Week in Review (June 11, 2018)

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Week of:                      June 04, 2018
Publication Date:       June 11, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • Mateel Environmental Justice Foundation v. Office of Environmental Health Hazard Assessment et alterius [With Interveners] California Chamber of Commerce et alterius; in a case involving whether the Office of Environmental Health Hazard Assessment was using the wrong calculation for the levels of lead in drinking water – adopting a standard based on the “maximum allowable dose level” as a reproductive toxicant rather than a standard based on “no observable effect level” – the court of appeals affirmed the trial court’s denial of Mateel’s motion for judgment on the pleadings and a writ of mandate against the Office.  The court held that the Office did not abuse its discretion in setting the lead levels and that the Office’s adoption was based on the best scientific evidence available and authoritative opinions of national scientific bodies.
  • In re D.B., a Person Coming Under the Juvenile Court Law [OR] The People v. D.B.; the court of appeals struck a probation condition requiring D.B. to submit to any searches of his electronic devices as unconstitutionally overbroad due to the complete lack of any evidence that electronic devices were related to D.B.’s crime of bringing a folding knife to school and subsequent probation violation of smoking marijuana. The court additionally clarified that the trial court’s order related to legal fees did not require D.B.’s parents to reimburse the County.
  • Ryan Smythe v. Uber Technologies, Inc.; the court of appeals affirmed the trial court’s denial of Uber’s motion to compel arbitration of Mr. Smythe’s unfair competition claims against Uber. In making his argument, Mr. Smythe alleged that, while he worked for both Uber and a competing company Lyft, Uber would encourage its drivers to send Lyft drivers on ‘wild goose chases’ to pick up passengers that did not exist.  Uber moved to compel arbitration under Mr. Smythe’s contract with Uber, but both the trial court and the court of appeals held that because Mr. Smythe was filing in his capacity as a Lyft driver, the claims did not arise from his contract with Uber, and therefore he could not be compelled to arbitrate his claims.

From the Second Appellate District –

  • In re Ronald E. Jenson [on Habeus Corpus]; Mr. Jenson was 19 years old when he was convicted on first degree felony murder in 1979, he subsequently committed three in-prison offenses – two in 1980 for prison escape and possession of a weapon, and one in 1989 for assault with a deadly weapon on a peace officer – but has not committed any further crimes since 1989. Now 58 years old, Mr. Jenson was recommended for parole, but was held over for an additional term of years for the crimes committed in prison.  Upon filing the instant habeus corpus writ seeking release, the court of appeals granted the petition in a 2-1 decision on statutory interpretation grounds, holding that the youthful offender laws superseded consecutive term sentencing laws for in-prison offenses, while Justice Egerton dissented, arguing that the two statutory scheme could be reconciled, and that the majority’s opinion would give young inmates “a free pass” to commit crimes in jail.  Ultimately, the court ordered the release of Mr. Jenson.

From the Third Appellate District –

  • James Gund et alterius v. County of Trinity et alterius; the court of appeals affirmed judgment in favor of the County when Sherriff’s deputy cajoled James and Norma Gund into responding to a 911 call that one of their neighbors had made on the false statements that it was likely problems due to inclement weather when, in fact, they happened upon a double-murder in progress. The Gunds were attacked by the murderer and suffered significant physical injuries.  Upon filing suit against the County and other entities, the trial court granted judgment on the basis of Labor Code §3366, which provides that all persons engaged in assisting any peace officer in their duties is deemed an employee and may only recover for any injuries through worker’s compensation.  The courts reasoned that regardless of whether the deputy misrepresented the situation to the Gunds, upon agreeing to investigate the 911 call, they were engaged in the type of activity contemplated by Section 3366, and could not proceed in tort.
  • In re the Marriage of Phillip and Rachelle Spector [OR] Phillip Spector v. Rachelle Spector; when a court reconsidered an order for spousal support sua sponte, resulting in a downward modification for Rachelle, the court of appeals affirmed the modification and the trial court’s sua sponte motion, finding that courts have inherent authority to reconsider prior orders sua sponte pursuant to Le Francois v. Goel (2005) 35 Cal.4th 1094, which held that “while legislation may limit what matters are brought by parties before the court, it may NOT limit a court’s power to reconsider its rulings on its own.”

From the Fourth Appellate District –

  • Von Becelaere Ventures, LLC v. James Zenovic; where the court of appeals affirmed the trial court’s order denying a motion to compel arbitration on a mechanics lien based on Mr. Zenovic’s prior action in Orange County to foreclose the same lien without complying with the procedural requirements in Code of Civil Procedure Section 1281.5, which requires a mechanics lien foreclosure action to be filed as stayed pending arbitration, which Mr. Zenovic did not do.
  • Adrian Camacho v. Target Corporation; in a matter of the interpretation of a general release agreement in a prior settlement between Target and Mr. Camacho, the court of appeals held that the release, by its express terms, only applied to those claims within the ambit of workers’ compensation laws, and did not include Mr. Camacho’s causes of action for discrimination, harassment, failure to prevent the same, constructive termination, intentional infliction of emotional distress, and negligence.
  • The People v. Jose Epifanio Garcia; after being convicted to a term of nine years on the charge of attempted voluntary manslaughter with a semiautomatic firearm, the court of appeals struck the appellant’s brief with 20 days leave to refile. The court considered the appellant’s apparent attempt to merge the procedures of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 in filing a “laundry list of nine ‘claims’… [where] [c]ounsel gives us scant assistance by her inclusion of unorganized, voluminous string citations” as being a misuse of both procedures.

No Cases from the Fifth and Sixth Appellate Districts

Supreme Court – Roundup

This Week, the Supreme Court published 2 cases, including:

  • The People v. Jorge Gonzalez et alterius; in a 5-2 decision on a robbery and felony-murder case involving whether the trial court erred in not instructing the Jury regarding lesser-included offenses, the Supreme Court held that the failure to instruct was harmless error in this case because the jury ultimately found additional special circumstances involving the robbery true that rendered Mr. Gonzalez’s argument that the result would have been different but for the error not sustainable. In a dissenting opinion authored by Justice Liu and joined by Justice Krueger, the dissenters argued that there were numerous evidentiary issues with the main witnesses for the prosecution that could have justified the jury deciding on a lesser conviction, but that the failure to present such an option may have ultimately resulted in an ‘all or nothing choice’ that is impermissible under the circumstances and should be reversed when the result here is life in prison without the possibility of parole – the most severe sentence short of death.
  • Liberty Surplus Insurance Corporation et alterius v. Ledesma & Meyer Construction Company, Inc., et alterius; In a 6-1 opinion with a concurrence, the Supreme Court considered a question certified from the Ninth Circuit involving the application of California Insurance Law in the case of whether an insurer is required to defend and indemnify its insured on a negligent hiring, retention, and training cause of action when one of the insured’s employees sexually assaulted a 13 year old Doe plaintiff while working on a project for the insured. The Supreme Court answered the question posed by stating that there is a distinction between acts that are not covered – here the acts of sexual assault – and the acts for which coverage may attach – in the negligent supervision of the person engaging in the acts.  Here, the court ultimately decided that Mr. Hecht’s molestation of Doe may be deemed an unexpected consequence of L&M’s independently tortuous acts of negligence, thus making coverage preferred in these situations in order to prevent insurers from disclaiming coverage any time an employee’s conduct is framed as deliberate even though California law recognizes liability is possible in such cases.  In the concurring opinion, Justice Liu made efforts to clarify the jurisprudence of the term ‘accident’ and the caselaw relied upon by the Court, but otherwise joined the opinion of the majority.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that no cases were accepted this week.

Week in Review (June 04, 2018)

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Week of:                      May 29, 2018
Publication Date:       June 04, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • In re Daniela G., a Person Coming Under the Juvenile Court Law [OR] San Francisco Human Services Agency v. W.G.; W.G. appealed the determination of the trial court in finding dependency jurisdiction over Daniela G., where the court awarded sole custody to Daniela’s mother. G. sought to reverse this decision the basis of the juvenile court’s refusal to require Daniela and a 13-year old stepdaughter to testify at the combined jurisdictional and dispositional hearing.  The court of appeals, however, affirmed the result, stating that W.G.’s due process rights were not violated because the court correctly determined that the possible benefit of the children’s testimony would not warrant the psychological injury it would cause to the children in being examined and cross examined on the issue of W.G.’s molestation of his 13-year old stepdaughter and ‘grooming’ his 8-year old daughter for future sexual exploitation pursuant to the case In re Jennifer J. (1992) 8 Cal.App.4th 1080.
  • The People v. Shawn Shields; the court of appeals partially affirmed and partially reversed Mr. Shields’ conviction for attempted pimping, pandering, and human trafficking of a minor when Mr. Shields accepted a request to become facebook friends with a fictional 17-year-old prostitute created by a Solano County detective. While the court of appeals upheld the convictions for attempted pimping and pandering charges, it agreed with Mr. Shields that the human trafficking of a minor charge required that the individual actually be a minor, which was not the case here, and that he should have been charged with ‘attempted’ human trafficking.
  • The People v. Franklin Lee; where after pleading no contest to charges related to the sexual exploitation of a boy under 14 years old and accepting a term of 14 years in prison, Mr. Lee challenged the trial court’s award of $750,000 in non-economic damages to his victim.  The court of appeals affirmed the award, holding that it was authorized under the existing statutes.
  • The People v. Joseph Veamatahau; in a partially published case, the court of appeals held that an expert’s testimony that he relied on a database to confirm the contents of pills found on Mr. Veamatahau’s person was not case-specific hearsay under the law, and that the testimony was admissible.
  • Joseph Tierney et alterius v. Nasir Javaid et alterius; in a dispute over the sale of real estate, the court of appeals partially affirmed and partial reversed the trial court’s judgment in favor of the defendants. In the published portion of the case the appeals court affirmed the decision holding that Mr. Tierney failed to perform on his contract obligations for the purchase of the property – as, although he spent eight years pursuing a permit to build a condominium development at the site of the real property, he failed to tender the agreed-upon payment for the property and judgment was affirmed on that basis.
  • Ricardo Ian Summers et alterius v. The Superior Court of San Francisco County [Real Party in Interest] Wan Fen Tan; the court of appeals reversed and remanded an order by the trial court for the sale of a piece of real property. The case originates from a dispute between the parties over what percentage of the property is owned by each person.  When the trial court ordered the property sold, with the interests determined at a later date, the plaintiffs appealed, and the court of appeals agreed that the ownership interests should be determined prior to the sale of the property.

From the Second Appellate District –

  • Harley Shine v. Williams-Sonoma, Inc. et alterius; where the court of appeals affirmed the trial court sustaining Williams-Sonoma’s demurrer to Mr. Shrine’s putative employment class action litigation on the grounds that the litigation was barred by res judicata. Namely, that Mr. Shine had participated in a prior class settlement on the same claims that barred him from bringing the instant litigation, even though the specific claims raised could not have been raised in the class settlement, because he agreed to a general release of claims through the settlement.
  • Placer Foreclosure, Inc. v. Solomon Aflalo; after the foreclosure sale of Mr. Aflalo’s property, Placer Foreclosure and the buyer of the property were sued for wrongful foreclosure. Placer filed an interpleader action and deposited the surplus funds with the Court, and following a demurrer to the interpleader action that the court sustained, the court failed, however, to disburse the funds to Mr. Aflalo.  The court of appeals affirmed the dismissal of the interpleader action without leave to amend, as Placer should have simply distributed the surplus funds to Mr. Aflalo as there is no threat of double vexation, and the court further orders that the surplus funds be distributed to Mr. Aflalo.
  • In re the Marriage of Summer and Robert Turfe [OR] Summer Turfe v. Robert Turfe; the court of appeals affirmed the judgment of the trial court where, after a bifurcated trial, the court held that the marriage between Summer and Robert should not be annulled pursuant to a claim of fraud related to a ‘mahr agreement’ under Islamic law, as the parties had different interpretations of what the agreement was at the time it was entered, with Robert believing that Summer would receive nothing but a Quran, while Summer believing that she would receive substantially more. As Summer did not defraud Robert into entering marriage on that basis, the marriage is not annulled pursuant to such fraud.
  • Fabio Canales et alterius v. Wells Fargo Bank, N.A.; the court of appeals affirmed the trial court’s entry of judgment on a wage and hours case against Well Fargo for their alleged failure to include required information on their wage statements, and failure to provide a concurrent wage statement together with the terminated employees final wages paid in-store. The trial court found that there was no basis for the causes of action, as the purportedly missing information was, in fact, not earned by the employees, and that Wells Fargo complied with the wage statement presentation requirements by mailing the final wage statement to the plaintiffs.
  • John Nist v. Steven Hall; in a case involving the improper lien sale of the contents of a storage unit, the court of appeals affirmed the trial court’s judgment in favor of Mr. Hall, who was the bona fide good faith purchaser of the contents at the lien sale. Further, the action was held to be judicially estopped by Mr. Nist’s prior action against the storage facility on the same facts, which resulted in a $12,000 settlement agreement in Mr. Nist’s favor and dismissal with prejudice.
  • The People v. Job Luna Medina; the court of appeals affirmed the trial court’s denial of Mr. Medina’s petition to reduce his felony conviction for possession of marijuana with intent to sell from 2015. In its analysis, the court described the difference between criminal acts and criminal conspiracies, and that conspiracies, such as Mr. Medina was convicted of, may constitute graver offenses than the acts themselves due to the collaboration of multiple criminals in conspiracy against the People.  The court additionally held that the plain terms of Proposition 64 and other statutes provide that serious crimes involving marijuana may still be pursued and punished by the government, and the movement of large quantities of illicit marijuana qualifies as a serious crime.
  • Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd.; in a dispute involving an aborted international business transaction, Rockefeller attempted to engage in arbitration, in which Changzhou failed to appear, resulting in a $414 million verdict in favor of Rockefeller. Changzhou ultimately appeared 15 months later and moved to set aside the verdict on the grounds that they had never been served pursuant to the Hague Conventions of international service.  The trial court held that service by mail was the privately agreed-upon means of service, and Rockefeller complied with those terms, but the court of appeals held that because the Hague Convention prohibits contracting for service by means that are not permissible by the receiving country, and China does not permit service by international mail, the judgement was void for failure to properly serve Changzhou.
  • Port Medical Wellness, Inc. v. Connecticut General Life Insurance Company, et alterius; in a case dealing with a dispute between two corporate entities related to the Employee Retirement Income Security Act of 1974, which generally preempts state claims, the court of appeals affirmed the entry of judgment in favor of Connecticut General. While the court engaged in preemption analysis, finding some claims preempted and other not preempted, the court ultimately affirmed judgment on the failure of Port Medical to raise triable issues of fact.

From the Third Appellate District –

  • Public Employees’ Retirement System v. Santa Clara Valley Transportation Authority [AND] Amalgamated Transit Union Local 1555; the court of appeals affirmed judgment against the Retirement System in two separate actions brought by California’s Public Employees’ Retirement System, as opposed to the board that administers the system. While the underlying facts of case involved the interpretation of certain benefits, the two actions here were determined on the basis of CalPERS failure to exhaust its administrative remedies prior to bringing the actions to superior court, as the exact same issues brought by CalPERS are presently pending in over 400 administrative appeals.  While CalPERS argued that it is not required to exhaust its administrative remedies, the court of appeals considered that the agency cannot seek a judicial imprimatur for its policy, which would be applied to pending cases, in an effort to thwart the established administrative adjudicative process.
  • Alliance for California Business [AND] Jack Cody v. State Air Resources Board et alterius; in two cases consolidated for appeal, Mr. Cody, a trucker, and the Alliance for California Business sought to challenge California’s requirement that all trucks operating in California be fitted with diesel particulate filters. In its opinion, the court of appeal upheld the trial courts’ determination that the courts lacked jurisdiction to review the regulation under Federal Law.  Specifically, there is a federal statute that provides that any challenges to these types of regulations under the Clean Air Act give original and exclusive jurisdiction to federal courts of appeal, rendering state courts without jurisdiction to consider these types of claims.

From the Fourth Appellate District –

  • Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc.; Airs sued CBL on a breach of contract cause of action and demanded relief “in an amount to be proven at trial”, but in any case “exceeded $25,000.” After Answering and engaging in settlement negotiations, CBL withdrew its answer and Airs obtained a default judgment in the amount of $3,016,965.03 in the year 2011.  CBL then came into court in 2016 seeking to set aside the default judgment by arguing that the default was void for exceeding the $25,000 demanded in Airs complaint.  The trial court denied CBL’s motion, but the court of appeal ordered that the motion should be granted, as the section governing default judgment is strictly construed to require that the complaint provide sufficient notice to non-answering defendants and the entry of judgment in excess of the amount stated was void.
  • Stephen Bushansky v. Patrick Soon-Shiong et alterius; the court affirmed the dismissal of a shareholder derivative action based on a Delaware forum selection clause. While Mr. Bushansky argued that the selection clause was inappropriate due to Delaware’s lack of personal jurisdiction over every necessary party at the time the litigation was filed, the court of appeals reasoned that because the contract was silent as to the time necessary to determine personal jurisdiction was required, the parties intended a reasonable time frame for such jurisdiction, which has since been obtained.
  • Thomas E. Morgan v. The Superior Court of Orange County [Real Party in Interest] Nancy Morgan Shurtleff et alterius; here, the court of appeals denied Mr. Morgan’s petition for a writ of mandate when the trial court had ordered him to produce all communications, including attorney-client communications, between Mr. Morgan in his capacity as the trustee for a trust and a successor trustee. The court held that in the context of a trust, attorney-client privilege rests between the office of the trustee and the attorney, and any successor trustee has the right to review confidential communications to and from the office of trustee.
  • The People v. Richard Brunton; after being convicted on several charges associated with chocking a fellow inmate with a towel with the intent to kill, the court of appeals agreed with Mr. Brunton’s argument that his conviction on both charges of ‘assault by means of force likely to produce great bodily harm’ and ‘assault with a deadly weapon’ were duplicative as being based on the same facts, and remanded to the trial court to strike one of the convictions.
  • Abbott Laboratories et alterius v. The Superior Court of Orange County [Real Party in Interest] The People ex relatione Tony Rackauckas, as District Attorney, et cetera; in a 2-1 decision the court of appeals granted Abbot Laboratories writ seeking to prevent the Orange County District Attorney from seeking to pursue charges against Abbot, Teva Pharmaceuticals, Barr Pharmaceuticals, and Duramed Pharmaceuticals related to a conspiracy to keep generic drugs off of the market. The court of appeals granted the writ based on the Orange County’s lack of authority to seek relief on behalf of the State and the People of California, being limited only to the People of the County of Orange.  In a dissenting opinion, Justice Dato argued that the granting of this particular writ was unnecessary, as the petitioner only sought to strike the words ‘California’ and ‘in California’ from the language of the complaint, and to the extent that the District Attorney can only recover relief on behalf of the People of the County of Orange, the issues of damages and equitable relief can be adequately addressed by the trial court and assessed on a proper record, not at the outset of litigation through the mechanism of a motion to strike.
  • Rosa Jensen v. The Home Depot, Inc. et alterius; after the trial court reasonably sustained a demurrer on a first amended complaint without leave to amend due to the plaintiffs’ failure to cure defects from the original complaint, failure to oppose the demurrer, failure to request oral arguments, and failure to request leave to amend, the court of appeals nevertheless reversed the trial court’s entry of judgment when Ms. Jense, for the first time on appeal, argued that her case should have been severed from the underlying case and she would be able to present valid claims upon filing a new complaint.
  • In re R.W., a Person Coming Under the Juvenile Court Law [OR] The People v. R.W.; the court of appeal affirmed R.W.’s citation for obstructing an officer in the performance of her duties when R.W., after having been arrested on a carjacking case, determined to not have committed the crime, and then placed under supervision by the Police officers until R.W.’s parent arrived, attempted to leave the supervision of the officer, was handcuffed hand cited, and then released into her parent’s custody a short period later. The court of appeals reasoned that even though R.W. was not officially in Police custody as a criminal detainee, minors are always in somebody’s custody, and the State has a responsibility to supervise minor in situations like those presented here, such that R.W.’s citation was lawful.

From the Fifth Appellate District –

  • Gerawan Farming, Inc. v. Agricultural Labor Relations Board [Real Party in Interest] United Farm Workers of America; in a case involving a de-certification election by an incumbent union of farmworkers, the Agricultural Labor Relations Board was determined to have erred in several of its findings of unfair labor practices as well as in the legal standard applied in reaching its remedial conclusions. On this basis, the court granted Gerawan Farming’s petition vacating the Board’s decision to set aside the decertification vote, and remanded the case to the Board for further proceedings based on the 138 page decision.

From the Sixth Appellate District –

  • The People v. Irvin Sacrite; on appeal from an order of two-years probation for crimes related to the possession and use of methamphetamine, Mr. Sacrite argued that the trial court erred in failing to suppress evidence gathered based on a ‘pat search’ that ultimately revealed Mr. Sacrite’s possession of illegal substances. The court of appeals held that the officer conducting the search had “specific and articulable facts” that Mr. Sacrite may have been armed, rendering the pat search legal, and the evidence derived from the search admissible.

Supreme Court – Roundup

This Week, the Supreme Court published 3 cases, including:

  • The People v. Charles Edward Case; where the Supreme Court affirmed the death sentence of Mr. Case when he murdered two people during the commission of a robbery, where he ultimately stole $320. The Court did, however, order that the $10,000 awarded in restitution be reduced by the amount awarded to a direct victim.  In a Dissenting and Concurring opinion by Justices Liu and Chaney, the justices would have found that the police officers deliberately violated Mr. Case’s rights under Miranda v. Arizona (1966) 384 U.S. 436, but that the violation would have been constitutionally harmless due to the fact that regular Police practice would have discovered the same people that were interviewed based on the tainted evidence.
  • The People v. Warren Justin Hardy; following the conviction of the 1998 kidnapping, rape, torture and murder of Ms. Penny Sigler in Long Beach, this automatic death penalty appeal was affirmed by the Supreme Court in a 6-1 decision. Justice Liu dissented on the grounds that the prosecution used peremptory strikes to remove every single black juror from the jury panel of Mr. Hardy, who is black man.  Justice Liu concluded that, more likely than not, Mr. Hardy was convicted by a panel that was not selected free of improper discrimination; the majority, however determined that under current law the reasons described by the prosecution for each strike were genuine.
  • The People v. Richard Penunuri; in another 6-1 opinion, the Supreme Court affirmed the death sentence for Mr. Penunuri for the robbery and murder of three victims, along with other crimes. In the dissenting opinion by Justice Cuéllar, the Justice argued that there was prejudicial error in allowing another defendant’s testimony that Mr. Penunuri committed all of the murders to come in without allowing Mr. Penunuri to cross-examine the accomplice.  The majority had found the error constitutionally harmless because there was sufficient corroboration from other sources.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that no cases were accepted this week.

Additionally, please tune in this week for oral argument that will be occurring before the Supreme Court, and viewable online via the Court’s website, arguments will be heard starting at 2PM on June 5th, and 9AM on June 6th.