Constitutional Law

Flags often are raised as a form of government speech on government-owned property.  The government has the right to control its own speech including what flags it flies.  However, in this case, Boston allowed private groups to fly their flags from government-owned poles about 20 times a year.  Those flag-flying days were not government speech.  So on those days, the… Read More

As a Juul employee, Grove obtained stock options which he exercised to buy shares of Juul stock.  Grove sued Juul in California asserting a claim for the right to inspect Juul's books and records and also class and derivative claims against Juul's officers and directors.  The California court first stayed the inspection claim based on the forum selection clause in… Read More

Plaintiff did not allege an actionable equal protection claim based on a "class of one" discrimination.  To state such a claim, the plaintiff must allege facts showing it was treated differently from others who were similarly situated in all material respects.  Because they operate a materially different business model, at a significantly different price point, using new and different technology,… Read More

Austin's ordinance banning signs advertising goods or services not sold on the premises where the sign is located did not infringe sign owners' First Amendment rights.  Even though the ordinance required some examination of the contents of the advertising to determine whether it related to goods or services sold on the premises, the ordinance was facially content-neutral.  Austin's ’s on-/off-premises… Read More

Although procedural fairness does not prohibit the combination of the advocacy and adjudicatory functions within a single administrative agency, tasking the same individual with both roles violates the minimum constitutional standards of due process. The irreconcilable conflict between advocating for the agency on one hand, and being an impartial decisionmaker on the other, presents a particular combination of circumstances creating… Read More

This decision affirms a preliminary injunction issued against the California Attorney General and private parties preventing them from filing suit under Prop. 65 to require food manufacturers to give the standard Prop. 65 warning about acrylamide being a chemical supposedly "known" to cause cancer.  Under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the compelled speech (the required… Read More

A district court may approve a class action settlement that provides monetary relief only in the form of cy pres payments to non-parties, so long as distribution to class members is not possible and the recipients of the cy pres payments are appropriately chosen in light of the nature of the plaintiffs’ lawsuit, the objectives of the underlying statutes, and… Read More

While a trial court has broad discretion to allow an amendment to conform to proof after commencement of trial (CCP 576), the trial court lacks authority to make a sua sponte post-trial amendment of the complaint to allege a claim based on facts and theories not alleged in the complaint.  Doing so denies the defendant due process. Read More

AB 5 and its amended version Lab. Code 2778 et seq. does not violate the First or Fourteenth Amendments in its application to freelance journalists and others who supply creative content to newspapers, films and other media.  The regulation does not single out those engaged in speech for harsher treatment.  The exemption for some freelancers may not be as broad… Read More

On appeal from a prior order on an Anti-SLAPP motion, the Court of Appeal directed the trial court to grant the motion as to certain paragraphs of one cause of action.  The trial court then granted the defendant's motion for judgment on the pleadings, but with leave to amend.  Plaintiff's amended complaint again alleged some of the protected conduct which… Read More

An Anti-SLAPP motion to strike under CCP 425.16 may only be brought against causes of action seeking affirmative relief, not against defensive pleadings such as affirmative defenses.  Like any other affirmative defense, an offset is not subject to an Anti-SLAPP motion to strike. Read More

This decision affirms a district court order dismissing a defamation suit under Cal. Code Civ. Proc. 425.16.  Maddow was a TV personality and host of a program espousing liberal political views.  In one program she expressed glee over a report by another news organization that one of Herring's ultra-conservative commentators was being paid by the Kremlin for propaganda.  The speech… Read More

A statement of economic interests (Form 700) that California public officials must file is a "political work" for purposes of CCP 425.17(d)(2), and thus any claim arising from its creation, dissemination, exhibition, advertisement, or other similar promotion is not subject to CCP 425.17(b) which exempts from CCP 425.16 suits brought in the public interest.  This means that a claim based… Read More

The 2017 Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights Act violates the First Amendment rights of staff members of long term care facilities by imposing criminal penalties on them for repeatedly referring to a facility resident by other than the resident’s preferred name or pronoun when clearly informed of the name and pronoun.  (H&S Code… Read More

California's requirement that charitable organizations disclose to the attorney general Schedule B to their Form 990 filing with the IRS--a schedule that lists the organization's major donors--violates the First Amendment.  The disclosure causes a major intrusion on the donor's First Amendment right to freedom of association and is not justified by the public interest in preventing fraud or other wrongs… Read More

The Agricultural Labor Relations Board's access regulation (Cal. Code Regs. tit. 8, § 20900) gives agricultural labor unions a limited right to access to agricultural workers while on their employer's property for an hour before and after work and during the lunch hour for four months out of the year.  This decision holds that the regulation is a per se… Read More

The Federal Housing Finance Agency's structure is unconstitutional in providing that the President can remove the head of that agency only for cause.  However, that fact does not invalidate the acts taken by the FHFA's head or entitle shareholders of Fannie Mae and Freddie Mac to damages unless they can prove that the restriction on the President's power (as opposed… Read More

The dormant Commerce Clause does not prohibit California from applying its labor laws to airline employees who reside or are employed predominantly in California.  The airline's block time method of computing pay was similar to the pay scheme approved in Oman v. Delta Air Lines, Inc. (2020) 9 Cal.5th 762, and so did not offend California Labor Code guarantees of… Read More

The regional stay at home order banning public gatherings to avoid spread of COVID-19 which forbade restaurants from indoor or outdoor service (other than take-out or drive-thru service) did not unconstitutionally restrict the First Amendment-protected right of restaurants to present live nude adult entertainment since the health measure was applied to all restaurants regardless of whether they engaged in adult… Read More

This decision reverses a preliminary injunction against the county's implementation of COVID-19 health protocols that shut down restaurants, and particularly, those like plaintiff's restaurant that provided nude or semi-nude adult entertainment with their restaurant services.  The preliminary injunction violated due process in banning all restrictions on restaurants generally, when the complaint and preliminary injunction papers were limited to First Amendment… Read More