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California Law Update – January 2022

By January 31, 2022September 5th, 2022Law Updates
  1. Consumer Law) Through their websites’ design, website providers must ensure consumers are adequately notified of contractual terms they are agreeing to by making those terms clear and conspicuous. Tina Sellers v. Justanswer LLC. (No. D077868 Super. Ct. No. 37-2020-00005869-CU-BT-CTL California Courts of Appeal Fourth Appellate District Division One Filed December 30, 2021)
  2. (Spectator Safety) A university was required to show there were no reasonable steps it could take to protect spectators’ safety if it could do so without altering the nature of baseball. Monica Mayes v. La Sierra University (E076374 Super. Ct. No. RIC1820750 California Courts of Appeal Fourth Appellate District Division Two Filed January 7, 2022)
  3. (Anti-SLAPP) Defendant’s false statement regarding competitor’s business practices fell squarely within the commercial speech exemption from anti-SLAPP protection. Tiffany Yan Xu v. Haidi Wenwu Huang (No. B311883 Los Angeles County Super. Ct. No. 20PSCV00695 California Court of Appeal Second Appellate District Division One Filed January 11, 2022)
  4. (Offer to Compromise) A trial court should have determined whether a settlement offer was premature and therefore not made in good faith. Eric Alvin Covert v. FCA USA, LLC (No. B303663 Los Angeles County Super. Ct. No. BC629240 California Court of Appeal Second Appellate District Division Seven Filed January 11, 2022)
  5. (Non-disparagement) A mediation agreement’s non-disparagement clause did not prevent a party from bringing a later lawsuit arising from same alleged harassment. Curtis Olson v. Jane Doe (No. S258498 Second Appellate District, Division Eight No. B286105 Los Angeles County Superior Court No. SC126806 Filed January 13, 2022)
  6. (Exhibit Cost Recovery) Cost for demonstratives and photocopies of exhibits prepared for trial, but ultimately not used are not categorically recoverable but are recoverable in the trial court’s discretion. Mickey Segal v. Asics America Corporation (No. S263569 Second Appellate District, Division Four No. B299184 Los Angeles County Superior Court No. BC597769 Filed January 13, 2022)
  7. (Photocopy Charges) Rates charged for pre-litigation photocopies of clients’ medical records did ot violate statutory limits since charging vendor was acting as an agent of the requesting attorney. Spencer S. Busby, APLC v. Bactes Imaging Solutions, LLC (D078204 Super. Ct. No. 37-2014-00030629-CU-MC-CTL California Court of Appeal Fourth Appellate District Division One Filed January 19, 2022)
  8. (Jury Waiver) A party who waived its right to a jury trial by failing to post jury fees failed to demonstrate how it was prejudiced by a court trial. Tricoast Builders, Inc. v. Nathaniel Fonnegra (No. B303300 Los Angeles County Super. Ct. No. PC056615 California Court of Appeal Second Appellate District Division Two Filed January 21, 2022)
  9. (Trip and Fall/MSJ) Despite plaintiff not remembering her fall, causation was triable issue of fact since evidence could lead to a reasonable and probable inference that defendant’s negligence contributed to the injury. Lydia Kaney v. Marilyn Mazza (B302835 Los Angeles County Super. Ct. No. BC619247 California Court of Appeal Second Appellate District Division Two Filed January 19, 2022)
  10. (Open and Obvious Defense) Open and obvious dangerous condition of stairs leading to property’s only toilet was insufficient to relieve duty of care because visitors to the property would necessarily encounter it. Lydia Kaney v. Carol A. Custance (No. B302835 Los Angeles County Super. Ct. No. BC619247 California Court of Appeal Second Appellate District Division Two Filed January 21, 2022)
  11. (Anti-SLAPP) Attorney’s escalating series of threats, in separate emails, transformed legitimate settlement demands into unprotected extortion. Falcon Brands, Inc. v. Mousavi & Lee, LLP (No. G059477 Super. Ct. No. 30-2020-01128818 California Courts of Appeal Fourth Appellate District Division Three Filed January 27, 2022).
  12. (Elder Abuse Act) Nurses’ provision of wound care to deceased did not give rise to the substantial caretaking relationship required to establish neglect under the Elder Abuse Act. Oroville Hospital v. The Superior Court of Butte County (Lynda Ambrose) (No. C090570 Super. Ct. No. 16CV03116 California Court of Appeal Third Appellate District Filed January 26, 2022)

The above referenced court opinions have come to our attention during last month. Please find below a brief summary of these opinions for your consideration.

  1. Consumer Law) Through their websites’ design, website providers must ensure consumers are adequately notified of contractual terms they are agreeing to by making those terms clear and conspicuous. Tina Sellers v. Justanswer LLC. (No. D077868 Super. Ct. No. 37-2020-00005869-CU-BT-CTL California Courts of Appeal Fourth Appellate District Division One Filed December 30, 2021)

Defendant appealed from an order denying its petition to compel arbitration. Plaintiffs used Defendant’s website to submit a single question through to an “expert” for what they believed to be a one-time fee of $5. With this submission, Defendant automatically enrolled them in a costlier monthly membership. After discovering additional charges to their credit cards, Plaintiffs filed a class action lawsuit against the Defendant, alleging it routinely enrolled online consumers like them in automatic renewal membership programs without “clear and conspicuous” disclosures and obtaining their “affirmative consent” as mandated by California’s Automatic Renewal Law, Business & Professions Code Section 17600 et seq.

Seeking to avoid the class action litigation, Defendant filed a petition to compel individual arbitration.
Defendant claimed Plaintiffs agreed to its terms of service, which included a class action waiver and a binding arbitration clause. The trial court found the Plaintiff had not agreed to binding arbitration based upon the inconspicuous language in Defendant’s notice and denied the petition.

In what the appellate court described as a case of first impression under California law, it considered whether and under what circumstances a “sign-in wrap” agreement the manner in which Defendant sought to impose contractual terms on consumers over the internet was valid and enforceable. It found that the type of transaction that Defendant offered was precisely the type of transaction from which the California Legislature intended to protect consumers when it enacted the Automatic Renewal Law. Since the Legislature has specifically addressed the issue of consumers being unwittingly entered into automatically recurring memberships, the appeals court considers the notice requirements the Legislature had imposed upon such transactions when evaluating the sufficiency of the Defendant’s textual notice. It found that the notices on the “Start my trial” screens of Defendant website were not sufficiently conspicuous to bind Plaintiffs, because they were less conspicuous than the statutory notice requirements and they were not sufficiently conspicuous under other criteria courts have considered in determining whether a hyperlinked notice to terms of services is sufficient to put a user on inquiry notice of an arbitration agreement.

  1. (Spectator Safety) A university was required to show there were no reasonable steps it could take to protect spectators’ safety if it could do so without altering the nature of baseball. Monica Mayes v. La Sierra University (E076374 Super. Ct. No. RIC1820750 California Courts of Appeal Fourth Appellate District Division Two Filed January 7, 2022)

Plaintiff was struck in the face by a foul ball while attending an intercollegiate baseball game. Plaintiff was seated in a grassy area along the third-base line, behind the dugout, which extended eight feet above the ground, and there was not protective netting above the dugout. Plaintiff sued defendant university for her injuries alleging negligence. It claimed that the defendant was negligent for failing to install protective netting over the dugouts, provide a sufficient number of screened seats for spectators, warn spectators that the only available screened seats were in the area behind home plate, and also exercise crowd control in order to remove distractions in the areas along the third-base line that diverted spectators’ attention from the playing field.

Defendant moved for summary judgement claiming that the primary assumption of risk doctrine barred plaintiff’s negligence claim. The trial court agreed and granted the motion, observing that the case was “a textbook primary assumption of the risk case.”

The appeals court reversed, it found that the defendant did not meet its burden of showing that the primary assumption of risk doctrine barred plaintiff’s negligence claim. Also, plaintiff showed there were triable issues of material fact concerning whether defendant was negligent for the reasons she alleged in her complaint. It noted that under California’s primary assumption of risk doctrine required defendant to show that there was no reasonable steps it could have taken to minimize the risks that spectators at games would be injured by foul balls. For example, no such steps were reasonable, or no such steps could have been taken without changing the nature of the game or adversely affecting spectators’ enjoyment of the game.

  1. (Anti-SLAPP) Defendant’s false statement regarding competitor’s business practices fell squarely within the commercial speech exemption from anti-SLAPP protection. Tiffany Yan Xu v. Haidi Wenwu Huang (No. B311883 Los Angeles County Super. Ct. No. 20PSCV00695 California Court of Appeal Second Appellate District Division One Filed January 11, 2022)

Plaintiff, a chief executive officer of an insurance company, filed a defamation case against the defendant. In the lawsuit, plaintiff alleged the defendant made false statements to insurance agents, as well as to one client, that the plaintiff’s business practices were dishonest and unethical and that she falsified insurance documents in an effort to disrupt plaintiff’s business relationships. The defendant filed a Code of Civil Procedures Section
425.16 anti-SLAPP statute motion arguing that her statements were protected speech concerning the public interest of providing consumer information about plaintiff’s supposed fraudulent business practices. The plaintiff opposed the motion, arguing that the commercial speech exception, carved out of the anti-SLAPP statute precluded anti-SLAPP protection. The trial court granted the defendant’s motion, and it noted that commercial speech implicating a matter of public interest may nevertheless be protected by the anti-SLAPP statute. Plaintiff appealed from the order.

The appeals court reversed. The court found that defendant’s statements were intended to increase its sales. Thus, all the elements of the commercial speech exemption had been satisfied, and defendant’s statements were not entitled to anti-SLAPP protection.

  1. (Offer to Compromise) A trial court should have determined whether a settlement offer was premature and therefore not made in good faith. Eric Alvin Covert v. FCA USA, LLC (No. B303663 Los Angeles County Super. Ct. No. BC629240 California Court of Appeal Second Appellate District Division Seven Filed January 11, 2022)

This matter involved a statutory offer to compromise pursuant to California Code of Civil Procedure Section 998, which was served approximately 70 days after the complaint and the action was filed. The trial court held that the statutory offer to compromise was valid.

The appeals court reversed and remanded finding that the trial court should have made a determination as to whether or not the statutory offer to compromise was made in good faith, that is whether the offeree had sufficient time to assess whether the offer was a reasonable one, such that the offeree had a fair opportunity to evaluate the offer. Here, the appeals court found the trial court did not determine whether or not the offer was made in good faith, and therefore, remanded to the trial court to determine whether or not the statutory offer to compromise was made in good faith.

  1. (Non-disparagement) A mediation agreement’s non-disparagement clause did not prevent a party from bringing a later lawsuit arising from same alleged harassment. Curtis Olson v. Jane Doe (No. S258498 Second Appellate District, Division Eight No. B286105 Los Angeles County Superior Court No. SC126806 Filed January 13, 2022)

Plaintiff and defendant were involved in a temporary restraining order proceeding involving harassment. The parties went to a court ordered mediation wherein, the parties agreed not to contact or communicate with one another, as well as to not disparage one another.

The question presented before the California Supreme Court was whether the non-disparagement clause in the parties’ mediation agreement potentially applied to and thereby limited the defendant’s ability to bring a subsequent unlimited civil lawsuit against the plaintiff seeking damages. The defendant later filed such a lawsuit and the plaintiff cross-complained for breach of contract and specific performance, arguing that the
defendant’s lawsuit violated the non-disparagement clause, and the plaintiff moved to this new complaint under the anti-SLAPP statute.

The California Supreme Court held that the mediation agreement as a whole and the specific context in which it was reached, an abbreviated California Code of Civil Procedure Section 527.6 proceeding, preclude the plaintiff’s broad reading of the non-disparagement clause. Accordingly, plaintiff failed to show the requisite minimal merit on the critical element of his breach of contract claim that is defendant’s obligation under the agreement to refrain from making disparaging statements in litigation and thus cannot defeat the defendant’s anti-SLAPP motion.

  1. (Exhibit Cost Recovery) Cost for demonstratives and photocopies of exhibits prepared for trial, but ultimately not used are not categorically recoverable but are recoverable in the trial court’s discretion. Mickey Segal v. Asics America Corporation (No. S263569 Second Appellate District, Division Four No. B299184 Los Angeles County Superior Court No. BC597769 Filed January 13, 2022)

The California Supreme Court granted to review to resolve a conflict among the Courts of Appeal regarding whether costs incurred in preparing photocopies of exhibits and demonstrative aids for trial are recoverable under section 1033.5 of the California Code of Civil Procedure even if they were not ultimately used at trial. In this case, the Court of Appeal held that such exhibit-related costs are recoverable, which allows the recuperation of costs for models, enlargements, and photocopies of exhibits “if they were reasonably helpful to aid the trier of facts.” The court further held that such costs may be awarded in the trial court’s discretion.

The California Supreme Court concluded that costs related to unused photocopies of trial exhibits and demonstratives are not categorically recoverable under section 1033.5(a)(13), but they may still be awarded in the trial court’s discretion pursuant to California Code of Civil Procedure Section 1033.5(c)(4). Accordingly, it affirmed the Court of Appeal, although on slightly narrower grounds. The court noted section 1033.5(a)(13) states on its faith that any unused amounts she used in photocopies of exhibits could not be used because they would not assist the trier fact. Nonetheless, 1033.4(c)(4) provided an option for the discretionary approval by the trial court.

  1. (Photocopy Charges) Rates charged for pre-litigation photocopies of clients’ medical records did ot violate statutory limits since charging vendor was acting as an agent of the requesting attorney. Spencer S. Busby, APLC v. Bactes Imaging Solutions, LLC (D078204 Super. Ct. No. 37-2014-00030629-CU-MC-CTL California Court of Appeal Fourth Appellate District Division One Filed January 19, 2022)

Defendant contracted with health care providers to respond to pre-litigation requests from attorneys seeking access to their clients’ medical records. After the defendant received an attorney’s request, the defendant then identifies the responsive medical records, reviews the records and other documentation for regulatory compliance, and notifies the attorney about options by which she may inspect or obtain photocopies of the records. One option available to the attorneys, among others, is to hire and pay the defendant to provide photocopies of the records.

Plaintiff was the class representative of nearly 10,000 attorneys who hired the defendant to provide photocopies of their clients’ medical records. The plaintiff sued defendant, claiming that it charged photocopying rates exceeding the rates permitted by Evidence Code section 1158 which sets maximum rates health care providers may charge attorneys for pre-litigation photocopies of the clients’ medical records.

After a bench trial, the trial court found the defendant acted as an agent of the health care providers when it responded to the attorneys’ requests for medical records; however, it found the defendant acted as an agent of the requesting attorneys when it photocopied the medical records and provided them to the attorneys. Because the defendant did not act as an agent of the health care providers when it provided the photocopied records to the attorneys, the court found that the defendant did not violate section 1158. The trial court entered judgment in favor of the defendant accordingly.

The appeals court agreed that the trial courts reasoning and the outcome of which the proceedings below and affirmed the judgment.

  1. (Jury Waiver) A party who waived its right to a jury trial by failing to post jury fees failed to demonstrate how it was prejudiced by a court trial. Tricoast Builders, Inc. v. Nathaniel Fonnegra (No. B303300 Los Angeles County Super. Ct. No. PC056615 California Court of Appeal Second Appellate District Division Two Filed January 21, 2022)

Plaintiff brought an action against defendant in September 2015. The matter was originally set for a jury trial at the defendant’s request. Four years later on the day of trial, the defendant waived a jury trial. Plaintiff made an oral request for a jury trial and offered to post jury fees that day. The trial court ruled that the defendant waived its right to a jury trial by failing to timely post jury fees and denied that plaintiff’s oral motion for relief from the waiver. Plaintiff did not seek writ review of the trial court’s denial of relief from jury waiver, and the matter proceeded to a bench trial at which the defendant prevailed.

The appeals court affirmed finding no abuse of discretion in the trial court’s order determining a waiver occurred in the case. It noted that the Legislature’s 2012 amendments to Code of Civil Procedure section 631 provide that a civil litigant may waive their constitutional right to a jury trial by failing to timely deposit jury fees in advance of trial, and trial court’s decision on whether there has been such a waiver is reviewed under an abuse of discretion standard. As noted above, the appeals court found no abuse of discretion. The appeals court also noted that the trial court invited the plaintiff to seek writ review when its request for relief from jury waiver was denied. The appeals court distinguished the case from Mackovska v. Viewcrest Road Properties LLC, which held that no showing of prejudice should be required in a posttrial challenge to denial of the relief from jury waiver. In the Mackovska case, the appellant requested a trial by jury but failed to post timely fees. This occurred more than three months before trial, as well as the party in that case filing a motion for relief from jury waiver. Here, the plaintiff made no request for jury trial until the day of the trial.

  1. (Trip and Fall/MSJ) Despite plaintiff not remembering her fall, causation was triable issue of fact since evidence could lead to a reasonable and probable inference that defendant’s negligence contributed to the injury. Lydia Kaney v. Marilyn Mazza (B302835 Los Angeles County Super. Ct. No. BC619247 California Court of Appeal Second Appellate District Division Two Filed January 19, 2022)

In this case, the appeals court was confronted with the issue of whether plaintiff can be barred as a matter of law from proving causation in a slip and fall case if there was no witnesses to the fall and he or she remembers being on the stairs when waking up in pain but does not remember the fall itself. The appeals court determined the answer was “no”, indicating that this was not the law in California. Based upon same, the appeals court concluded that the trial court erred when it granted summary judgment in favor of the defendant on the negligence complaint. The appeals court found that though the plaintiff could not remember falling on the stairs, the circumstantial evidence would permit a trier of fact to make a reasonable and probable inference that the condition of the stairs, including the absence of a handrail, was a substantial factor in the fall. Thus, creating a triable issue of facts with regard to causation, and that summary judgment was improper.

  1. (Trip and Fall/MSJ) Despite plaintiff not remembering her fall, causation was triable issue of fact since evidence could lead to a reasonable and probable inference that defendant’s negligence contributed to the injury. Lydia Kaney v. Marilyn Mazza (B302835 Los Angeles County Super. Ct. No. BC619247 California Court of Appeal Second Appellate District Division Two Filed January 19, 2022)

Plaintiff was visiting her sister at a residential property. The property had only one bathroom and the toilet in the bathroom was located on a raised platform with a two-step stairway leading up to it. While the plaintiff was using the toilet, the bathroom light stopped working. Plaintiff used the stairs and fell and was injured. She filed a lawsuit complaining that the defendant breached a duty of care to her which was the cause of the injuries. One of the defendants moved for summary judgment, arguing that the condition of the stairs was open and obvious, and so even if there was a dangerous condition, a reasonable person would be forewarned of any danger. The trial court granted the plaintiff’s motion. The plaintiff appealed.

The appeals court reversed, finding that the condition although open and obvious, and despite the fact that the plaintiff knew about the existence and condition of the stairs, having used the bathroom multiple times during prior visits, it was the only bathroom on the property and therefore, occupants and guests were forced to use the stairs to access the toilet. Thus, even if the stairs may have been an open and obvious condition, there were still triable issues of facts regarding the foreseeability of injury.

  1. (Anti-SLAPP) Attorney’s escalating series of threats, in separate emails, transformed legitimate settlement demands into unprotected extortion. Falcon Brands, Inc. v. Mousavi & Lee, LLP (No. G059477 Super. Ct. No. 30-2020-01128818 California Courts of Appeal Fourth Appellate District Division Three Filed January 27, 2022).

In this case, the appellate court was asked to determine when an attorney settlement demand laced with threats to report the matter to policing authorities crossed the line and became unprofessional conduct. The underlying facts involved a lawsuit by the plaintiff against the defendant law firm for intentional interference with a contract. The plaintiff argued that the law firm’s email settlement demands were not entitled to protection under the anti-SLAPP law because they constituted illegal attempts to force the plaintiff into settling the underlying matter. The defendant law firm had filed the anti-SLAPP motion in response to the plaintiff’s cross-complaint arguing that the settlement demands were protected speech under anti-SLAPP protection.

The appeals court reversed holding that the law firm’s email settlement demands, when considered in context, were not protected speech in light of the California Supreme Court’s ruling in Flatley v. Mauro (2006) 39 Cal. 4th 299. The appeals court found that the law firm’s escalating series of threats ultimately transformed what had been legitimate demands into something else: extortion. Therefore, the appeals court found that the cause of action for extortion was not protected by the anti-SLAPP law as a result of the well-established “Flatley rule.” The underlying emails involved threats to disclosed plaintiffs unrelated alleged illegal activity related to unpaid wage claims along with demands for settlement went beyond the bounds of protective speech and amounted to extortion. For extortion, it is the threat to reveal damaging information, not any subsequent revelation, that makes the conduct illegal when the threat is linked to a monetary demand. The court found that the fact that the threat was directly linked to the monetary demand was the critical factor in deciding that the anti-SLAPP statute did not apply to the extortion claim.

  1. (Elder Abuse Act) Nurses’ provision of wound care to deceased did not give rise to the substantial caretaking relationship required to establish neglect under the Elder Abuse Act. Oroville Hospital v. The Superior Court of Butte County (Lynda Ambrose) (No. C090570 Super. Ct. No. 16CV03116 California Court of Appeal Third Appellate District Filed January 26, 2022)

Prior to her death, decedent had become entirely dependent upon other for her basic care needs. She depended on her granddaughter for basic needs such as dressing, eating, taking medications, using the restroom, attending physician appointments, and diabetes management. Defendant hospital operated a home health entity that provided the patient in-home nursing services for wound care for a pressure ulcer to her left buttock.

Defendant provided such in-home care on six occasions and four additional occasions spaced by a period of approximately three months. During these time frames, the patient’s wound worsened, and she sustained additional wounds. She was eventually hospitalized, and ultimately died from her wound and complications. The plaintiffs commenced the underlying actions against the defendants alleging a number of causes of action including a cause of action under the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act). Plaintiff claimed that the defendants’ alleged neglect which, they asserted, was committed with recklessness, oppression, fraud, or malice, that’s entitlement to enhance remedies under the Elder Abuse Act. The trial court denied defendant’s motion for summary adjudication as to the Elder Abuse Act cause of action. The defendant asserted it did not have a substantial caretaking or custodial relationship with the decedent, a prerequisite for recovery for neglect under the Elder Abuse Act as discussed in Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal. 4th 148. It further asserted that a reasonable jury could not find them liable for forms of abuse or neglect rising to the level of recklessness. The trial court denied defendant’s motion.

The defendant sought a writ of mandate to mandate to the appellate court directing the trial court to vacate its denial of the motion for summary adjudication and grant the motion. The appeals court issued the requested writ concluding that the trial court erred in its ruling and to issue an order for the trial court to grant the defendant motion for summary adjudication as to the Elder Abuse Act.

The appellate court found that the defendant nurse’s provision of wound care to the patient did not give rise to the substantial caretaking or custodial relationship required to establish neglect under the Elder Abuse Act.
The court reasoned that the wound care provided to the patient was not a basic need of the type an able-bodied and fully competent adult would ordinarily be able of managing on her own. The court went on to state that the wound care was unlike a basic need, such as eating or taking medicine, because wound care involved competent professional medical skill. Thus, the relationship at issue is not the type of arrangement addressed in the Elder Abuse Act.

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.