EBriefs May 31, 2019

FRIDAY, MAY 31, 2019


Ninth U.S. Circuit Court of Appeals

Civil Procedure

A party preserves a challenge to removal by timely moving to remand; when a plaintiff voluntarily asserts a federal claim after removal, doing so establishes federal subject-matter jurisdiction and cures any jurisdictional defect that may exist in the case. A court analyzing whether a defendant is a “primary defendant” for purposes of the Class Action Fairness Act’s home state exception should first assume that all defendants will be found liable; the court should then consider whether the defendant is sued directly or alleged to be directly responsible for the harm to the proposed class or classes, as opposed to being vicariously or secondarily liable; the court should also consider the defendant’s potential exposure to the class relative to the exposure of other defendants. The CAFA requires remand under the home state exception only if all primary defendants are citizens of the alleged home state.

Singh v. American Honda Finance Corporation; filed May 30, 2019


Cite as 2019 S.O.S. 17-35964


Contract Law

The rules of consumer online agreements and consumer paper agreements are the same; there is no rule that an offeror of an adhesive consumer contract specifically highlight or otherwise bring an arbitration clause to the attention of the consumer to render the clause enforceable; where it is clear that a party is assenting to a contract that incorporates other documents by reference, the incorporation is valid—and the terms of the incorporated document are binding—so long as the incorporation is clear and unequivocal, the reference is called to the attention of the other party and he consents thereto, and the terms of the incorporated document are known or easily available to the contracting parties.

In re Holl; filed May 30, 2019


Cite as 2019 S.O.S. 18-70568


Criminal Law and Procedure

A conviction for violation of California Penal Code §4573.6 cannot be a categorical “felony drug offense” triggering a mandatory life term under 21 U.S.C. §841(b)(1)(A).

United States v. Graves; filed May 30, 2019


Cite as 2019 S.O.S. 16-50276


Environmental Law

A citizen suit brought under the Resource Conservation and Recovery Act to compel the U.S. Forest Service to address the use of lead ammunition by hunters in Arizona’s Kaibab National Forest presented a justiciable controversy since there was a genuine adversary issue between the parties and a ruling in the plaintiff’s favor would require the service to mitigate the harm caused by spent lead ammunition, thereby leading to a change in the service’s operation of the Kaibab; nothing in the act’s private civil action provision confers judicial discretion to decline to entertain such a suit.

Center for Biological Diversity v. U.S. forest Service (National Rifle Association of America); filed May 30, 2019


Cite as 2019 S.O.S. 17-15790


immigration Law

An asylum seeker was statutorily ineligible for asylum and withholding of removal where there were serious reasons to believe he committed a serious nonpolitical crime since he was involved in a financial scheme embezzling public funds and he admitted that his involvement in the scheme stemmed from purely economic reasons. Torture does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions, including the death penalty.

Guan v. Barr; filed May 30, 2019


Cite as 2019 S.O.S. 17-71966



Sierra Club, Inc. v. U.S. Fish and Wildlife Services; filed May 30, 2019


Cite as 2019 S.O.S. 17-16560


California Supreme Court

Civil Procedure

A request for costs under Code of Civil Procedure §998 is timely if filed with the arbitrator within 15 days of a final award; in response to such a request, an arbitrator has authority to award costs to the offering party; if an arbitrator refuses to award costs, judicial review is limited.

Heimlich v. Shivji; filed May 30, 2019


Cite as 2019 S.O.S. 2531


Real Property

When a government agency considers increasing a property-related fee, a fee payor can challenge the method of fee allocation without first participating in a Proposition 218 hearing that addresses only a proposed rate increase.

Plantier v. Ramona Municipal Water District; filed May 30, 2019


Cite as 2019 S.O.S. 2537



A utility company has no duty to guard against pecuniary or commercial loss that does not arise from actionable physical, emotional or reputational injury to persons or physical injury to property.

Southern California Gas Leak Cases; filed May 30, 2019


Cite as 2019 S.O.S. 2543


California Court of Appeal

Civil Procedure

A party is not collaterally estopped from litigating an issue when, in a prior proceeding, a dispositive finding had been made, but only by imposing a lesser burden of proof on the party invoking collateral estoppel than that which would have been applied in the subsequent proceeding.

Bennett v. Rancho California Water District; Fourth District, Div. Three; filed May 29, 2019


Cite as 2019 S.O.S. 2551


Criminal Law and Procedure

The Sixth Amendment is violated if a defendant makes his intention to maintain innocence clear to his counsel, and counsel overrides that objective by conceding guilt, but counsel is not required to intuit a client’s objective at trial based upon statements made to the police, a competency evaluator, and a probation officer.

People v. Franks; Third District; filed May 29, 2019


Cite as 2019 S.O.S. 2559


Professional Responsibility

A denial of a petition to compel a Mandatory Fee Arbitration Act arbitration is not an appealable order.

Levinson Arshonsky & Kurtz LLP v. Kim; Second District, Div. One; filed May 29, 2019


Cite as 2019 S.O.S. 2564



People v. Franks; Third District; filed May 30, 2019


Cite as 2019 S.O.S. 2568