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  Monday, January 7, 2019  
The following caselaw summaries are provided as a courtesy to Los Angeles County Bar Association members by the Metropolitan News-Enterprise www.metnews.com. Summaries from the past 90 days are archived and searchable on the LACBA Web site at www.lacba.org/news-and-publications/daily-ebriefs.
Constitutional Law
Qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, but the clearly established right must be defined with specificity. Assuming without deciding that a court of appeals decision may constitute clearly established law for purposes of qualified immunity, it is not clear how case law pertaining to police force against individuals engaged in passive resistance has applicability to a situation involving active resistance.

Escondido v. Emmons - filed Jan. 7, 2019
Cite as 2019 S.O.S. 17-1660
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Criminal Law and Procedure
A defendant's claim of intellectual disability must be evaluated based solely on holdings that were clearly established at the relevant time.

Shoop v. Hill - filed Jan. 7, 2019
Cite as 2019 S.O.S. 18-56
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Administrative Law
A disciplinary action against a private university student for an alleged sexual assault was not rendered moot by his arrest and expulsion for unrelated criminal acts. A disciplinary decision may not be invalidated solely on the basis of an inference or appearance of bias. The fact that a university investigator did some work as a sexual assault victims' advocate did not establish a bias against an accused student. When a student faces serious discipline for alleged sexual misconduct, and the credibility of witnesses is central to the adjudication of the charge, fundamental fairness requires that the university must at least permit cross-examination of adverse witnesses at a hearing in which the witnesses appear in person or by some other means-such as means provided by technology like videoconferencing-before one or more neutral adjudicators with the power independently to judge credibility and find facts. The fact-finder may not be a single individual with the inconsistent role of investigator.

Doe v. Allee - filed Jan. 4, 2019, Second District, Div. Four
Cite as 2019 S.O.S. 120
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Employment Law
Imprecise evidence by an employee can provide a sufficient basis for damages when the employer fails to keep accurate records of the employee's work hours, but an employee is not entitled to premium or regular pay for missed meal breaks if he cannot show the employer knew, or should have known, he was working through authorized meal breaks.

Furry v. East Bay Publishing - filed Dec. 12, 2018, publication ordered Jan. 4, 2019, First District, Div. One
Cite as 2019 S.O.S. 134
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Government Law
The words "shall declare as part of the bid" in Labor Code Sec. 1072(a) requires that a bidder must state in its bid whether it will retain the employees of the prior contractor for 90 days. A bidder does not get the statutory preference if it does not agree to retain the employees of the prior contractor in its bid.

International Brotherhood of Teamsters, Local 848 v. City of Monterey Park (First Transit) - filed Jan. 7, 2019, Second District, Div. Seven
Cite as 2019 S.O.S. 139
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Insurance Law
A pre-litigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration. An insurance carrier and its attorney cannot gain the protection of the privilege to protect their own communications merely by establishing that they anticipated a potential for litigation. There may always be potential for litigation when an insurance claim is denied, but an investigation involved in processing an insurance claim is not necessarily conducted in anticipation of litigation even where there is some basis to suspect fraud by the insured. The seriousness of an alleged invasion of privacy by the release of an individual's tax returns presents a question of fact that cannot be resolved on demurrer. An insurer's bad faith denial of a claim can support a cause of action for financial elder abuse, but an attorney who assists the insurer in investigating the claim, acting solely as representative of the insurer, cannot be liable for financial elder abuse.

Strawn v. Morris, Polich & Purdy - filed Jan. 4, 2019, First District, Div. Two
Cite as 2019 S.O.S. 143
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Professional Responsibility
An attorney was not subject to disqualification from representing a former executive of a company just because he had also been an executive of the company, but he was subject to disqualification that he had access to confidential information as a company executive which was pertinent to the litigation between the company and the former executive.

O'Gara Coach Company, LLC v. Ra - filed Jan. 7, 2019, Second District, Div. 7
Cite as 2019 S.O.S. 149
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In re Cody R. - filed Jan. 7, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 155
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