Appellate cases to watch this fall

In this article, we highlight pending 9th U.S. Circuit Court of Appeals and California Supreme Court civil cases that should be on litigators' radar this fall. The cases address issues ranging from trademark disputes, to worker classification status, to insurance law, to anti-SLAPP issues, wage and hour disputes, medical malpractice and more. Several of the California Supreme Court cases we discuss came to the court either by direct petition for review and on certification from the 9th Circuit Court of Appeals. Increasingly, the 9th Circuit has sua sponte asked the California Supreme Court to weigh in on novel, case-dispositive state law issues.

9TH CIRCUIT

Trademark Law

Pasadena Tourn. of Roses Ass'n v. City of Pasadena, 21-55856

The Tournament of Roses Association moved the 2021 Rose Bowl from its Pasadena stadium to Arlington, Texas after California imposed limits on public gatherings amid a surge in coronavirus infections. The relationship between the Tournament and Pasadena began to sour when Pasadena's mayor expressed his disappointment regarding the Arlington game to the New York Times.

In Pasadena Tournament of Roses Association, the Tournament alleged that Pasadena's mayor wrongly told the New York Times that the city co-owns the Rose Bowl trademark and that the football game "belongs" to the city. It also accused the city of infringing on a trademark in an Instagram post using the "#RoseBowl" to describe the 1956 Rose Bowl Game program depicted in the post. Additionally, the Tournament sought a declaration that it may hold the game elsewhere during future "force majeure" events.

The district court dismissed the declaratory relief claim because it was contingent on future events and therefore was not ripe for adjudication. Additionally, the court dismissed the trademark claim, commenting that Pasadena and the Tournament "have been business partners for decades. Due to this mutually beneficial relationship, [the Tournament] has consistently benefitted from Pasadena's promotion of [the Tournament's] game and its history and likely encourages such promotion."

The Tournament is appealing the order. The opening brief is due Nov. 18.

Employee vs. Independent Contractor Status

Mobilize the Message LLC et al. v. Rob Bonta, 21-55855

The California Supreme Court's 2018 decision in Dynamex Operations West Inc. v. Superior Court, 4 Cal. 5th 903, introduced the "ABC test," which presumes employee status unless a company can demonstrate that a worker is free from its control, performs work outside its line of business, and operates independently. The California Legislature later passed AB 5, which expressly incorporated the ABC test into state law.

In Mobilize the Message, the plaintiffs sought a preliminary injunction to classify the door-knockers it would hire to work during the 2022 municipal elections as independent contractors because it would be more expensive and cause "irreparable harm" to categorize them as employees. The plaintiffs said that AB 5 discriminates against political speech because other industries that employ door-to-door workers are deemed independent contractors under AB 5.

The district court found plaintiffs' argument to be "unpersuasive" and concluded that they did not demonstrate the requisite urgency for an injunction because they filed their suit two years after AB 5 was signed into law.

On Aug. 10, the plaintiffs appealed the order to the 9th Circuit.

CALIFORNIA SUPREME COURT

Insurance Law

Allied Premier Ins. v. United Fin. Cas. Co., S267746

Allied Premier Insurance sued United Financial Casualty in the Central District of California to recover half of the settlement in a wrongful death lawsuit. The deceased died in a collision with a commercial truck driver. United argued that its policy with the deceased parent's lapsed and denied coverage.

The district court entered judgment for Allied and found that United covered the deceased's parents because it failed to cancel the insurance coverage on file with the Department of Motor Vehicles.

United appealed to the 9th Circuit, arguing that California's Motor Carriers of Property Permit Act (Vehicle Code Section 34601) allows a policy to be canceled without notice to the DMV.

The 9th Circuit certified a threshold question of state law to the California Supreme Court: whether the act considers a commercial auto insurer covered until it cancels the insurance certificate with the DMV. The California Supreme Court agreed to decide the question.

Allied Premier Insurance is not the only certified question before the court. In recent years, the court has accepted and decided multiple certified questions from the 9th Circuit. See, e.g., Yahoo! Inc. v. Nat'l Union Fire Ins. Co., 2019 DJDAR 455 (duty to defend the insured against a claim under the Telephone Consumer Protection Act); Busker v. Wabtec Corp., 2021 DJDAR 8407 (holding that installing electrical equipment on locomotives and rail cars does not fall within Labor Code Section 1720(a)(1)'s "public works" definition); Mendoza v. Fonseca McElroy Grinding, 2021 DJDAR 8426 (engineers are not employed upon "public work" under California Labor Code Section 1772). (For more on this trend see our articles, "When your Ninth Circ. Case Needs California High Court Input," Law360 (June 4, 2021), and, "Ninth Circuit Certification Trends," The Juris Lab (July 29, 2021).)

Anti-SLAPP

Serova v. Sony Music Entertainment, S260736

In Serova, the plaintiff alleged that defendants marketed a posthumous Michael Jackson album in violation of the Unfair Competition Law (Business and Professions Code Section 17200) and the Consumer Legal Remedies Act (Civil Code Section 1750), because the defendants "misleadingly represented that Jackson was the lead singer on each of the 10 vocal tracks on the album, when in fact he was not the lead singer on three of those tracks." The defendants appealed from the superior court's order partially denying their motion to strike under California's anti-SLAPP statute (Civil Code Section 425.16).

In FilmOn.com Inc. v. Double Verify Inc., 7 Cal. 5th 133 (2019), the California Supreme Court held that the plaintiff's claims against the defendants arose from conduct furthering the defendants' right of free speech in connection with a public issue and that the plaintiff did not show a probability that her claims under the UCL and the CLRA would succeed because the claims concern noncommercial speech.

The Court of Appeal relied on FilmOn to conclude that the defendants' challenged statements -- that Michael Jackson was the lead singer on the three disputed tracks -- in Serova were sufficiently connected to an issue of public interest to warrant anti-SLAPP protection.

The California Supreme Court granted review to determine: (1) Do representations a seller made about a creative product on the product packaging and in advertisements constitute speech in connection with a public interest issue within the meaning of the anti-SLAPP statute; and (2) do marketing representations constitute commercial speech and does it matter if the seller lacked personal knowledge that the representations were false for liability under the UCL and CLRA?

The case has been fully briefed. The court is also considering a related anti-SLAPP issue in Geiser v. Kuhns, S267032, concerning application of the first step of the FilmOn test and the level of deference to be accorded a defendant's framing of the public interest issue at this step.

Labor and Employment

Grande v. Eisenhower Medical Center, S261247

In Grande, the plaintiff brought a wage and hour class action against a temporary staffing agency on behalf of the agency employees assigned to California hospitals. The staffing agency settled with the class, including the plaintiff who executed a release of claims, and the trial court entered a judgment incorporating the settlement agreement.

A year later, the plaintiff brought another class action, this time alleging the same violations against the medical center. The staffing agency intervened, asserting that the plaintiff could not bring a separate lawsuit against the medical center because she settled her claims in the class action. The trial court ruled that the medical center was not a released party under the settlement agreement and could not avail itself of res judicata because it was neither a party to the prior litigation nor in privity with the staffing agency.

The Court of Appeal affirmed the trial court's ruling and the Supreme Court agreed to review whether a class who previously released future claims may bring a second class action premised on the same violations against another defendant.

Medical Malpractice

Lopez. v. Ledesma, S262487

In Lopez, the plaintiff claimed that two physician's assistants failed to timely diagnose the malignant melanoma that caused her 4-year-old daughter's death. The trial court awarded noneconomic damages of $4.25 million but reduced it to $250,000 under California's cap on noneconomic damages in medical malpractice cases (Civil Code Section 3333.2(b)).

In the Court of Appeal, the plaintiff argued that the physician's assistants violated a California statute (Civil Code Section 3333.2(c)(2)) because they provided medical care without physician supervision. Thus, they acted outside the scope of their license and the $250,000 cap should not apply.

The Court of Appeal affirmed the reduction of the award and created a bright-line rule, stating that a physician assistant acts within the scope of her license "if he or she has a legally enforceable agency agreement with a supervising physician, regardless of the quality of actual supervision."

The California Supreme Court granted review to decide if the cap on noneconomic damages applies to physician's assistants acting outside the scope of their care. The case has been fully briefed and awaits oral argument.

Litigation Privilege

Doe v. Olson, S258498

In Doe, the plaintiff sought a restraining order against the defendant because of sexual harassment. As part of the settlement, the plaintiff and the defendant agreed "not to disparage one another" for three years.

A year later, the plaintiff sued the defendant for damages, based on the same instances of sexual harassment. The defendant cross-complained for breach of contract, contending the plaintiff's new allegations were disparaging and breached their settlement agreement. The plaintiff claimed Civil Code Section 47(b) protected her allegations. The trial court agreed with the plaintiff and granted a motion to strike the defendant's breach of contract claim under the anti-SLAPP statute.

The Court of Appeal held that the litigation privilege did not bar the breach of contract claim because the plaintiff waived her right to make disparaging comments in the settlement agreement. The court held that enforcement of the agreement was not contrary to the public policy of the litigation privilege -- promoting access to the courts -- and that the privilege did not bar the defendant's contract claim.

The Supreme Court granted review to determine if the Court of Appeal was correct.

Title IX Administrative Hearings

Boermeester v. Carry, S263801

Boermeester was a student and member of the University of Southern California football team. After two USC students observed Boermeester put his hand on Jane Roe's neck and push her against a wall, the two students reported the incident to the USC men's tennis coach. USC's Title IX office began an investigation into the alleged incident. Ultimately, USC expelled Boermeester for committing intimate partner violence against Jane Roe.

The Court of Appeal found that USC did not provide "a meaningful opportunity to cross-examine critical witnesses at an in-person hearing" as recognized under Title IX regulations. The court reversed the trial court opinion and remanded with additional directions to the Los Angeles County Superior Court.

The California Supreme Court granted USC's petition for review to determine if the common law right to fair procedure requires private universities to provide cross-examination at a Title IX hearing and the impact of Senate Bill 493, which prohibits courtroom-style cross-examination of victims, on the case.

Torts

Hoffmann v. Young, S266003

In Hoffman, the plaintiff filed suit against her friend and his parents after she was injured while riding her motorcycle on the parents' motocross track. The jury found that the parents were not liable for the collision or the allegedly negligent medical care provided to the plaintiff after the collision.

The Court of Appeal held that the friend's express invitation to the plaintiff stripped his parents of the recreational use immunity defense under Civil Code Section 846. The Supreme Court granted review to determine if an invitation to enter by a non-landowner that was made without the landowner's knowledge or express approval satisfy the requirements of Section 846 and abrogate the landowner's immunity from liability for damages suffered during the recreational use of the property?

The Supreme Court considered a related issue in Gonzalez v. Mathis, 2021 DJDAR 8605, finding that a landowner who hires an independent contractor is not liable for the contractor's employee's injury when there is a known risk on the premises, but there are no reasonable precautions the landowner could have taken to avoid or minimize the hazard..

Unruh Civil Rights Act

Brennon B. v. Superior Court, S266254

In Brennon, the plaintiff argued that even if a public school district is not a business establishment, it could be liable under the Unruh Act (Civil Code Section 51) provided the alleged discriminatory conduct is actionable under the Americans with Disabilities Act.

The trial court sustained the school district's demurrer to the plaintiff's claims and denied his petition for a writ of mandate. The Court of Appeal concluded the Unruh Act imposes liability only on business establishments and therefore rejected the plaintiff's assertion.

The Supreme Court granted review to determine whether a public school district may be held liable under the Unruh Act where the alleged discriminatory conduct is actionable under the ADA. 