eBrief May 15, 2019



Ninth U.S. Circuit Court of Appeals

Consumer Protection

California’s Investigative Consumer Reporting Agencies Act is unconstitutionally vague as applied to tenant screening reports due to its overlap with California’s Consumer Credit Reporting Agencies Act. 15 U.S.C. § 1681c(a) permits consumer reporting of a criminal charge for only seven years following the date of entry of the charge, rather than the date of disposition; the dismissal of a charge does not constitute an adverse item and may not be reported after the reporting window for the charge has ended.

Moran v. The Screening Pros; filed May 14, 2019


Cite as 2019 S.O.S. 12-57246


Criminal Law and Procedure

A judge’s offer to appoint standby counsel did not render a defendant’s waiver of counsel equivocal. A defendant’s equivocal statements earlier in a hearing do not taint his final, unequivocal waiver of counsel. The fact that a defendant presented an unorthodox and ultimately unsuccessful defense does not warrant finding that he could not represent himself.

United States v. Audette; filed May 14, 2019


Cite as 2019 S.O.S. 17-10017


Real Property

A priority use provision, an affirmative obligation to maintain and repair, and the ability to lease the property to others together create sufficient control of the property such that a landowner who leases the property is held liable as a premises owner.

Adamson v. Port of Bellingham; filed May 14, 2019


Cite as 2019 S.O.S. 16-35314


California Court of Appeal

Civil Procedure

Code of Civil Procedure §418.10 applies before a defendant has made a general appearance and it allows a defendant filing a motion to dismiss an action for lack of personal jurisdiction to file simultaneously a motion to stay or dismiss the action for inconvenient forum, without having the latter motion constitute a general appearance; §410.30 applies after a defendant has made a general appearance.

Global Financial Distributors v. Superior Court (Perera); Second District, Div. Seven; filed April 16, 2019, publication ordered May 13, 2019


Cite as 2019 S.O.S. 2226


Criminal Law and Procedure

The amendments to Penal Code §12022.5(c), §12022.53(h), §667(a) and §1385(b) apply retroactively to cases not yet final at the time the amendments took effect.

People v. Zamora; Fourth District, Div. Two; filed May 14, 2019


Cite as 2019 S.O.S. 2231


Criminal Law and Procedure

Penal Code §1308(1) unambiguously specifies, without exception, that if an appeal bond is not posted and a bail forfeiture related summary judgment remains unpaid after 30 days from service of the notice of entry of judgment, the indebted person or company may not be accepted as a surety on bail.

County of Orange v. Seneca Insurance Company; Fourth District, Div. Three; filed April 19, 2019, publication ordered May 14, 2019


Cite as 2019 S.O.S. 2234


Employment Law

A demurrer was properly sustained to a retaliation claim where the plaintiff did not allege any of the named defendants or non-party actors held any retaliatory animus toward plaintiff or even knew of her prior lawsuit. A trial court did not commit an abuse of discretion in denying a plaintiff leave to amend a claim when there was an unexplained delay of 14 months in raising the new cause of action. The Government Claims Act does not allow a plaintiff to “cure” her failure to file a pre-lawsuit claim by filing a post-lawsuit claim.

Le Mere v. Los Angeles Unified School District; Second District, Div. Eight; filed April 30, 2019, publication ordered May 14, 2019


Cite as 2019 S.O.S. 2236


Government Law

An agency’s statutory authority to manage groundwater necessarily includes the ability to limit the quantity of water that individual users may extract, however, programs for the management of groundwater resources must be adopted pursuant to the notice, hearing and protest procedures specified in the Water Code.

Gomes v. Mendocino City Community Services District; First District, Div. Four; filed May 14, 2019


Cite as 2019 S.O.S. 2240



A trial court abused its discretion in categorically excluding all evidence of inappropriate conduct by a teacher that did not involve a teacher’s physical contact with students since at least some of that evidence was relevant to show the teacher posed a risk of sexual abuse to students, and the that the defendant school district should have been aware of this; the error was prejudicial since it was reasonably probable that the admission of this evidence would have led to a result more favorable to the plaintiff.

D.Z. v. Los Angeles Unified School District; Second District, Div. Four; filed May 14, 2019


Cite as 2019 S.O.S. 2244



People v. Salcido; Fourth District, Div. Two; filed May 13, 2019


Cite as 2019 S.O.S. 2254