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  Tuesday, December 4, 2018  
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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.
NINTH U.S. CIRCUIT COURT OF APPEALS
Criminal Law and Procedure
The federal prosecution of any person who "encourages or induces" an alien to come to, enter, or reside in the United States if the encourager knew, or recklessly disregarded the fact that such coming to, entry, or residence is or will be in violation of law, is unconstitutionally over broad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to its narrow band of legitimately prohibited conduct and unprotected expression.

United States v. Sineneng-Smith - filed Dec. 4, 2018
Cite as 2018 S.O.S. 15-10614
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Employment Law
An arbitrator did not exceed his authority in reforming a collective bargaining agreement upon finding that the parties were mutually mistaken as to its terms when they agreed to it, even though the agreement contained a "no-add" provision.

ASARCO, LLC v. United Steel, Paper and Forest - filed Dec. 4, 2018
Cite as 2018 S.O.S. 16-16363
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Employment Law
An attorney's participation in a Department of Labor investigation of an Employee Retirement Income Security Act trust fund trustee constituted a protected activity for purposes of 29 U.S.C. Sec. 1140. The fact that an individual defendant was not the ultimate decision maker for a retaliatory action does not immunize him under a cat's-paw theory of liability. Pursuant to ERISA Sec. 404 a court must distinguish between actions a fiduciary took in connection with its fiduciary responsibilities to the plan and those that actions taken as an individual or entity acting in its corporate capacity. ERISA Sec. 502(a)(5) does not provide a basis for a permanent injunction where no aspect of the injunction redressed or enforced a violation of ERISA Sec. 510.

Acosta v. Brain - filed Dec. 4, 2018
Cite as 2018 S.O.S. 16-56529
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CALIFORNIA COURT OF APPEAL
Criminal Law and Procedure
A waiver of a jury trial on the prior convictions that are alleged in the original information is not effective–as a matter of
law–as to entirely new prior conviction allegations that are added by amendment later. When a defendant has waived a jury trial on prior conviction allegations, and when the prior conviction allegations are amended typographically and not substantially, the waiver remains binding.

People v. Lavoie - filed Dec. 3, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 5724
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Criminal Law and Procedure
Welfare and Institutions Code Sec. 6603(j) plainly applies to sexually violent predatory discovery procedures and/or trial proceedings that were to occur after Jan. 1, 2016. The relatively minor distinctions in the level of access given to the State Department of State Hospitals medical records of persons committed as either a mentally disordered offender, a mentally disordered sex offender or an SVP appear to be rationally related to each statutory scheme. There is a distinction between a witness's "compelled" statements, which can be used for purposes of impeachment, and a witness's "involuntary" statements, which cannot be used for any purpose. A prosecutor's Brady discovery obligations logically apply in SVPA proceedings.

People v. McClinton - filed Nov. 30, 2018, Fourth District, Div. Three
Cite as 2018 S.O.S. 5729
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Criminal Law and Procedure
A jury would not interpret CALCRIM No. 362 to preclude an appropriate defense argument about consciousness of guilt.

People v. Burton - filed Dec. 4, 2018, Third District
Cite as 2018 S.O.S. 5741
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Employment Law
A public employee who has submitted application for retirement, and who is no longer actually working, is in a state of limbo until the application is approved by the retirement board. It is only with that approval that the employee can be considered "a retired member" for purposes of the County Employees Retirement Law. A public employee who was not yet officially retired when the Pension Reform Act took effect is subject to the forfeiture provision since he is still a public employee.

Wilmot v. Contra Costa County Employees' Retirement Association - filed Nov. 1, 2018, publication ordered Dec. 3, 2018, First District, Div. Two
Cite as 2018 S.O.S. 5745
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Employment Law
The "construction" language limiting the definition of "public works" in Labor Code Sec. 1720(a)(1) does not also limit the definition of "public works" in Sec. 1720(a)(2). Sec. 1720(a)(2) has independent effect and is not merely limited to "public works" as defined in Sec. 1720(a)(1). A worker's right to be free from employer control for a 30-minute meal period, and the right to be paid for time worked during that meal period, are distinct rights with distinct remedies. Remedy for an employer violation of the former right is the hour of premium pay provided under Sec. 226.7, but the remedy for the latter is payment of wages for time worked along with any applicable penalties for the failure to pay for time worked when the wages were due.

Kaanaana v. Barrett Business Services, Inc. - filed Nov. 30, 2018, Second District, Div. Eight
Cite as 2018 S.O.S. 5752
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Torts
Colleges and universities have a "duty" to use reasonable care to protect their students from foreseeable acts of violence in the classroom or during curricular activities. The standard of care governing a university's duty to protect its students from foreseeable acts of violence is the ordinary reasonable person standard.

The Regents of the University of California v. Superior Court (Rosen) - filed Dec. 3, 2018, Second District, Div. Seven
Cite as 2018 S.O.S. 5767
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