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  Wednesday, April 24, 2019  
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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.
U.S. SUPREME COURT
Contract Law
An order that both compels arbitration and dismisses the underlying claims qualifies as "a final decision with respect to an arbitration" within the meaning of 9 U S.C. Sec. 16(a)(3). Under the Federal Arbitration Act, an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration.

Lamps Plus, Inc. v. Varela - filed April 24, 2019
Cite as 2019 S.O.S. 17-988
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NINTH U.S. CIRCUIT COURT OF APPEALS
Constitutional Law
A plaintiff's Fourth Amendment claims accrued at the time he was searched and arrested under California law, the statute of limitations was tolled during his criminal proceedings in Superior Court, but not during the criminal appeal. Where a plaintiff's 42 U.S.C. Sec. 1983 claim accrues pre-conviction, the possibility that the rule from Heck v. Humphrey may require dismissal of that not-yet-filed claim is not sufficient to trigger tolling under California Code of Civil Procedure Sec. 356. A conviction or judgment that has been reversed on appeal and vacated lacks preclusive effect and cannot serve as collateral estoppel in a later proceeding.

Mills v. City of Covina - filed April 24, 2019
Cite as 2019 S.O.S. 17-56343
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Criminal Law and Procedure
Drug quantities in an adopted pre-sentence investigation report, without an explicit and specific drug quantity finding by the original sentencing judge, are not binding in 18 U.S.C. Sec. 3582(c)(2) proceedings.

United States v. Rodriguez - filed April 24, 2019
Cite as 2019 S.O.S. 17-10233
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Government Law
Documents produced by an agency's third-party consultant do not constitute "intra-agency" memorandums for purposes of the Freedom of Information Act; records held by the consultant, that have not been transmitted to the agency, are beyond the reach of FOIA.

Rojas v. FAA - filed April 24, 2019
Cite as 2019 S.O.S. 17-55036
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Government Law
The Public Utility Regulatory Policies Act requires utilities to purchase electricity directly from "qualifying facilities" and to pay those facilities at a rate equal to the utility's "avoided cost" when a state has a Renewables Portfolio Standard and the utility is using a qualifying facility's energy to meet this standard, the utility cannot calculate avoided cost based on energy sources that would not also meet the standard. If a qualifying facility displaces a utility's need for additional capacity, then the utility is required to include capacity costs as part of avoided cost. The PURPA requires utilities to connect qualifying facilities to the power grid, but the utilities can charge connection fees.

Californians for Renewable Energy v. California Public Utilities Commission - filed April 24, 2019
Cite as 2019 S.O.S. 17-55297
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Intellectual Property
A party sufficiently alleges ownership of valid, registered copyrights even if it does not include images of the protected artistic expression or copies of the registration materials. When pleading substantial similarity, a copyright infringement plaintiff must allege facts from which a reasonable finder of fact could infer that the defendant had a reasonable opportunity to copy his work.

Malibu Textiles, Inc. v. Label Lane International, Inc. - filed April 24, 2019
Cite as 2019 S.O.S. 17-55983
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Order
Knighton v. Cedarville - filed April 24, 2019
Cite as 2019 S.O.S. 17-15515
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CALIFORNIA COURT OF APPEAL
Administrative Law
A litigant must fully present its arguments and evidence at an administrative hearing before seeking judicial review, however, the forfeiture for failure to preserve issues doctrine does not bar a reviewing court from considering an issue not raised before the agency when circumstances warrant. Public Resources Code Sec. 50001 does not require a local enforcement agency to deny a permit revision on the ground that the expanded operations are not already described in the siting element.

Sustainability, Parks, Recycling and Wildlife Defense Fund v. Department of Resources Recycling and Recovery (Waste Connections) - filed March 26, 2019, publication ordered April 22, 2019, Third District
Cite as 2019 S.O.S. 1919
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Administrative Law
An attempt to bribe an auditor constituted dishonesty in "performing the functions and duties of a certificate holder" for the operation of a recycling center, even though offering a bribe is not a function or duty of a recycling center, because certificate holders must keep the proper records of their operations and the bribe was attempted to have the auditor overlook deficiencies with the certificate-holder's obligation to keep proper records. The Public Resources Code does not grant a probationary certificate holder a right to a hearing prior to revocation of her business license. A pre-revocation determination is not a "hearing" subject to Government Code Sec. 11430.10. Government Code Sec. 11425.10 relates to the conduct of adjudicatory proceedings, not to the basis for discipline.

Poncio v. Department of Resources recycling and Recovery - filed March 27, 2019, publication ordered April 23, 2019, Third District
Cite as 2019 S.O.S. 1930
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Criminal Law and Procedure
A defendant's failure to object to an order requiring him to reimburse the county for his public defender did not forfeit his ability to appeal based on ability-to-pay grounds where the defendant did not receive notice that he might be ordered to pay for his court-appointed attorney or that he had the right to a hearing to determine his ability to pay.

People v. Rodriguez - filed April 23, 2019, Second District, Div. Three
Cite as 2019 S.O.S. 1935
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Criminal Law and Procedure
The portion of CALCRIM No. 334 that instructs the jury that tells jurors that the burden is on the defendant to prove that it is more likely than not that the witness was an accomplice should be omitted when the defendant is charged with in concert crimes.

People v. Martinez - filed April 24, 2019, Second District, Div. Six
Cite as 2019 S.O.S. 1938
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Tax Law
A taxpayer was not entitled to an award of attorney fees under Revenue and Taxation Code Sec. 1611.6 where the assessment appeals board's resolution of his claim was neither arbitrary nor capricious, nor caused by a legal position taken in bad faith. Revenue and Taxation Code Sec. 5152 only authorizes an award of attorney fees in an action in which a court has allowed the recovery of taxes.

SSL Landlord v. County of San Mateo - filed April 23, 2019, First District, Div. Three
Cite as 2019 S.O.S. 1942
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Torts
Even if CACI No. 1009B's use of substantial-factor-causation does not correctly state the law regarding affirmative contribution, a defendant was not prejudiced by the issuance of the instruction where the evidence supported a finding that the defendant had affirmatively contributed to a worker's injury, and the jury found the defendant to be 100 percent at fault. A trial court does not err in refusing to give instructions that are incomplete or erroneous, and the court is under no duty to revise a requested instruction to make it state the law correctly. Cal-OSHA regulations have not abrogated the Privette doctrine, and the regulations are admissible only where other evidence establishes the general contractor affirmatively contributed to the employee's injuries.

Strouse v. Webcor Construction - filed March 27, 2019, publication ordered April 23, 2019, First District, Div. Three
Cite as 2019 S.O.S. 1946
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