eBriefs June 19, 2019



Ninth U.S. Circuit Court of Appeals

Criminal Law and Procedure

Rule 32.2(a) of the Arizona Rules of Criminal Procedure, pursuant to which the Arizona postconviction review court imposed a procedural default as to a habeas corpus petitioner’s judicial bias claim, is independent of federal law and adequate to warrant preclusion of federal review. A habeas corpus petitioner didn’t suffer prejudicial error by a trial instruction that told the jury the petitioner could not be found guilty of first-degree murder if the jury believed he acted impulsively. A state court erred in concluding that a petitioner’s family history is not entitled to weight as a mitigating factor at sentencing, but the error was not prejudicial.

Martinez v. Ryan; filed June 18, 2019


Cite as 2019 S.O.S. 08-99009


Government Law

A government agency did not conduct a search reasonably calculated to uncover all relevant documents in response to a plaintiff’s Freedom of Information Act request where the agency provided summaries of its hiring process, but there was no search conducted for the underlying documents, and the agency’s declaration omitted details such as names of the attorneys who searched the relevant documents and the amount of time devoted to the search. A third-party consultant is not an “agency” for purposes of the FOIA or its exemptions.

Rojas v. Federal Aviation Administration; filed June 18, 2019


Cite as 2019 S.O.S. 17-55036


California Court of Appeal

Environmental Law

A water quality control board must establish two factors before issuing a cleanup and abatement order to a party: the board must show that party caused or permitted waste to be discharged into state waters, and that the waste creates, or threatens to create pollution or nuisance conditions; the nuisance creation element does not require application of the common law substantial factor test for causation.

San Diego Gas & Electric Company v. San Diego Regional Water Quality Control Board; Fourth District, Div. One; filed June 18, 2019


Cite as 2019 S.O.S. 2816


Healthcare Law

An administrative appeal challenging the overall legality of a Medi-Cal audit reduction does encompass a later challenge to an alleged calculation error within that same audit for purposes of determining timeliness of the calculation error challenge.

Hoag Memorial Hospital Presbyterian v. Kent; First District, Div. Three; filed June 17, 2019


Cite as 2019 S.O.S. 2822



A plaintiff’s failure to read all the terms of an 80-page lease agreement was not dispositive of his claim that he was misled by the defendant’s oral representations where the plaintiff would not have discovered the misrepresentations by reading the lease. A defendant waived its challenge to the competency of a plaintiff’s by failing to object to the expert’s qualifications during the damages phase of the trial; the expert was qualified to testify as to a plaintiff’s lost profits since the expert had experience in providing financial services to restaurants, including analyzing trending sales, and he possessed relevant education in accounting, finance, and statistics. A party may rescind a contract even where the party does not suffer any pecuniary loss, if the party was induced by fraud into entering into the contract.

Orozco v. WPV San Jose; Sixth District; filed June 17, 2019


Cite as 2019 S.O.S. 2826



People v. Montiel; First District, Div. One; filed June 17, 2019


Cite as 2019 S.O.S. 2839


Superior Court Appellate Division

Real Property

An eligible elderly or disabled tenant may defeat an owner’s claim of possession under the Ellis Act by showing that the owner changed a tenancy term during the act’s notice period. A writing that is a contract or a binding confirmation of a lease agreement is an “instrument” under Evidence Code §622.

Hilaly v. Allen; Superior Court of California, County of San Francisco; filed May 21, 2019


Cite as 2019 S.O.S. 2840