further consideration unnecessary.
  • Is S. v. D.M.; where the court of appeals reversed and remanded for reconsideration the trial court’s denial of attorney’s fees and travel costs in a custody dispute playing out between mother, N.S. who lives in California, and father, D.M. who lives in Illinois. The litigation required N.S. to travel from San Diego to Santa Clara County and retain Illinois counsel, for which she requested reimbursement from D.M. – the trial court is directed to consider whether N.S. qualifies for needs-based fees and costs.
  • Is The People v. Adrian Raphael Vela; where the court of appeals conditionally reversed and remanded Mr. Vela’s case, as Proposition 57 retroactively requires that minor children charged with criminal offenses have their charges filed before a juvenile judge, and any determination to try the minor as an adult must be determined by that judge. Here, because the prosecutor filed the charges with an “adult” criminal court, the case must be remanded and conditionally reversed.
  • Is 1901 First Street Owner, LLC v. Tustin Unified School District; where the court affirmed judgment in favor of the School District when an apartment unit developer sought to recoup school fees paid on the entire square footage of its development, seeking to limit it solely to the units themselves. The Court held that the word “structure” applied to the entire structure, and that 1901 First Street could not rely on the city’s prior, incorrect, application of the law.

Additionally, there is a modification published this week by the Fourth Appellate District that changes the result of a previously published case:

  • Specifically, In re the Marriage of Donald and Tonya Pearson, which was originally published on March 12, 2018, and addressed Mr. Pearson’s performance-based cash bonus in the marital settlement agreement and confirmed the imposition of $50,000 in sanctions against Ms. Pearson. In its March 27th modification, the court of appeals decided to remand the issue of Ms. Pearson’s ability to work to the trial court for further consideration, along with whether Ms. Pearson’s ability to work affects her right to spousal support and attorney fees.

From the Fifth Appellate District –

  • Is Erik Rodriguez v. Department of Transportation; where the court of appeal affirmed entry of judgment in favor of CalTrans, holding that for the defense of design immunity to apply to a public road, the necessary element of discretionary approval by the public entity does not require actual consideration of safety features, it only requires that the approved of design was reasonable on its own merits.
  • Is The People v. Reynaldo Gonzalez Gutierrez; where the court of appeal reversed judgment against Mr. Gutierrez on drug possession and illegal sale of ammunition charges. The Court determined that the extended detention of Mr. Gutierrez that ultimately led to his arrest was unreasonable under the Fourth Amendment when the sole reason for the initial detention was to conduct a random probation search of an associate, Mr. Beltran.

From the Sixth Appellate District –

  • Is Aaron Persky v. Shannon Bushey [Real Parties in Interest] Michele Dauber et alterius [With Intervener] Alex Padilla; where the court of appeals denied Judge Persky’s appeal from the trial court’s determination that the county registrar of voters was the correct official to review a recall petition. Judge Pesrky had argued that, as a state officer, the correct venue for a review should be with the Secretary of State, but both the trial court and the appeals court held that the California Constitution both allowed and required that the election and recall of superior court judges be handled on a county-by-county basis.  While Superior Court judges may be state officers for some purposes, they are not state officers for all purposes.

From the Appellate Division of the San Diego County Superior Court

  • Is The People v. Jeoffrey Wolf [AND] The People v. Thomas Varuolo; where the appellate division denied the appeals of Mr. Wolf and Mr. Varuolo, who argued that the San Diego County District Attorney could not authorize City of San Diego Deputy City Attorneys to prosecute misdemeanors arising out of conduct that occurred in the City of Poway. The Court analyzed the issue under the legal doctrine of Quo Warranto, or usurpation of the legal authority of a public officer, but held that the Government Code provides the mechanisms for such authorization, and determined that such mechanisms were engaged in Mr. Wolf and Mr. Varuolo’s cases.

Appellate Decisions – In Depth Review

Olivia de Havilland v. FX Networks, LLC et alterius

    On Monday, March 26, 2018, Justices Egerton, Edmon, and Dhanidina reversed Los Angeles County Superior Court Jude Kendig’s denial of FX Network’s special motion to strike Ms. de Havilland’s complaint, and ordered that the motion be granted. This case arises out of a dispute between Ms. de Havilland and FX Networks regarding Ms. de Havilland’s portrayal in FX Network’s 2017 documentary/drama “Feud:  Bette and Joan”, where Ms. de Havilland alleges that FX Networks improperly used her image, mischaracterized her history, and failed to obtain her permission to use her as a character in the series.  After filing a complaint in June 2017, FX Networks moved to strike the complaint under the special motion to strike strategic lawsuits against public participation, more commonly known as an Anti-SLAPP motion.  Under the two-prong analysis of Anti-SLAPP, the trial court held that the docudrama constituted protected speech, but ultimately held that Ms. de Havilland demonstrated a likelihood of success due to the fact that FX Networks gave no compensation to Ms. de Havilland and did not nothing transformative to Ms. de Havilland’s character such that the use was permissible without compensation.

    On appeal, the court reasoned that the trial court erred in finding that Ms. de Havilland’s suit had a likelihood of success.  The court relied on both federal and recent state-law precedent in determining that so long at the work is not simply a disguised commercial advertisement for the sale of goods or services, an individual does not have the right to compensation for their image when their image is used for documentary purposes.  Specifically, referring to the common practice of paying individuals for their stories, the court noted that “Producers of films and television programs may enter into agreements with individuals portrayed in those works for a variety of reasons, including access to the person’s recollections of ‘story’ the producers would not otherwise have, or a desire to avoid litigation for a reasonable fee.  But the First Amendment simply does not require such acquisition agreements.”  In any event, the court also held that the work is transformative, as Ms. de Havilland’s character is merely one of the raw elements synthesized in crafting the artistic work as a whole, and that the marketability and economic value of “Feud” does not primarily rely on Ms. de Havilland’s character or fame.  On these bases, the appeals court ordered that the trial court be reversed, and that the Anti-SLAPP motion be granted in its entirety.

Robert S. Greenfield et alterius v. Mandalay Shores Community Association

    On Tuesday, March 27, 2018, Justices Yegan, Perren, and Tangman reversed Ventura County Superior Court Judge Kellegrew’s denial of a preliminary injunction against Mandalay Shores, preventing them from assessing penalties for Mr. Greenfield’s use of his property as a Short-Term Rental. This case begins in 2015, when Mr. Greenfield started to offer his home, located within Mandalay Shores’ homeowner’s association, for use as a short-term rental location – allowing people to rent his beach-side property for less than 30 days.  In June 2016 Mandalay Shores adopted a resolution imposing escalating fines on any property used for short-term rentals, ranging from an initial $1,000 up to a $5,000 fine per offense.  Because the Mandalay Shores Community Association is located directly adjacent to the beach, the California Coastal Commission became involved, and advised the City of Oxnard, where the homeowner’s association is located, that any Short-Term Resident ban would constitute a ‘development’ under the California Coastal Act, and that any Short Term Resident ban would require the City to seek the review and permission of the Coastal Commission prior to implementation.  On hearing the arguments for the injunction for the instant litigation, the trial court ultimately determined that the Short Term Resident ban did not constitute a ‘development’ under the Coastal Act, and that the preliminary injunction could not be issued on that basis.

    The court of appeals reversed, and instead determined that the preliminary injunction should be issued because when the trial court interpreted the ambiguous language of the term ‘development’ in the Coastal Act, the trail court erred in failing to observe that the Coastal Act requires that its language be interpreted in order to affect the greatest accessibility to the beaches as possible for the public.  Here, because the relevant zoning laws in Oxnard permitted Short Term Rentals, Mandalay Shores’ prohibitory resolution effectively created a pay-wall between members of the public and access to the beach.  As the purpose of the Coastal Act is to guarantee access to public beaches to the public, including members of the public seeking only short-term access, the resolution is improper and such changes in zoning use and intensity must be made by the City in conjunction with the Coastal Commission.  Accordingly, the court ordered that the injunction be issued prohibiting Mandalay Shores from collecting any monies against Mr. Greenfield for his Short Term Rental.

City and County of San Francisco et alterius v. Homeaway.com, Inc.

    Originally filed on Thursday, March 15, 2018, and published on Wednesday March 28, 2018, Justices Ruvolo, Reardon, and Streeter upheld San Francisco County Superior Court Judge Kahn’s order commanding Homeaway.com to comply with an administrative subpoena. The subpoena itself was originally issued in April 2016, and requested all information that Homeaway had regarding the identity of hosts who offered accommodations through Homeaway from 2012 through the date of the subpoena.  Through a series of hearings and arguments San Francisco and Homeaway eventually settled into the positions that San Francisco should be entitled to the information under the San Francisco Business and Tax Regulations Code, which is a municipal tax regulatory scheme, and Homeaway arguing that the code provisions are preempted and protected by the Federal Stored Communications Act.

    Homeaway argued that the Stored Communications Act was implicated because the majority of its customers transactions occurred either through discussion forums without the use of Homeaway as a facilitator, or else necessarily required that communications stored with Homeaway be produced.  San Francisco argued, and the courts agreed, that whether or not the contend of the communications ultimately included the information sought by San Francisco, i.e. the names and identifying information for people acting as hosts, they were not covered by the Stored Communications Act because (1) Homeaway separately collected the same information for business purposes, (2) the information may be obtained and transmitted to San Francisco without also providing the communications themselves, and (3) the administrative subpoena satisfied with the Stored Communications Act’s procedural requirements by being authorized by state law.  Further, Homeaway’s constitutional arguments were summarily dismissed, as Homeaway failed to establish a basis for the Court to conclude that Homeaway’s customer’s rights under the First or Fourth Amendments would be infringed by San Francisco’s duly authorized administrative subpoena.  Accordingly, the trial court’s order compelling Homeaway to comply with the administrative subpoena was upheld, and San Francisco will be moving forward with its tax collection activities against individuals renting their homes out with Homeaway, but without being properly licensed or paying taxes.

Supreme Court – Roundup

This week the Supreme Court published 1 case:

  • The People v. Mario Martinez; in another case involving interaction of Proposition 47 with current law, the Supreme Court held that the court of appeals incorrectly held that the re-sentencing provisions of Proposition 47 necessarily do not apply to the transportation of drugs, as re-sentencing eligibility is not contingent on having been convicted under an enumerated statute. The Court nevertheless upheld the lower court’s denial of re-sentencing on the reasoning that Mr. Martinez would still have been guilty of a felony even if the provisions of Proposition 47 were in effect when the 2007 crime was committed because the Proposition only dealt with crimes of possession – here, Mr. Martinez’s crime was one of transportation, not possession.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court announced that 4 cases were accepted during the week of March 26, 2018, specifically:

  • Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn.; where the court will look to answer whether public employee’s vested rights, protected by the contracts clause of the state and federal constitutions, were impermissibly reduced by the amendments to the County Employees Retirement Law by the 2013 Public Employees’ Pension Reform Act.
  • Kim v. Reins Internat. California, Inc.; which asks whether a former employee counts as an ‘aggrieved employee’ under the Private Attorneys General Act by dismissing his or her individual claims against the employer?
  • Stewart v. San Luis Ambulance, Inc.; where the Ninth Circuit has certified a several questions regarding the rights of ambulance attendants working twenty-four hour shifts under California Labor Laws.
  • People v. Padilla; will once again look at the rights of juvenile offenders when sentenced to life without the possibility of parole.


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