Selected Developments
June 2022 Update
The current update includes changes that reflect recent developments in case law, legislation, court rules, and jury instructions. Summarized below are some of the more important developments included in this update since publication of the 2021 update.
California Jurisdiction
In Acres v Marston (2021) 72 CA5th 417, the court ruled that sovereign immunity did not shield tribal officials from personal liability. See §6.52.
In Student A v San Francisco Unified Sch. Dist. (9th Cir 2021) 9 F4th 1079, plaintiffs’ arguments that their Individuals with Disabilities Education Act claims sought “systemic” or “structural” educational reforms were not enough to excuse their failure to exhaust administrative remedies. See §6.54.
An assignee of real property under a reverse mortgage agreement that was aggrieved by its inability to foreclose had standing to challenge the owner’s prior quiet title judgment against a defaulting lender. Paterra v Hansen (2021) 64 CA5th 507. See §6.57A.
In Association for Los Angeles Deputy Sheriffs v Macias (2021) 63 CA5th 1007, a union had associational standing to seek damages on behalf of its members because it proved the damages without objection by means of lay and expert testimony, without calling any of its members to testify. See §6.57A.
Because an association had not shown that its members would otherwise have standing to sue in their own right, it lacked associational standing. LA Alliance for Human Rights v City of Los Angeles (9th Cir 2021) 14 F4th 947. See §6.57A.
In Zuniga v Alexandria Care Ctr. (2021) 67 CA5th 871, a former employee who alleged they had personally suffered at least one Labor Code violation under the Private Attorneys General Act of 2004 was an aggrieved employee with standing to pursue penalties on the state’s behalf. See §6.57A.
In San Diegans for Open Gov’t v Fonseca (2021) 64 CA5th 426, a taxpayer group lacked standing under CCP §526a because it failed to show the organization itself or any member who was a “resident” within the meaning of the statute paid taxes. See §6.57A.
In Moser v Benefytt, Inc. (9th Cir 2021) 8 F4th 872, the defendant did not waive its personal jurisdiction objection to class certification by failing to assert the defense at the Fed R Civ P 12 stage because defendant did not have “available” a Rule 12(b)(2) personal jurisdiction defense to the claims of unnamed putative class members who were not yet parties to the case. See §6.78.
In Argonaut Ins. v St. Francis Med. Ctr. (2021) 17 F4th 1276, the court held that parties can plead a conditional counterclaim and still preserve objections to jurisdiction. Such conditionally pleaded counterclaims, without more, do not trigger mandatory jurisdiction over declaratory claims. See §6.78.
In Yue v Yang (2021) 62 CA5th 539, plaintiff established facts showing intentional targeting of California by defendant when he communicated with plaintiff and posted on a website owned and operated by a California resident, with a California audience, messages with a “California focus.” See §6.86.
In Ford Motor Co. v Montana Eighth Judicial Dist. Court (2021) ___ US ___, 141 S Ct 1017, 1028, the United States Supreme Court held that the state courts of Montana and Minnesota had specific jurisdiction over the defendant auto company when the company advertised, sold, and serviced car models in those states for many years. See §§6.89, 6.95.
In LNS Enters. v Continental Motors (9th Cir, Jan. 12, 2022, No. 20–16897) 2022 US App Lexis 901, plaintiffs failed to make a prima facie case for specific jurisdiction. Although records showed the defendants had some contacts with the forum state, plaintiffs failed to establish that their claims arose out of, or related to, those contacts. See §6.95.
In Swenberg v dmarcian, Inc. (2021) 68 CA5th 280, a nonresident chose to make a company’s Internet presence and its ability to obtain customers from online contacts depend on the services of a California-based company, and there was no unfairness in requiring him to subject himself to the jurisdiction of California courts in litigation involving his relationship with that California company and its employees. See §6.95A.
In Jacqueline B. v Rawls Law Group, P.C. (2021) 68 CA5th 243, a California court did not have specific personal jurisdiction over a Virginia-based law firm that operated a website that could be accessed by California residents, because the website did not target California residents specifically and it was the client who first contacted the law firm. See §6.95A.
Federal Jurisdiction
In Sackett v U.S. EPA (9th Cir 2021) 8 F4th 1075, the agency’s stated intention not to enforce a compliance order did not bind the agency. Because it could change positions under new leadership, the controversy was not moot. See §7.5.
In Magadia v Wal-Mart Assocs. (9th Cir 2021) 999 F3d 668, an employee lacked Article III standing to bring a California Private Attorneys General Act claim on behalf of other employees because he did not suffer injury himself. See §7.9.
In Friends of the Earth v Sanderson Farms, Inc. (9th Cir 2021) 992 F3d 939, advocacy groups alleging misrepresentations in advertising by the defendant were found to lack organizational standing because they failed to show a diversion of their resources to combat the advertising, aside from what they already had been doing. See §7.9.
In Inland Empire Waterkeeper v Corona Clay (9th Cir 2021) 17 F4th 826, a nonprofit organization established injury in fact through its members’ declarations that they lived near a creek, that they used it for recreation, and that pollution from discharged stormwater impacted their present and anticipated enjoyment of the waterway. See §7.9.
In a suit against a credit reporting agency for violations of the Fair Credit Reporting Act, only those plaintiffs whose credit reports were disseminated to third parties suffered a concrete harm and had standing. Transunion LLC v Ramirez (2021) __ US __, 141 S Ct 2190. See §7.9.
In California v Texas (2021) __ US __, 141 S Ct 2104, individual and state plaintiffs challenging the Patient Protection and Affordable Care Act failed to show injury that was fairly traceable to the government’s allegedly unlawful conduct. See §7.9.
Former students of a college who handed out religious literature on the campus and were told to stand in two “free speech” areas sought nominal damages, which satisfied the redressability element necessary for Article III standing. Uzuegbunam v Preczewski (2021) ___ US ___, 141 S Ct 792. See §7.9B.
In Webb v Trader Joe’s Co. (9th Cir 2021) 999 F3d 1196, the Ninth Circuit upheld the dismissal with prejudice of state-law consumer protection claims because they were preempted by the Poultry Products Inspection Act, as plaintiff’s claims would have imposed different labeling requirements. See §7.21.
In Lake v Ohana Military Communities (9th Cir 2021) 14 F4th 993, a Ninth Circuit panel rejected a rule that, regardless of any concurrent state jurisdiction, federal jurisdiction exists when federally owned or controlled land is involved and a substantial federal interest exists. See §7.21.
In Plaskett v Wormuth (9th Cir 2021) 18 F4th 1072, the Ninth Circuit held that it was an error to dismiss an Administrative Procedure Act claim for lack of subject matter jurisdiction because any deficiencies as to the claim went to the merits of the action rather than subject matter jurisdiction. See §7.32.
In Nestle USA v Doe (2021) __ US __, 141 S Ct 1931, the U.S. Supreme Court held that federal courts should refrain from creating a private right of action whenever there is even a single sound reason to defer to Congress. See §7.23.
In Arroyo v Rosas (9th Cir 2021) 19 F4th 1202, the Ninth Circuit held that California had created a “highly unusual systemic impact” on the types of cases that would have a significant impact on federal-state comity, which created exceptional circumstances to potentially decline supplemental jurisdiction. See §7.36.
The statute of limitations tolling period lasts through appeal to the courts of appeal afforded as a matter of statutory right. Sales v City of Tunstin (2021) 65 CA5th 265. See §7.36.
In Whole Woman’s Health v Jackson (2021) ___ US ___, 142 S Ct 522, the Supreme Court ruled that Eleventh Amendment sovereign immunity precluded abortion providers from bringing a pre-enforcement challenge against a state court judge and a state court clerk, as the Ex parte Young (1908) 209 US 123, 28 S Ct 441, exception does not normally permit federal courts to issue injunctions against state court judges or clerks. See §7.56.
In WhatsApp v NSO Group Technols. (9th Cir 2021) 17 F4th 930, the fact that a private Israeli corporation provided technology to sovereigns for law enforcement purposes did not render it an agency or instrumentality of a foreign state and did not give it immunity under the Foreign Sovereign Immunities Act of 1976. See §7.65.
In Maine Community Health Options v Albertsons Cos. (9th Cir 2021) 993 F3d 720, a good faith allegation that the benefit to the plaintiff of obtaining the subpoenaed information in the controversy exceeded $75,000 was sufficient. See §7.75.
Noticed Motions
In Forest Lawn Mem. Park Ass’n v Superior Court (2021) 70 CA5th 1, a declaration was inadmissible for lack of foundation when the declarant was not employed in the capacity stated and an attorney called declarant 15–20 times per day to “encourage” them to sign. See §12.68.
In Kumar v Ramsey (2021) 71 CA5th 1110, a plaintiff’s statute of limitations argument was not wholly without merit and did not warrant sanctions. See §12.142.
In Broadcast Music Inc. v Structured Asset Sales, LLC (2022) 75 CA5th 596, a sanctions motion was improperly filed and would have been unauthorized, as the merits of the objectionable document were resolved on the last day of the safe harbor period. See §12.146.
Service of Summons
In Crane v Dolihite (2021) 70 CA5th 772, a prisoner’s failed attempt to serve his civil action and subsequent dismissal for lack of service caused a miscarriage of justice because sheriffs’ offices have a statutory duty to serve process in civil actions, and litigation coordinators at state prisons should accept service on behalf of defendant inmates. See §17.40.
In Kremerman v White (2021) 71 CA5th 358, substitute service was rejected when one attempt at service was made to an address plaintiff knew defendant had vacated, another attempt was made to serve process for a different cause of action, and service via a commercial mail receiving agency failed to meet the 5-day mailing deadline. See §17.46.
In Rios v Singh (2021) 65 CA5th 871, service by publication was appropriate, as the plaintiff made several attempts to serve defendants at their usual place of business and also by certified mail to a post office box address. See §17.51.
Motion to Quash
An unlawful detainer defendant may not use a motion to quash to test the merits of the complaint. Stancil v Superior Court (2021) 11 C5th 381, 455. See §19.10.
Forum Non Conveniens
In Aghaian v Minassian (2021) 64 CA5th 603, an appellate court previously determined that Iran was not a suitable forum for a dispute. That determination was the law of the case and defeated the defendant’s renewed inconvenient forum motion. See §21.7.
Removal to Federal Court
In Aliga Online, Inc. v Discover Bank (CD Cal, Apr. 14, 2021, No. 2:21–cv–01721–FLA (MRWx)) 2021 US Dist Lexis 72241, the court held that the “nerve center” approach is simpler to apply than a more general business activities test, invites less litigation, and better reflects the statutory language and legislative history of 28 USC §1332(c)(1). See §22.24.
A nursing home did not act under a federal officer or agency’s directions when it complied with mandatory federal directives during the COVID-19 pandemic. Its status as a critical infrastructure entity did not establish that it acted under a federal officer or agency, or that it carried out a government duty. Saldana v Glenhaven Healthcare LLC (9th Cir, Feb. 22, 2022, No. 20–56194) 2022 US App Lexis 4631. See §22.35.
In Sharma v HSI Asset Loan Obligation Trust (9th Cir, Jan. 25, 2022, No. 20–16898) 2022 US App Lexis 2136, the Ninth Circuit held that the text of 28 USC §1441(a) specifically limits the ability to remove to the “defendant or the defendants” and contains no language allowing mistakenly omitted parties, wrongly excluded parties, or any other type of nondefendant to remove an action to federal court. See §22.39.
A notice of removal does not need to “prove” subject matter jurisdiction. Academy of Country Music v Continental Cas. Co. (9th Cir 2021) 991 F3d 1059, 1070. See §22.76.
In Dietrich v Boeing Co. (9th Cir 2021) 14 F4th 1089, the Ninth Circuit adopted an “unequivocally clear and certain” standard as to when an amended pleading, motion, order, or other paper must make a ground for removal before the removal clock begins under the second pathway of 28 USC §1446(b). See §22.82.
In BP v Mayor & City Council of Baltimore (2021) ___ US ___, 141 S Ct 1532, the U.S. Supreme Court held that an appellate court may review a district court’s remand order in cases asserting removal pursuant to 28 USC §§1442 and 1443. See §22.94.
Demurrers
It is an error to grant a demurrer for failure to state a cause of action because the plaintiff’s attorney incorrectly labeled the cause of action. Munoz v PL Hotel Group (2022) 73 CA5th 543 (sustaining demurrer to fraud cause of action was error because complaint sufficiently alleged facts constituting fraud in execution by describing surreptitious substitution of lease agreements). See §23.27.
In Shalabi v City of Fontana (2021) 11 C5th 842, a minor’s 18th birthday was excluded in calculating when the statute of limitations began to run. See §23.28.
In Save Lafayette Trees v East Bay Reg’l Park Dist. (2021) 66 CA5th 21, the named defendant’s agreement to toll the statute of limitations was invalid and a demurrer upheld because a necessary and indispensable party was not joined to the lawsuit. See §23.33.
Anti-SLAPP Motions
In Morris Cerullo World Evangelism v Newport Harbor Offices & Marina (2021) 67 CA5th 1149, the court held that an anti-SLAPP motion may not be directed at an affirmative defense. See §24A.5.
In Woodhill Ventures v Yang (2021) 68 CA5th 624, 632, the public interest exception did not apply to a professional cake that had decorations resembling prescription pills when statements did not discuss the danger of children confusing medication for candy. See §24A.13.
In Exline v Gillmor (2021) 67 CA5th 129, efforts to complete and file Form 700s constituted political work, thereby rendering the public interest exemption inapplicable. See §24A.13.
In Xu v Huang (2021) 73 CA5th 802, defamatory statements that the defendant was dishonest and unethical and had falsified insurance documents fell within the anti-SLAPP commercial speech exemption because they were made for the purpose of increasing defendant’s sales. Since these statements were made in a private setting to solicit business, the speech was not in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue. See §§24A.14 and 24A.23.
In Muddy Waters, LLC v Superior Court (2021) 62 CA5th 905, the defendant was a business dealing with financial analysis, and was not a business competitor of plaintiff, who was a business dealing with importing, exporting, and selling aluminum goods. Therefore, the commercial speech exception to the anti-SLAPP statute did not apply. See §24A.14.
In Edward v Ellis (2021) 72 CA5th 780, the distribution of campaign mailers and other political literature about candidates’ qualifications was undoubtedly protected activity under the anti-SLAPP statute. See §24A.18.
In Falcon Brands, Inc. v Mousavi & Lee, LLP (2022) 74 CA5th 506, email settlement demands from opposing counsel escalated to the level of extortion, were illegal as a matter of law, and were not protected by the anti-SLAPP statute. See §24A.19A.
In Towner v County of Ventura (2021) 63 CA5th 761, a county defendant’s willful disclosure of confidential personnel records in a writ proceeding, without first complying with mandatory procedures for disclosure, was illegal as a matter of law, and therefore not a protected activity under the anti-SLAPP statute. See §24A.19A.
The California Supreme Court held that medical peer review proceedings fall within the ambit of CCP §425.16(e)(2) and further clarified how to evaluate mixed causes of action in Bonni v St. Joseph Health Sys. (2021) 11 C5th 995. See §§24A.21 and 24A.23A.
Attorneys’ advice to a client not to file a complaint drafted by another attorney, including the client’s rights and obligations under a fee agreement, was protected prelitigation activity. Pech v Doniger (2022) 75 CA5th 443. See §24A.21.
The act of obtaining and recording an abstract of judgment as a real property lien is protected activity under CCP §425.16(e)(2), but the litigation privilege only shields liability for tort damages based on litigation-related communications, not causes of action for quiet title and cancellation of an instrument. Weeden v Hoffman (2021) 70 CA5th 269. See §24A.21.
The existence of an official proceeding does not necessarily transform any claim related to that proceeding into an action within the ambit of CCP §425.16(e)(2). Such an interpretation ignores the plain language of the statute, which requires a claim be based on a written or oral statement made in connection with the proceeding. Verceles v Los Angeles Unified Sch. Dist. (2021) 63 CA5th 776, 787. See §24A.21.
In People ex rel Allstate Ins. Co. v Rubin (2021) 66 CA5th 493, a medical provider’s reports and billing records made in the regular course of business were not litigation activities protected under the anti-SLAPP statute because the litigation was merely a possibility when these documents were created. See §24A.21.
The creation of a television show is an exercise in constitutionally protected expression. Steps taken to advance such constitutionally protected expression are properly considered conduct in furtherance of the exercise of the right of free speech. Musero v Creative Artists Agency, LLC (2021) 72 CA5th 802. See §24A.23.
A city released records of a disciplinary action that terminated a police officer’s employment after media requests pursuant to the California Public Records Act. This is speech protected by the anti-SLAPP statute. Collondrez v City of Rio Vista (2021) 61 CA5th 1039. See §24A.23.
While defendants’ acts of filming, producing, and airing portions of a fashion show were protected activity of public interest, the plaintiff established a probability of prevailing because she provided evidence that she reasonably expected the dressing room would be private, did not know of any filming there and did not consent, and sustained serious emotional distress. Belen v Ryan Seacrest Prods. (2021) 65 CA5th 1145. See §§24A.23 and 24A.31.
In Herring Networks v Maddow (9th Cir 2021) 8 F4th 1148, a broadcaster’s statements that a news network employee was paid to create Russian propaganda were rhetorical hyperbole, not defamation. Thus, plaintiff could not prevail on the merits. See §24A.23G.
In Kim v R Consulting & Sales, Inc. (2021) 67 CA5th 263, a motion for an order to show cause regarding contempt did not form a basis for a malicious prosecution action and prevented the party from demonstrating a probability of success on the merits See §24A.23J.
In Dunning v Johnson (2021) 64 CA5th 156, plaintiffs made an adequate showing that defendants pursued an action without probable cause and with malice and, as such, plaintiffs’ malicious prosecution claim should have survived an anti-SLAPP motion to strike. See §24A.23J.
A world-record-holding video game player’s record high scores were removed after a competition organizer’s leaderboard stated that the player had cheated. While the parties agreed this arose from a protected activity, the anti-SLAPP motion was denied because the player made a prima facie showing of falsity of the claim with evidence that the tape of the player cheating was possibly altered and not reliable. Mitchell v Twin Galaxies (2021) 70 CA5th 207. See §24A.31.
In Brighton Collectibles LLC v Hockey (2021) 65 CA5th 99, a cross-complaint submitted prima facie evidence to support a fraud claim against cross-defendant, demonstrating requisite minimal merit for the claim to survive an anti-SLAPP motion. See §24A.31.
A second anti-SLAPP motion under CCP §425.16, which relied on the law of the case, was a proper procedural vehicle to challenge an amended pleading that renewed breach of contract allegations previously stricken in the first anti-SLAPP ruling. Finato v Keith A. Fink & Assocs. (2021) 68 CA5th 136. See §24A.33.
An anti-SLAPP movant need not file an attorney fee request along with its original motion, but if it chooses to defer such a request, there is no guarantee it will receive a ruling on fee entitlement in advance of the filing of a later fees motion or request for fees by cost memorandum. Catlin Ins. v Dank Meredith Law Firm (2022) 73 CA5th 764. See §24A.88.
Judgment on the Pleadings
Courts have the broadest of discretion to permit a late filing of a motion for judgment on the pleadings. Korchemny v Piterman (2021) 68 CA5th 1032. See §27.8.
Nothing in the statutory language, or case law interpreting the statute, constrains the ability of a defendant to move for nonsuit when a plaintiff concedes facts that constitute an affirmative defense. Carachure v Scott (2021) 70 CA5th 16. See §27.9.
In Shuler v City of Los Angeles (2021) 62 CA5th 793, judgment on the pleadings was affirmed when plaintiff’s state suit was barred because their federal suit definitively settled the dispute. See §27.10.
Intervention
In South Coast Air Quality Mgmt. Dist. v City of Los Angeles (2021) 71 CA5th 314, the trial court reasonably concluded that intervention by a harbor workers’ union would be largely cumulative and would unduly complicate an already complicated case in an environmental dispute concerning the Port of Los Angeles. See §31.4.
In Gilman v Dalby (2021) 61 CA5th 923, the court ruled that a judgment creditor may obtain a lien on a judgment debtor’s right to money or property under any judgment, order, or decree pursuant to CCP §708.410. See §31.11.
In Westen Watersheds Project v Haaland (9th Cir, Jan. 5, 2022, No. 20–35780) 2022 US App Lexis 240, a motion to intervene was timely under Fed R Civ P 24(a). The district court erred by measuring length of delay from events pre-dating when intervenor was reasonably on notice its interests were not adequately represented. See §31.37.
In Crestwood Behavioral Health, Inc. v Lacy (2021) 70 CA5th 560, the Labor Commissioner’s time to file an application to intervene began when the Department was served with a petition seeking to stay all Department proceedings, not merely when the Commissioner was informed about the petition. See §31.37.
Injunctions and Other Provisional Remedies
In Dr. V. Prods., Inc. v Rey (2021) 68 CA5th 793, the court held that under CC §3426.4, there is no independent right to an interlocutory appeal. See §32.28.
A trial court is not required to grant a respondent’s request for a continuance under CCP §527.8(o) (injunction by employer to prevent workplace threats or violence) once it has responded to a petition for a restraining order. Goals for Autism v Rosas (2021) 65 CA5th 1041. See §32.28.
If a challenged injunction calls for the performance of an affirmative act, a stay must be granted pending appeal. Daly v San Bernardino County Bd. of Supervisors (Rowe) (2021) 11 C5th 1030. See §32.132.
In Cerletti v Newsom (2021) 71 CA5th 760, a petition for writ was denied because a ruling on a temporary restraining order is appealable and plaintiffs made inadequate showing to justify relief by mandate. See §32.134.
In Austin v City of Burbank (2021) 67 CA5th 654, the court of appeal declined to exercise discretion to consider an appeal as an extraordinary writ when plaintiff filed appeal 1 day after the deadline to file a writ petition, and had not shown any extraordinary circumstances justifying the court treating the appeal as an extraordinary writ. See §32.134.
Summary Judgment
In Yanez v Vasquez (2021) 65 CA5th Supp 1, plaintiff waived inadequate notice argument in an unlawful detainer summary judgment ruling because they did not claim to have suffered prejudice and did not request a continuance. See §36.27.
In Braganza v Albertson’s LLC (2021) 67 CA5th 144, the denial of a request for a continuance on summary judgment was affirmed because plaintiff’s counsel made no attempt to show why inspections and testing by plaintiff’s expert, and the expert’s declaration in opposition to defendant’s motion for summary judgment, could not have been completed before plaintiff’s opposition to defendant’s motion was due. See §36.51.
In Michaels v Greenberg Traurig, LLP (2021) 62 CA5th 512, the court held that in a summary adjudication motion, the trial court does not weigh the evidence. Instead, the court is required to view the evidence in the light most favorable to plaintiffs as the parties opposing summary judgment, strictly scrutinizing defendants’ evidence in order to resolve any evidentiary doubts or ambiguities in plaintiffs’ favor. See §36.176.
Default
In Rios v Singh (2021) 65 CA5th 871, a motion directed at a service by publication order was not an answer or response that prevented entry of the defendant’s default. See §38.21.
Because the award of interest on an additional $100,000 earn-out amount was contrary to law, it rendered the default judgment void on its face as to that additional interest. Grados v Shiau (2021) 63 CA5th 1042, 1056. See §§38.104 and 38.105.
Dismissal
In Ables v A. Ghazale Bros. (2022) 74 CA5th 823, the 6-month grace period under CCP §583.350 did not apply in addition to an emergency rule enacted during the COVID-19 pandemic that provided a 6-month extension of time to bring a civil action to trial. See §39.35.
In Nunn v JPMorgan Chase Bank (2021) 64 CA5th 346, the court proposed a trial date outside the limitation period in which a trial date must occur. Both parties agreed to the trial date, thus implicitly agreeing to waive the limitation period. See §39.39.
Civil Code §1717 only applies to actions on a contract, and plaintiff may remain liable for attorney fees if the action included noncontract claims. Hom v Petrou (2021) 67 CA5th 459. See §39.98.
Jury Trial Demands
In TriCoast Builders, Inc. v Fonnegra (2022) 74 CA5th 239, a party waived its right to a jury trial because it failed to pay fees. The trial court did not abuse its discretion in denying a request for relief because the request to pay fees was made on the day of trial and the party failed to demonstrate prejudice from proceeding with a court trial. See §41.13.
Trial Preference and Continuance
Code of Civil Procedure §36, which governs trial preference settings, does not supersede Cal Rules of Ct 3.504, which sets forth the court rules that govern coordinated proceedings. Isaak v Superior Court (2022) 73 CA5th 792. See §43.2.
Consolidation and Severance
In Colebrook v CIT Bank (2021) 64 CA5th 259, res judicata applied even though plaintiff brought new factual and legal issues to court because plaintiff “consistently sought to vindicate the same ‘primary right.’” 64 CA5th at 264. See §43.19.
Res judicata may apply even when the judgment on which it is based is later partially vacated by settlement. Meridian Fin. Servs. v Phan (2021) 67 CA5th 657. See §43.19.
Alternative Dispute Resolution
In Eminence Healthcare, Inc. v Centuri Health Ventures, LLC (2022) 74 CA5th 869, an arbitration agreement carve-out for claims seeking equitable relief was not ambiguous because it expressed the parties’ intent as to the type of “claims” that fell outside the scope of the agreement to arbitrate their disputes. See §45.24.
In Betancourt v Transportation Brokerage Specialists (2021) 62 CA5th 552, the court ruled that the Federal Arbitration Act exemption applied to transportation workers engaged in interstate commerce. See §45.26.
In Romero v Watkins & Shepard Trucking (9th Cir 2021) 9 F4d 1097, a truck driver who did not himself cross state lines but delivered goods that had once crossed state lines fell within FAA §1’s exemption for transportation workers engaged in interstate commerce. See §45.26.
In Ngo v BMW of N. Am. (9th Cir 2022) 23 F4th 942, an auto manufacturer who was not a party to a contract and not expressly named as a third party beneficiary could not invoke an arbitration clause. See §45.27B.
In Chambers v Crown Asset Mgmt. (2021) 71 CA5th 583, the denial of a motion to compel arbitration was upheld when an affidavit from a creditor’s employee lacked personal knowledge that an account agreement with an arbitration clause was actually mailed to the customer. See §45.27B.
In Remedial Construction v AECOM (2021) 65 CA5th 658, a subcontract’s incorporation of a voluminous contract between the contractor and the property owner containing an arbitration agreement was insufficient to bind the subcontractor to arbitration of its claims against the general contractor. See §45.27B.
In Bannister v Marinidence Opco (2021) 64 CA5th 541, an employee contested the validity of an electronic signature on an arbitration agreement. The employer failed to prove by a preponderance of the evidence that the signature was valid. See §45.27B.
In Martinez-Gonzalez v Elkhorn Packing Co. (9th Cir 2021) 17 F4th 875, the doctrine of economic duress did not apply to render an arbitration agreement void because even though the employer asked the employee to sign the agreement after they made the journey from Mexico to California and they were dependent on the employer for housing, this did not constitute a “wrongful act” under California law, and reasonable alternatives were available to the employee. See §45.27C.
An agreement to arbitrate all disputes does not unequivocally waive sovereign immunity from liability for monetary damages. Bird v Oregon Comm’n for the Blind (9th Cir 2022) 22 F4th 809. See §45.27F.
In Walsh v Arizona Logistics, Inc. (9th Cir 2021) 998 F3d 393, 397, the Ninth Circuit held that the Secretary of Labor could bring an enforcement action and obtain monetary relief on behalf of employees even though they had agreed to a private arbitration. See §45.27F.
In Lim v TForce Logistics (9th Cir 2021) 8 F4th 992, an arbitration clause was found both procedurally and substantively unconscionable, and should not be severed if drafted in bad faith because severing such a term and enforcing the arbitration provision would encourage drafters to overreach. See §§45.28A–45.28C.
In Herrera v Doctors Med. Ctr. (2021) 67 CA5th 538, Private Attorneys General Act of 2004 claims alleged in the former employees’ complaint were owned by the state and being pursued by the former employees as the state’s agent or proxy. These claims could not be forced into arbitration based on agreements made by the former employees before they became authorized representatives of the state. See §45.29.
To obtain the arbitrator’s disqualification, a party is required to object at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification and in compliance with the more specific obligation under Cal Rules of Ct, Ethics Standards for Neutral Arbitrators in Contractual Arbitration 10(a)(4) to serve a notice of disqualification within 15 days after becoming aware of the omission or misrepresentation in the arbitrator’s disclosure statement. Goodwin v Comerica Bank, N.A. (2021) 72 CA5th 858. See §45.39.
In Nixon v Amerihome Mortgage (2021) 67 CA5th 934, a refusal to stay arbitration was upheld when the lawsuit did not arise out of the same transaction as another former employee’s action and there was no likelihood of conflicting rulings. See §45.44.
In Grabowski v Kaiser Found. Health Plan (2021) 64 CA5th 67, the arbitration award was vacated under CCP §1286.2(a)(6)(A) because the arbitrator failed to disclose ex parte communications with defense counsel discussing plaintiff’s pro per status. See §45.49.
The absence of an agreement to arbitrate was a reason to deny enforcement on the merits, rather than to dismiss for lack of subject matter jurisdiction, in Al-Qarqani v Chevron Corp. (9th Cir 2021) 8 F4th 1018. See §45.49.
In Alper v Rotella (2021) 63 CA5th 1142, 1152, a party who was aware that the arbitrator was taking opioid pain medication during the hearing could not later seek to disqualify the arbitrator on those grounds. See §45.49.
In Law Fin. Group, LLC v Key (review granted Nov. 10, 2021, S270798; superseded opinion at 67 CA5th 307), the court held that a request to vacate or correct an arbitration award must come within 100 days of service of the award and is not under the purview of CCP §1290.6. See §45.49.
Offers to Allow Judgment Under CCP §998
A CCP §998 offer is invalid without an acceptance provision, even with a handwritten acceptance. Mostafavi Law Group, APC v Larry Rabineau, APC (2021) 61 CA5th 614, discussed in §47.11.
In Finlan v Chase (2021) 68 CA5th 934, the court stated that a “mere reference” to CCP §998 is not enough to constitute an offer. There must be some acceptance instructions provided. See §47.11.
If the defendant wishes to condition settlement on dismissal rather than entry of judgment, it is defendant’s duty to make that clear in the offer. Arriagarazo v BMW of N. Am. (2021) 64 CA5th 742. See §47.12.
In Oakes v Progressive Transp. Servs. (2021) 71 CA5th 486, the court ruled that a party making a CCP §998 offer need not take into account a lien against the judgment when making the offer. See §47.12.
