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California Law Update – August/September 2017

By September 29, 2017April 22nd, 2018Law Updates
    1. (Expert Testimony/Hearsay) In case involving appointment of conservatorship, permitting jury to consider case-specific hearsay testimony of psychiatrist violates “Sanchez,” but reversal not warranted where error is harmless. Koper v. K.W.. (No. A148614, Sonoma County Super. Ct. No. SPR-87836, California Court of Appeals, First Appellate District, Division Five, August 3, 2017)
    2. (Collateral Estoppel) Collateral estoppel bars tenant from asserting fraud claim in action filed against landlord because it was identical to his fraud defense in unlawful detainer action. Ayala v. Dawson. (No. A142830, Solano County Super. Ct. No. FCS040044, California Courts of Appeal, First Appellate District, Division Four, August 4, 2017)
    3. (Workers Compensation Exclusivity) Employee may maintain emotional distress and retaliation claims against state department despite workers’ compensation scheme’s exclusivity provisions. Light v. California Department of Parks and Recreation. (No. D070361, Super. Ct. No. 37-2013-00069437-CU-OE-CTL, California Courts of Appeal, Fourth Appellate District, Division One, August 8, 2017)
    4. (Vicarious Liability) Company cannot be held vicariously liable for telemarketers’ Telephone Consumer Protection Act violations because telemarketers were not its agents, but were independent contractors. Jones v. Royal Administration Services, Inc. (No. 15-17328, D.C. No. 3:14-cv-00199-LRH-WGC, United States Court of Appeals, Ninth Circuit, August 9, 2017)
    5. (Anti-SLAPP) Plaintiff must show that defendant used plaintiff’s identity in order to prevail under a common law right of publicity claim. Cross v. Facebook. (Nos. A148623, A19140, San Mateo County Super. Ct. No. CIV537384, California Courts of Appeal, First Appellate District, Division Two, August 9, 2017)
    6. (Anti-SLAPP) Anti-SLAPP motion properly granted favoring LA USD in action involving protected and unprotected activities where protected conduct was integral to each of case of action. Okorie v. Los Angeles Unified School District. (No. B268733, Los Angeles County Super. Ct. No. BC582670, California Court of Appeals, Second Appellate District, Division One, August 16, 2017)
    7. (Consumer Law) Plaintiff’s claim under the Consumers Legal Remedies Act fails where Plaintiff’s complaint fails to allege that defendant misrepresented its products. Rubenstein v. The Gap, Inc. (No. B272356, Los Angeles County Super. Ct. No. BC555010, California Court of Appeals, Second Appellate District, Division One, August 24, 2017)
    8. (Government Claims Act) Child sex abuse victim’s action against public entity ultimately filed despite ‘delayed discovery rule’ where rule has no effect on government claims presentment deadline. Rubenstein v. Doe No. 1. (No. S234269, Ct.App. 4/1 D066722, Imperial County Super. Ct. No. ECU08107, Supreme Court of California, August 28, 2017)
    9. (Primary Assumption of Risk) Summary judgment properly granted in favor of balloon tour company and pilot, albeit on different ground, absolving them of liability for injuries from crash landing. Grotheer v. Escape Adventures, Inc. (No. E063449, Super. Ct. No. RIC1216581, California Court of Appeals, Fourth Appellate District, Division Two, August 31, 2017)
    10. (MICRA) Patient’s personal injury action against healthcare provider not subject to MICRA’s shorter, on-year limitations period where action did not involve rendering of professional care. Johnson v. Open Door Community Health Center. (No. A143992, Humboldt County Super. Ct. No. DR130620, California Courts of Appeal, First Appellate District, Division Four, September 11, 2017)
    11. (Disability Discrimination) Autistic man with dog who was denied entry to store unsuccessful in challenging adverse ruling, where dog does not qualify as service animal. Miller v. Fortune Commercial Corporation. (No. B271214, Los Angeles County Super. Ct. No. LC098458, California Courts of Appeal, Second Appellate District, Division One, September 12, 2017)
    12. (Court Files) Failure to consider litigant’s previously filed supported documents incorporated by reference in attorney fee motion results in remand for recalculation of award. Roth v. Plikaytis. (No. D070484, Super. Ct. No. 37-2010-0083847-CU-BC-CTL, California Courts of Appeal, Fourth Appellate District, Division One, September 13, 2017)

The above referenced matters have come to our attention during the last two months. Please find below a brief summary of these newly issued opinions.

  1. (Expert Testimony/Hearsay) In case involving appointment of conservatorship, permitting jury to consider case-specific hearsay testimony of psychiatrist violates “Sanchez,” but reversal not warranted where error is harmless. Koper v. K.W.. (No. A148614, Sonoma County Super. Ct. No. SPR-87836, California Court of Appeals, First Appellate District, Division Five, August 3, 2017)

Following a bench trial, the court found the conservatee gravely disabled and appointed a conservator for a one-year term pursuant to the Lanterman-Petris-Short Act (LPS Act). The conservator, a year later, petitioned for reappointment. A psychiatrist who had previously diagnosed the conservatee, testified as to the conservatee’s behavior as to his own observations and those of others. A jury found that the conservatee was gravely disabled due to a mental disorder. The court thereafter granted the conservator’s motion. The conservatee contended the court errored in admitting the psychiatrist’s case-specific hearsay testimony under People v. Sanchez (2016).

The appeals court affirmed. The LPS Act permits the involuntary appointment of a conservator for a person who is “gravely disabled as a result of a mental disorder.” In Sanchez, the California Supreme Court announced a “paradigm shift” concerning an expert’s use of case-specific out of court statements, requiring hearsay statements to be admitted through an applicable exception. Sanchez established a new rule of law that presumably applied retroactively to this case. Here, the conservatee contended that the trial court’s admission of case-specific hearsay testimony violated Sanchez. While this court found some of the psychiatrist’s testimony problematic and inadmissible under Sanchez, not all of the testimony was inadmissible. Further, because the conservatee did not challenge the sufficiency of the evidence to establish “grave disability” and the only evidence to the contrary was his testimony, which the jury could have rejected, any error in admitting the psychiatrist’s testimony was harmless.

  1. (Collateral Estoppel) Collateral estoppel bars tenant from asserting fraud claim in action filed against landlord because it was identical to his fraud defense in unlawful detainer action. Ayala v. Dawson. (No. A142830, Solano County Super. Ct. No. FCS040044, California Courts of Appeal, First Appellate District, Division Four, August 4, 2017)

After living for more than a dozen years in a residential unit he claimed he owned, the plaintiff was evicted by the property owner, in an unlawful detainer action. The plaintiff defended by attempting to quash service of summons on the ground he was not a tenant, but instead held equitable title under an oral installment sale contract for the purchase of the property. The property owner countered that, in fact, plaintiff was a tenant under a written lease, and had breached the lease in various ways, thus justifying his eviction. After an evidentiary hearing on the plaintiff’s motion to quash service, defendant prevailed and ultimately took a default judgment. Plaintiff then vacated the premises. In this case, a separate, concurrent action by plaintiff against the property owner for fraud and various other claims, plaintiff once again pursued the theory that he holds equitable title under an installment sale contract. He sought to argue, as he did in his unlawful detainer action, that the property owner, a real estate broker, deceived him into signing the lease, while misrepresenting that the document was simply the memorialization of a pre-existing oral contract of sale. The court granted summary judgment for the property owner, ruling that, under the doctrine of collateral estoppel, plaintiff was barred from re-litigating his fraud-in-the-inducement theory.

The appeals court affirmed, finding that the trial court correctly found on behalf of the property owner.

  1. (Workers Compensation Exclusivity) Employee may maintain emotional distress and retaliation claims against state department despite workers’ compensation scheme’s exclusivity provisions. Light v. California Department of Parks and Recreation. (No. D070361, Super. Ct. No. 37-2013-00069437-CU-OE-CTL, California Courts of Appeal, Fourth Appellate District, Division One, August 8, 2017)

Plaintiff appealed judgment in favor of her employer and her former supervisors, following orders granting defendant’s motions for summary judgment. Plaintiff contended the trial court erred by summarily adjudicating her claims against the employer for retaliation, disability discrimination, and failure to prevent retaliation and discrimination, all in violation of the Fair Employment and Housing Act (FEHA). She also contended the trial court erred by summarily adjudicating her claims against one of the individual defendants for intentional infliction of emotional distress and assault and summarily adjudicating her claim against another individual defendant for intentional infliction of emotional distress.

As to the employer, the appeals court concluded triable issues of material fact precluded summary adjudication of the plaintiff’s retaliation claim, but not her disability discrimination claim. The plaintiff’s claim against the department for failure to prevent retaliation or discrimination therefore survived based upon the plaintiff’s retaliation claim. As to the individual defendants, the appeals court concluded contrary to the trial court’s ruling, the workers compensation exclusivity did not bar the plaintiff’s claim for intentional infliction of emotional distress under the circumstances. However, as to the merits of that claim, the appeals court concluded that the plaintiff had raised a triable issue of fact as to one of the individual defendants.

This matter was published because this division of the California Court of Appeals differed in its interpretation of the interplay between workers compensation exclusivity and intentional infliction of emotional distress with that of their colleagues in Division 3 of the Court of Appeals.

  1. (Vicarious Liability) Company cannot be held vicariously liable for telemarketers’ Telephone Consumer Protection Act violations because telemarketers were not its agents, but were independent contractors. Jones v. Royal Administration Services, Inc. (No. 15-17328, D.C. No. 3:14-cv-00199-LRH-WGC, United States Court of Appeals, Ninth Circuit, August 9, 2017)

Plaintiff sought to hold defendant vicariously liable for several telephone calls made in violation of the Telephone Consumer Protection Act (TCPA) by telemarketers employed by another defendant company (AAAP). Royal Administration Services, Inc. (“Royal”) was found by the court to only be held vicariously liable for those calls if the telemarketers were acting as its agents, as defined by the Federal common law, when the calls were placed. To determine whether the AAAP telemarketers were Royal’s agents or dependent contractors, the court applied the ten non-exhaustive factors set forth within a Ninth Circuit opinion entitled Schmidt v. Burlington North and Santa Fe Railway Company. After an assessment of these factors, the Ninth Circuit Court found that AAAP’s telemarketers were acting as independent contractors rather than Royal’s agents. Therefore, Royal could not be held vicariously liable for these telephone calls. Accordingly, the district court properly granted summary judgment in Royal’s favor.

  1. (Anti-SLAPP) Plaintiff must show that defendant used plaintiff’s identity in order to prevail under a common law right of publicity claim. Cross v. Facebook. (Nos. A148623, A19140, San Mateo County Super. Ct. No. CIV537384, California Courts of Appeal, First Appellate District, Division Two, August 9, 2017)

Two promoters drove promotional vans around the country to promote a music artist. The promoters were involved in fatal automobile collisions after falling asleep while driving the vans. A public Facebook page, “Families Against” the music artist, was privately created in response to the accidents. The music artist informed Facebook about threats on the page, and asked Facebook to remove the page. After Facebook refused, the artist sued, alleging causes of action including breach of Civil Code section 3344 and violation of the common law right of publicity. Facebook filed an anti-SLAPP motion arguing that the artist’s complaint arose from a right of free speech, and the artist’s complaint was barred by the Communications Decency Act (CDA). The trial court held that the fourth, fifth, and sixth causes of action were not barred by the CDA, but struck the first three causes of action pursuant to the CDA. On appeal, Facebook argued that the artist’s entire complaint should be stricken. The appeal’s court reversed in part. It found that in order to prevail under a common law right of publicity claim, defendant must have used the plaintiff’s identity, and must have used plaintiff’s name or likeness to his or her advantage, among other elements. Under section 3344, a person can be held liable for injuries resulting from their non-consensual use of another person’s name or likeness for the purpose advertising or selling. The artist’s section 3344 and publicity claims required Facebook’s use of the artist’s identity. Here, the artist failed to prove that Facebook used his name or likeness. Thus, the artist’s common law claims failed on that basis and were struck by the court.

  1. (Anti-SLAPP) Anti-SLAPP motion properly granted favoring LA USD in action involving protected and unprotected activities where protected conduct was integral to each of case of action. Okorie v. Los Angeles Unified School District. (No. B268733, Los Angeles County Super. Ct. No. BC582670, California Court of Appeals, Second Appellate District, Division One, August 16, 2017)

Plaintiff sued his employer, a school district, and two of his supervisors alleging, among other things, discrimination, harassment, and retaliation. In response, defendants filed an Anti-SLAPP motion which the trial court granted.

On appeal, plaintiffs advanced two principle arguments, first, they contended that the trial court erred in granting the Anti-SLAPP motion because the complaint contained allegations regarding both protected and unprotected activities of the defendants. Second, they argued that the motion should have been denied because they demonstrated a likelihood of success on certain causes of action. The appeals court disagreed with both arguments and affirmed the trial court’s rulings. The appeals court, like the trial court, determined that the plaintiff’s allegations that the school district conduct regarding the investigation was integral to each cause of action plaintiffs alleged, found that the trial court was correct in its ruling. The underlying facts involved the plaintiff, who was allegedly harassed by the school principal, who caused him to be placed in home leave and later “teacher jail.” The school district filed its anti-SLAPP motion contending that the gravamen of the plaintiff’s complaint was based on protected activity, speech, or communicative conduct made as part of or as a precursor to its internal investigation regarding a molestation allegation against the plaintiff.

  1. (Consumer Law) Plaintiff’s claim under the Consumers Legal Remedies Act fails where Plaintiff’s complaint fails to allege that defendant misrepresented its products. Rubenstein v. The Gap, Inc. (No. B272356, Los Angeles County Super. Ct. No. BC555010, California Court of Appeals, Second Appellate District, Division One, August 24, 2017)

Plaintiff appealed from a judgment entered after the trial court sustained the demurrer of defendant without leave to amend. The trial court found that under California’s Unfair Competition Law (UCL), Business and Professions Code section 17200; False Advertising Law (FAL), Business and Professions Code section 17500; and or the Consumer Legal Remedies Act (CLRA), Civil Code section 1750 because she failed to allege a misrepresentation or an actionable omission on part of the defendant. Instead, the plaintiff alleged only that the defendant deceptively sold lesser quality clothing items at the defendant’s “Factory Stores” items that were never sold at the “traditional” defendant stores. The appeals court affirmed the trial court’s ruling. The appeals court found that the plaintiff’s complaint failed to allege that the defendant made any misrepresentation or advertising regarding the quality or characteristics of its factory store merchandise. Furthermore, defendant had no duty to disclose to its consumers information about the quality of its factory store items, and had no duty to disclose that its factory store items were never sold it its traditional stores. Thus, the allegations in plaintiff’s complaint failed to show a violation of any of the aforementioned California statutes.

  1. (Government Claims Act) Child sex abuse victim’s action against public entity ultimately filed despite ‘delayed discovery rule’ where rule has no effect on government claims presentment deadline. Rubenstein v. Doe No. 1. (No. S234269, Ct.App. 4/1 D066722, Imperial County Super. Ct. No. ECU08107, Supreme Court of California, August 28, 2017)

In 2012, plaintiff filed a claim against defendant, a public entity, when latent memories of her high school coach’s 1993 sexual abuse resurfaced. Defendant denied the claim as untimely. While plaintiff successfully obtained leave to file a claim under Government Code section 946.6, the trial court nevertheless sustained the defendant’s demurrer, ruling that her failure to comply with Code of Civil Procedure section 340.1 (340.1) rendered her claim fatally time-barred. The appeals court reversed. The California Supreme Court reversed the ruling of the appellate court and remanded the matter for further hearing.

The California Supreme Court found that a claim against a public entity must be presented “not later than six months after the accrual of the cause of action” or “within a reasonable time not to exceed a year after the accrual of the cause of action” for a late claim presentment. For purposes of the Government Claims Act, “accrual of a cause of action is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants” pursuant to the Government Claims Act. Section 340.1’s “delayed discovery rule, meanwhile, expands the statute of limitations for child sexual molestation, reviving certain child sex abuse causes of action that had already lapsed. Nevertheless, section 340.1 “does not extend the time for accrual of that cause of action.” Overall, section 340.1 does not cause a plaintiff’s cause of action for certain sexual abuses to re-accrue. Consequently, plaintiff’s claim was untimely.

  1. (Primary Assumption of Risk) Summary judgment properly granted in favor of balloon tour company and pilot, albeit on different ground, absolving them of liability for injuries from crash landing. Grotheer v. Escape Adventures, Inc. (No. E063449, Super. Ct. No. RIC1216581, California Court of Appeals, Fourth Appellate District, Division Two, August 31, 2017)

Plaintiff is a non-English speaking German citizen who took a hot air balloon ride and suffered a fractured leg when the basket carrying her and seven or eight others crashed landed into a fence. The plaintiff sued the balloon tour company as well as others for her injuries. She alleged that the balloon company negligently or recklessly operated the balloon by “(1) failing to property slow it’s decent during landing and (2) failing to give the passengers safe landing instructions before the launch. Plaintiff also alleged that the hot air balloon company was a common carrier, and as such, owed its passengers a heightened duty of care (California Civil Code section 2100).”

The defendants moved for summary judgment arguing that plaintiff could not satisfy the elements of the negligence claim and, even she could, she had waived the right to assert such a claim by signing a liability waiver before the flight. The trial court agreed plaintiff could not establish the element of duty, finding the plaintiff has assumed the risk of her injury under the primary assumption of risk doctrine and, as a result, defendants owed her no duty of care whatsoever. The trial court entered judgment in favor of the defendants and the plaintiff appealed.

The plaintiff contended the trial court erred in concluding her claim was barred by primary assumption of risk and reasserted on appeal that the defendant was a common carrier. The appeals court affirmed the judgment, but on a different ground than relied on by the trial court. The appeals court held (1) a balloon tour company like the defendant is not a common carrier subject to a heightened duty of care; (2) the primary assumption of risk doctrine bars plaintiff’s claim that defendant negligently failed to slow the balloon’s decent to avoid a crash landing; and (3) defendant does have a duty to provide safe landing instructions to its passengers, but the undisputed evidence regarding the crash demonstrates that any failure on the defendant’s part to provide such instructions did not cause the plaintiff’s injury.

  1. (MICRA) Patient’s personal injury action against healthcare provider not subject to MICRA’s shorter, on-year limitations period where action did not involve rendering of professional care. Johnson v. Open Door Community Health Center. (No. A143992, Humboldt County Super. Ct. No. DR130620, California Courts of Appeal, First Appellate District, Division Four, September 11, 2017)

Plaintiff appealed a trial court’s entry of summary judgment for defendant health center contending the trial court’s application of the Medical Injury Compensation Reform Act’s (MICRA) (California Code of Civil Procedure section 340.5) one-year statute of limitations for professional negligence was error. The appeals court reversed. In this case, plaintiff was at one of the defendant’s clinics to review test results with a nurse practitioner. Prior to her consult, and before she entered the treatment room, her vital signs were taken and she was weighed on the scale located against the wall in the hallway outside of the treatment room. After the consult, plaintiff left the treatment room and headed towards the building exist, as her results were satisfactory and no further treatment was needed. On her way out of the treatment room, she tripped on the scale, which she alleges was moved during the consult and was partially obstructing the path from the room to the hall. As a result, plaintiff fell and suffered serious injuries.

At the time of the trial court’s hearing on the motion for summary judgment, the “precise boundary between professional negligence and premises liability [was] currently unsettled.” The trial court concluded that the defendant’s alleged negligence occurred in the rendering of professional services because was plaintiff was injured in the course of obtaining medical treatment, by equipment used to diagnose and treat medical conditions; therefore the one year statute of limitations for professional negligence applied. The appeals court determined that plaintiff was injured after her consultation had ended. Although the scale she tripped on was used, without incident, as part of her treatment, it was the scale’s placement that created the tripping hazard. Thus, applying the recent California Supreme Court decision in Flores v. Presbyterian Intercommunity Hospital holding, the negligence was ordinary not professional negligence and the trial court erred in applying the shorter MICRA statute of limitations.

  1. (Disability Discrimination) Autistic man with dog who was denied entry to store unsuccessful in challenging adverse ruling, where dog does not qualify as service animal. Miller v. Fortune Commercial Corporation. (No. B271214, Los Angeles County Super. Ct. No. LC098458, California Courts of Appeal, Second Appellate District, Division One, September 12, 2017)

Plaintiff sued defendant, the operator of a chain of food markets because they illegally denied him service when he tried to enter two different defendant stores with his service dog. Plaintiff alleged three causes of action: violation of the Unruh Civil Rights Act; violation of the Disabled Persons Act, and intentional infliction of emotional distress. The defendant’s moved for summary judgment arguing principally that the plaintiff’s dog was not a fully trained service animal at the time of the alleged incidents, and that plaintiff did not bring his dog to the markets for the purpose of training her, and that, in any event, neither plaintiff, who suffers from a disability, nor his step-father who accompanied him to the markets, were respectively capable or authorized to train a service dog. The trial court granted defendant’s motions.

On appeal, plaintiffs argued that at the time of the alleged incidents, his dog had received not only obedience training, but also some meaningful training as a service animal. That is, the dog had been trained to respond to certain symptoms of plaintiff’s disability (e.g. the dog could prevent plaintiff from wandering away from home and getting lost), and that, as a result, he was permitted by law to bring the dog into the markets. In addition, plaintiff contended that he was permitted by law to take the dog into defendant’s markets for the purpose of training her further.

The appeals court was not persuaded by plaintiff’s arguments and affirmed the judgement. The appeals court found that the defendant showed that the dog was not a fully trained service dog and that plaintiff failed to provide evidence was so trained. The entitled defendants to judgment as matter of law because the Unruh Act only applied to trained service dogs and not to service dogs in training. Even though the Disability Protection Act extended protections to those using service animals still in the process of being trained, defendants were entitled the judgment as a matter of law on this claim also, because plaintiff failed to show, among other things, that he visited the markets for training periods. Thus, for this and other reasons, summary judgment was proper.

  1. (Court Files) Failure to consider litigant’s previously filed supported documents incorporated by reference in attorney fee motion results in remand for recalculation of award. Roth v. Plikaytis. (No. D070484, Super. Ct. No. 37-2010-0083847-CU-BC-CTL, California Courts of Appeal, Fourth Appellate District, Division One, September 13, 2017)

Defendant appealed from an order awarding her attorney’s fees and a breach of contract action brought by the plaintiff. In the published portion of the opinion, the appeals court agreed with the defendant’s contention that the trial court erred when it declined to consider previously filed documents she incorporated by reference as part of her motion. Defendant incorporated by reference declarations and documents from her first fee motions, and provided courtesy copies and other materials. This was sufficient according to the appeals court to put them before the trial court. Though the trial court felt that defendant’s efforts were inadequate, it could have permitted her to re-file the documents. Simply refusing to review the materials was an abuse of discretion, requiring remand so that the lower court could review the evidence and determine whether the rates charged by the defendant’s attorneys were reasonable.

Should you have any questions concerning these court decisions or desire a copy of any of them, please do not hesitate to contact our office.

Sincerely,

DUMMIT, BUCHHOLZ & TRAPP

SCOTT D. BUCHHOLZ ESQ.