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  Wednesday, December 26, 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
Consumer Protection
Claims under California's Unfair Competition Law and Consumers Legal Remedies Act are to be analyzed in the same manner as any other claim, and the usual summary judgment rules apply. Under California law, the plaintiff has the burden of proving by a preponderance of evidence that a challenged advertisement is false or misleading under the UCL and CLRA. To defeat summary judgment, the plaintiff need only produce evidence of a genuine dispute of material fact that could satisfy the preponderance of the evidence burden at trial.

Sonner v. Schwabe North America - filed Dec. 26, 2018
Cite as 2018 S.O.S. 17-55261
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Securities
A shareholder did not set forth sufficient particularized facts to demonstrate demand futility where the shareholder was unable to show the corporation's board of directors were even aware of an alleged conspiracy, much less that they consciously disregarded or actively encouraged it. While a "smoking gun" is not necessary, something more than speculative, conclusory allegations is required. Allegations that the board members were in close proximity to officers who were involved with the conspiracy, and that board members discussed related issues at meetings, are not enough.

Towers v. Iger - filed Dec. 26, 2018
Cite as 2018 S.O.S. 17-15770
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Order
Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District - filed Dec. 26, 2018
Cite as 2018 S.O.S. 16-55425
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CALIFORNIA SUPREME COURT
Criminal Law and Procedure
A prosecutor's dismissal of a grand juror violates Penal Code Sec. 939.5. Only the grand jury foreperson may dismiss a grand juror. A defendant may seek dismissal of an indictment on the ground that the prosecutor violated Sec. 939.5 by filing a pretrial motion under Sec. 995(a)(1)(A). In order to prevail on such a motion, the defendant must show that the error reasonably might have had an adverse effect on the impartiality or independence of the grand jury.

Avitia v. Superior Court (People) - filed Dec. 24, 2018
Cite as 2018 S.O.S. 6149
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Environmental Law
When reviewing whether a discussion is sufficient to satisfy the California Environmental Quality Act, a court must be satisfied that an environmental impact report includes sufficient detail to enable those who did not participate in its preparation to understand and to consider meaningfully the issues the proposed project raises and that it makes a reasonable effort to substantively connect a project's air quality impacts to likely health consequences. A lead agency may leave open the possibility of employing better mitigation efforts consistent with improvements in technology without being deemed to have impermissibly deferred mitigation measures. Lead agency may adopt mitigation measures that do not reduce a project's adverse impacts to less than significant levels, so long as the agency can demonstrate in good faith that the measures will at least be partially effective at mitigating the project's impacts.

Sierra Club v. County of Fresno - filed Dec. 24, 2018
Cite as 2018 S.O.S. 6155
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CALIFORNIA COURT OF APPEAL
Civil Procedure
An employee's claims against his former employer were not subject to arbitration under the terms of his separation agreement since the separation agreement only covered disputes that occurred up to, and the effective date of, the agreement. An arbitration agreement requiring a worker to arbitrate any disputes arising from his employment with the company did not require the worker to arbitrate his claims that the company wrongfully diluted his shares in the company since the company's fiduciary duties to minority shareholders and alleged wrongs exist independently of any employment relationship between it and the worker.

Howard v. Goldbloom - filed Dec. 21, 2018, First District, Div. Four
Cite as 2018 S.O.S. 6164
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Criminal Law and Procedure
The doctrine of federal preemption does not bar a federal employee from being prosecuted under California law for any offense alleging fraud in obtaining federal workers' compensation benefits under the Federal Employment Compensation Act. Division 4 of the California Labor Code does not cover a federal employee.

People v. Hamilton - filed Dec. 21, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 6169
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Criminal Law and Procedure
The resentencing of a prior underlying felony conviction to a misdemeanor conviction negates an element required to support a Penal Code ß667.5 enhancement. Sec. 1170.18's exception to the rule of finality applies not only to individual counts, but to the entire case in which the judgment contains at least one felony conviction qualifying for reduction to a misdemeanor under the resentencing procedures of Proposition 47.

People v. Baldwin - filed Dec. 21, 2018, First District, Div. Five
Cite as 2018 S.O.S. 6175
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Government Law
The plain language of Vehicle Code Sec. 22851.1 (b), requires that proceeds from a sale of an impounded vehicle be used to pay unpaid parking tickets if funds remain after paying for towing and storage. A claim under 42 U.S.C. Sec. 1983 can be based on a violation of Sec. 22851.1(b).

Modacure v. B&B Vehicle Processing, Inc. - filed Dec. 21, 2018, First District, Div. Five
Cite as 2018 S.O.S. 6179
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Securities
A forum selection bylaw adopted by a Delaware corporation without stockholder consent is enforceable in California.

Drulias v. 1st Century Bancshares, Inc. - filed Dec. 21, 2018, Sixth District
Cite as 2018 S.O.S. 6181
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