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THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION

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JANUARY 2020 / $5

EARN MCLE CREDIT

Los Angeles lawyers Morin I. Jacob (right)and Paul D. Knothe provide an overviewof new legislation in California to insurereduction of sexual harassment occurrences in the workplacepage 20

GovernmentAgencyRegulatoryExemptionpage 26

Police ChildWelfare Checkspage 10

“Made Whole”Insurancepage 13

NavigatingStatementsof Decision

page 16

After #MeToo

20 After #MeTooBY MORIN I. JACOB AND PAUL D. KNOTHE

In the wake of the #metoo movement, the California Legislature has been swift to respond with a variety of new measures to ensure compliance withworkplace anti-harassment regulation

26 Zoned OutBY JUNE S. AILIN

State and other government agencies operating on the state’s behalf are often exempt from local real estate development regulationsPlus: Earn MCLE credit. MCLE Test No. 295 appears on page 29.

F EATU RE S

Los Angeles Lawyer

the magazine of

the Los Angeles County

Bar Association

January 2020

Volume 42, No. 10

COVER PHOTO: TOM KELLER

01.20

7 President's PageLACBA unveils new programs, and much moreBY RONALD F. BROT

9 Barristers TipsThe “Collaboration Generation” will make good family lawyersBY ALISON SPIRITO

10 Practice TipsThe role of law enforcement in childwelfare checks BY CARLY SANCHEZ AND DANIEL POLLACK

13 Practice TipsInsurance settlement under the MadeWhole DoctrineBY MICHAEL CHILDRESS AND NINELI SARKISSIAN

16 Practice TipsGuidance on navigating the statement of decision processBY ROBERT A. ROTH

32 By the BookThe Forensic Unreliability of the ShakenBaby SyndromeREVIEWED BY PAULA MITCHELL

36 Closing ArgumentWhat trial lawyers can learn aboutdemurrers from MoneyballBY HONORABLE RICHARD L. FRUIN

DE PARTM E NTS

LOS ANGELES LAWYER (ISSN 0162-2900) is publishedmonthly, except for a combined issue in July/August, by theLos Angeles County Bar Association, 1055 West 7th Street,Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Period -icals postage paid at Los Angeles, CA and additional mailingoffices. Annual subscription price of $14 included in theAssociation membership dues. Nonmember subscriptions:$38 annually; single copy price: $5 plus handling. Addresschanges must be submitted six weeks in advance of nextissue date. POSTMASTER: Address Service Requested. Sendaddress changes to Los Angeles Lawyer, P. O. Box 55020,Los Angeles CA 90055.

4 Los Angeles Lawyer January 2020

Visit us on the internet at www.lacba.org/lalawyerE-mail can be sent to [email protected] Los Angeles Lawyer on Twitter at@LALawyerMag

EDITORIAL BOARDChairTYNA ORREN

Articles CoordinatorCARMELA PAGAY

Articles CoordinatorTBD

SecretaryALEXUS BRIANNA PAYTON

Immediate Past ChairTHOMAS J. DALY

JERROLD ABELES (PAST CHAIR)

TOM K. ARA

MARA BERKE

TERENCE R. BOGA

SCOTT BOYER

NORMAN A. CHERNIN

CHAD C. COOMBS (PAST CHAIR)

KEITH A. CUSTIS

MICHAEL R. DILIBERTO

DANA MOON DORSETT

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MICHAEL A. GEIBELSON (PAST CHAIR)

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COMM’R DENNIS F. HERNANDEZ

HON. MARY THORNTON HOUSE

NIKKI MEHRPOO JACOBSON

DIANA HUGHES LEIDEN

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PAUL S. MARKS (PAST CHAIR)

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STAFF

Editor-in-ChiefSUSAN PETTIT

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Copyright © 2020 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is pro hibited. Printed by R. R. Donnelley, Liberty, Missouri. The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

Los Angeles Lawyer January 2020 5

LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATIONOF THE LOS ANGELES COUNTY BAR ASSOCIATION

1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553Telephone 213.627.2727 / www.lacba.org

LACBA EXECUTIVE COMMITTEE

PresidentRONALD F. BROT

President-ElectTAMILA C. JENSEN

Senior Vice PresidentBRADLEY S. PAULEY

Vice PresidentJO-ANN W. GRACE

Vice President Of Diversity, Inclusion & OutreachPHILIP H. LAM

Immediate Past PresidentBRIAN S. KABATECK

TreasurerKRISTIN ADRIAN

Assistant Vice PresidentTBD

Assistant Vice PresidentTBD

Barristers/Young Attorneys PresidentDIANA ARIELLE SANDERS

Barristers/Young Attorneys President-Elect SHARON GELBART

Executive Director/Secretary STANLEY S. BISSEY

BOARD OF TRUSTEES

KRISTIN ADRIANSARVENAZ BAHARJULIA L. BIRKELDAMON MICHAEL BROWNBRANT H. DVEIRINGARY A. FARWELLJOHN F. HARTIGANAMOS E. HARTSTONROY J. JIMENEZRICHARD L. KELLNEREVE LOPEZJEFFREY B. MARGULIESJEANNE L. NISHIMOTOANN PARKBENJAMIN G. SHATZED SUMMERSKENDRA THOMASKEVIN L. VICK

AFFILIATED BAR ASSOCIATIONS

ASSOCIATION OF SOUTHERN CALIFORNIA DEFENSE COUNSEL (ASCDC)

BEVERLY HILLS BAR ASSOCIATION (BHBA)

CENTURY CITY BAR ASSOCIATION (CCBA)

CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES (CAALA)

CULVER MARINA BAR ASSOCIATION (CMBA)

EASTERN BAR ASSOCIATION OF LOS ANGELES COUNTY

GLENDALE BAR ASSOCIATION (GBA)

IRANIAN AMERICAN LAWYERS ASSOCIATION

ITALIAN AMERICAN LAWYERS ASSOCIATION (IALA)

JAPANESE AMERICAN BAR ASSOCIATION (JABA)

JOHN M. LANGSTON BAR ASSOCIATION

LGBT BAR ASSOCIATION OF LOS ANGELES (LGBT BAR LA)

MEXICAN AMERICAN BAR ASSOCIATION (MABA)

PASADENA BAR ASSOCIATION (PBA)

SAN FERNANDO VALLEY BAR ASSOCIATION (SFVBA)

SANTA MONICA BAR ASSOCIATION (SMBA)

SOUTH BAY BAR ASSOCIATION (SBBA)

SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION (SCCLA)

WOMEN LAWYERS ASSOCIATION OF LOS ANGELES (WLALA)

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REAL ESTATE DISPUTE CONSULTING


Children, their vulnerability, and every community’sresponsibility to protect them from harm, are leit-motifs of this issue of Los Angeles Lawyer. Carly

Sanchez and Daniel Pollack discuss the constitutional andstatutory boundaries of the authority of police officers and

Tyna Thall Orren is the 2019-20 chair of the Los Angeles Lawyer Editorial Board. She is anappellate attorney and a partner in the firm of Orren & Orren in Pasadena, California.

social workers to enter homes to conduct child welfare checks when notifiedthat a child is at risk of abuse. They discuss the urgency for public authoritiesto carefully balance the policies limiting welfare-check authority against tragicconsequences that can follow when officers or social workers are too shyabout intervening.

Paula Mitchell reviews The Forensic Unreliability of the Shaken BabySyndrome by Randy Papetti. Papetti’s book scrutinizes an area in which lawenforcement and the courts may have been too eager to find and punish allegedchild abuse. Surprisingly, a not uncommon diagnosis of “shaken baby syndrome”or “abusive head trauma” is often based on assumptions, circular reasoning,and the mere absence of other explanations. The result is some parents sufferingthe loss of their child plus severe, and not infrequently unjustified, punishmentfor the child’s death.

The Mitchell review and the Sanchez-Pollack article are must reading forlawyers practicing in areas addressing child protection. They are highly worth-while for everyone concerned about society’s responsibilities to its most helplesscitizens.

Of special interest in the wake of the recent fires throughout the state is thearticle by Michael Childress and Nineli Sarkissian on how federal commonlaw Made Whole Doctrine may be applied in California where the question isunsettled as to who, insurer or insured, has priority to the funds disbursedwhen an insured suffers damages due to the tortious act of a third party

Four nitty-gritty practice-oriented articles round out the January issue. TheHonorable Richard Fruin presents statistics demonstrating the impact of recentlyenacted “meet and confer” requirements before the filing of demurrers, motionsto strike, and motions for judgment on the pleadings, which have reduced courtdelays and helped avoid costly pretrial filings and appearances.

At the other end of the litigation road, Robert Roth offers the clearest, mostcomprehensive guide I have ever seen to obtaining a statement of decision, thatindispensable item in any case that has any prospect of going up on appeal.

Focusing on transactional practice, June Ailin provides a fascinating guideto what happens when one governmental jurisdiction (e.g., a school district)wants to develop land it owns in ways impacted by land use ordinances ofanother entity within which the proposed development will be located. MorinJacob and Paul Knothe summarize new legislation (some already effective,some effective January 1, 2020) enacted in response to the #metoo movementand offer guidance for employers in avoiding liability under the new laws.

Finally, Los Angeles County Bar Association President Ron Brot’s President’sPage column introduces several innovative projects, including one that soundsespecially useful—the new Networking and Referral Program—and that willprovide far-from-DTLA folks enriched chances to form practice-enhancingand business-enhancing communities.

Like LACBA as a whole, we at Los Angeles Lawyer are here for you. n


HAPPY NEW YEAR. I wish all of you whoare a part of our Los Angeles County BarAssociation family a happy, healthy andprosperous new year.

Six months into my term as president,I believe more than ever that this is a greattime to be a member of LACBA and agreat time to serve as president.

Through the efforts of our practice sec-tions, committees, and staff, we have made

great strides in putting the county back in the County Bar. Activemembers, leaders, and future leaders have emerged from through-out Los Angeles County. By emphasizing LACBA programmingand projects both in downtown Los Angeles and in other partsof the county, we have reinstilled a sense of our bar communitythroughout our geographic boundaries from Lancaster to LongBeach and from Pomona to the Pacific.

We have embraced the opportunity to collaborate with ourcolleagues throughout the county to better serve the lawyers of Los Angeles County, those in need of legal services, and thegreater Los Angeles community. Diversity and inclusion con -tinue to be prominent on our agenda. The initial day-longLACBA Diversity and Inclusion Conference held at Loyola LawSchool was a huge success and set a high standard for the future.Soon after that, we engaged our affiliate and affinity bar leadersfrom throughout Los Angeles County to consolidate our effortsin order to better serve our member constituency and meet theneeds of those who require our help. The message for thatspirited conference was a call to action, and the result was aconsensus for immediate action with a clearly designated list ofpriorities.

Our bar association must grow in new directions. Aftermonths of hard work, the Membership Task Force submittedits report with a specific and robust implementation plan thatwill receive LACBA’s full support over the next six months. Wehave made a good beginning, but our work is far from done.We will continue to ask our members and future members whatthey want from LACBA and we will act decisively in responseto what we hear

To more fully represent the lawyers of Los Angeles County,we have also reached out to individuals and groups who arenot presently active in LACBA. For example, we have madeefforts to engage the lawyers who practice in government agenciesthroughout the county. I have personally met with officials inthe leadership of a number of these offices and will continue toexplore avenues for government lawyers to become a more sig-nificant part of our LACBA family.

Our financial challenges have been well publicized. We haveused the last six months to drill down on how we can achievefinancial stability and sustainability. With the help of our

Financial Task Force, an outside consultant, and aggressiveplanning by our executive director and his staff, we have charteda new course for financial responsibility. Our financial reportssince July 1 have been encouraging. By implementing the newplan and diligently adhering to its requirements, LACBA willachieve the objective of financial stability and sustainability.

Unfortunately, attaining new financial responsibility willcome at a cost. We value tradition and appreciate the contribu-tions made by those who have served those traditions so well,but difficult times require difficult decisions. With deep appre-ciation, we remain grateful to all who have helped LACBAsustain in the past, even if it is time to move forward in a newdirection for the future.

We are firmly dedicated to serving the needs of our members.The holidays sometimes present difficulties and temptationsthat often lead to unanticipated trouble and, in some instances,tragic consequences. Lawyers are not exempt. To this end,LACBA has established a Lawyer Assistance Program that offerslawyers a safe place to seek help for problems with alcohol,substance abuse, and mental or emotional issues. I am deeplygrateful to the members and staff who have turned my dreamof helping our members who may have these issues into a realityfor the benefit of those in need.

In a further effort to respond to what our members want,and in response to the overwhelming interest by newer law -yers and those who practice either solo or in a small firmsetting, LACBA is also unveiling a new Networking ReferralProgram. Our diverse practice areas are a rich resource andthis new referral program will take advantage of the countlessreferral opportunities arising from members within our arrayof practice sections and committees. These networking and re -ferral meetings will be held throughout the county, afford ingall members, regardless of location, a new and unique oppor-tunity to network and participate in referrals with other membersof the association.

There is more, much more, that LACBA now offers and willoffer to our members in the future. Our Strategic PlanningCommittee has made great strides and will build on the progresswe have made. The future is bright. As we continue to keep ourfocus on the benefits of membership throughout the county,there is much more to anticipate in the next six months. Thelimitations of this column do not allow me to explain more atthis time, but there is more. You are welcome to join in and seefor yourselves all that LACBA can offer to you. I know youwill not be disappointed. Don’t be left behind. Join us. n

president’s page BY RONALD F. BROT

LACBA Unveils New Programs, and Much More

The 2019-20 president of the Los Angeles County Bar Association, Ronald F.Brot is a founding partner and chairman of Brot Gross Fishbein and a notedfamily law attorney. He is a past chair of LACBA’s Trial Lawyers Section (nowthe Litigation Section) and Family Law Section, among others.


MILLENNIAL1 ATTORNEYS LOOKING to find their fit in the legalprofession should consider careers in family law, particularly inmediation and collaborative divorce, which are consensual disputeresolution processes aiming to keep divorces civil, private, andout of court. These processes are often more efficient, cost-effective, and supportive of families’ diverse legal, emotional,and financial needs than traditional litigation. They empowerfamilies to be autonomous decision makers and promote sus-tainable settlement agreements.

In collaborative cases, each spouse hires a collaborativelytrained attorney. Many couples also choose to hire a neutralforensic accountant, a child specialist, and/or mental health pro-fessionals to help resolve roadblocks to resolution. The hallmarkof the collaborative process is the “disqualification agreement,”signed by the clients and professionals committing to followcollaborative principles and acknowledging that if the case doesnot settle, all professionals are disqualified from participatingin litigated proceedings. Collaborative professionals work inteams to help families resolve their divorce issues.

In mediation, a neutral third party—the mediator—helpsspouses resolve divorce disputes. The mediator does not advocatefor either party, take positions, or make decisions but ratherfacilitates negotiations so spouses can make decisions on theirown terms.

Many values common to millennials make them naturally suitedto these consensual dispute resolution processes within the familylaw framework. Indeed, the “Collaboration Generation” title cap-tures the millennial spirit. Millennials overwhelmingly choose col-laboration over competition. In fact, 88 percent of millennials saythey prefer to work in a collaborative work culture rather than acompetitive one.2 Millennials have been trained to be teammatesfrom childhood. They grew up with team sports, clubs, groupprojects, play dates, and organized recreational activities.

Family law is a good practice area for many millennial attor-neys because, ultimately, millennials are motivated by meaning.Notably, 77 percent of millennials say their ability to excel in ajob is contingent upon deriving meaning from it.3 Subscribingto the concepts of “doing well by doing good”4 and “purposebeyond profit,5 millennials believe their work is the vehicle bywhich they will make the world a better place.

One of the most meaningful practice areas for attorneys, familylaw is rooted in relationships, children, love, loss, and goals forthe future. Its practitioners help people through some of the mostdifficult times of their lives. The opportunity to see tangible resultsfor clients will resonate with a lot of millennial lawyers since theyare highly concerned with the ethics and social responsibility ofthe products and services they consume. Divorcing people in themost dignified, cost-effective, and peaceful way possible is sociallyresponsible. While there is no sugarcoating divorce, spouses choos-ing a collaborative process or mediation generally come out

looking better and feeling better than their litigation counterparts.While mediation and the collaborative process allow spouses todiscuss their problems in private meetings, spouses in litigationair their dirty laundry in public court filings and hearings.

Millennials are also digital pioneers, evidenced by a study inwhich about 50 percent of them reported they would give uptheir sense of smell to keep one technology item.6 Litigation reg-ularly requires clients and their attorneys to be physically presentin court, but collaborative and mediation cases can often beresolved through use of tech tools like Zoom and Slack. Moreover,mediation and collaborative divorce offer attorneys more work-place flexibility. Office attendance is considered unnecessary by69 percent of millenials, and 89 percent prefer to choose whenand where they work rather than a 9 to 5 office job.7

Millennial attorneys should explore careers in family law con-sensual dispute resolution as it is a meaningful practice areafostering creative problem solving, congruent with millennial valuesand preferences. These processes will gain in popularity as increasingnumbers of millennial attorneys and clients enter the market. n

1 Millennials (often referred to as “Generation Y” or “echo boomers”) are peopleborn from 1981-1996. (Michael Dimock, Defining generations: Where Millennialsend and Generation Z begins, Pew Research Centers (Jan. 17, 2019), https://www.pewresearch.org.). They are the largest generational group in the U.S. labor forcetoday (Richard Fry, Millennials are the largest generation in the U.S. labor force,Pew Research Centers (Apr. 11, 2018), https://www.pewresearch.org.). They havealso been deemed the “Collaboration Generation.” (Collaboration Generation: TheRise of Millennials in the Workplace, Staples, https://www.staplesadvantage.co.uk/get-inspired/collaborative-working/collaboration-generation-the-rise-of-millennials-in-the-workplace (last viewed Dec. 5, 2019)).2 Rob Asghar, What Millennials Want in the Workplace (And Why You ShouldStart Giving It To Them), FORBES (Jan. 13, 2014), available at https://www.forbes.com/sites/robasghar/2014/01/13/what-millennials-want-in-the-workplace-and-why-you-should-start-giving-it-to-them/#2ec52d044c40.3 Shankar Ganapathy, Ten Millennial Personality Traits that HR Managers Can’tIgnore, MindTickle! (Sept. 1, 2016) https://www.mindtickle.com/blog/new-hire-onboarding/10-millennial-personality-traits-hr-managers-cant-ignore [hereinafterGanapathy].4 American Bar Association, A Millennial explains how law firms can attract andkeep his generation of lawyers (June 2018) https://www.americanbar.org/news/abanews/publications/youraba/2018/june-2018/a-millennial-explains-how-law-firms-can-attract-and-keep-his-gen.5 Merkur, Millennials and their quest for purpose beyond profit: Businesses at risk oflosing top talent, according to Deloitte’s global annual survey (Jan. 21, 2016) http://www.corporatenews.lu/en/archives-shortcut/archives/article/2016/01/millennials-and-their-quest-for-purpose-beyond-profit-businesses-at-risk-of-losing-top-talent-according-to-deloitte-s-global-annual-survey.6 MCCANN, THE TRUTH ABOUT YOUTH 6 (2011), http://www.mccannworldgroup.de/fileadmin/mrmmccann/mwg/pdf/McCann_Truth_About_Youth.pdf.7 Ganapathy, supra note 3.t

barristers tips BY ALISON SPIRITO

The “Collaboration Generation” Will Make Good Family Lawyers

Alison Spirito is a millenial family law attorney at the law firm of McGaughey& Spirito. She serves on the LACBA Barristers/Young Attorneys executivecommittee where she is also a liasion to LACBA’s Family Law Section.


ON JUNE 3, 2018, THE TABLOID NEWS website TMZ reported:“Janet Jackson calls cops to do welfare check…on 1-year-oldson.”1 The article stated: “Law enforcement sources tell us Janetmade the call to Malibu authorities late Saturday night, askingcops to check in on her son…who was with her estrangedhusband, Wissam Al Mana, at the Nobu Hotel. We’re told policedid, in fact, check in—but found no one to be in danger.”2

Welfare checks are not criminal investigations. Nationwide,child welfare checks are routinely conducted by police officerswho have reason to suspect that a child may be in imminentdanger of abuse and neglect or require accessto immediate medical aid. Some parents con-sent to allow law enforcement officers accessto their home and their children to conductwelfare checks. When parents refuse to pro-vide consent for child welfare checks, policeofficers must balance the protections affordedby the Fourth Amendment with child safety.

The Fourth Amendment of the U.S.Constitution guarantees “[t]he right of thepeople to be secure in their persons, houses,papers, and effects, against unreasonablesearches and seizures,” and provides that “no [w]arrants shallissue, but upon probable cause.” The Fourth Amendment appliesto the states through the Fourteenth Amendment.3 Naturally,warrant requirements are implicated only if a search or seizureoccurs.

The U.S. Supreme Court has upheld warrantless searches ofvehicles as reasonable if they are undertaken pursuant to a policeofficer’s “community caretaking functions, totally divorced fromthe detection, investigation, or acquisition of evidence relatingto the violation of a criminal statute.”4 This type of search iscommonly referred to as the “community caretaking doctrine.”However, the Court emphasized that there is a “constitutionaldifference between searches of, and seizures from houses andsimilar structures and from vehicles,” which “stems both fromthe ambulatory character of the latter and from the fact thatextensive, and often noncriminal contact with automobiles willbring local officials in ‘plain view’ of evidence, fruits, or instru-mentalities of a crime, or contraband.”5

Police welfare checks of residences without a warrant generallyare permissible if police officers have reasonable grounds tobelieve an inhabitant inside a residence is in imminent danger.6

Though the laws vary somewhat from state to state, many stateshave policies similar to the one codified in California’s PenalCode,7 which requires law enforcement agencies to develop andimplement written policies and procedures regarding best practicesfor conducting welfare checks when the inquiry is motivated byconcerns that the person may be a danger to him- or herself orothers.8 In order to make reasonable decisions, law enforcement

must have reliable information about what is going on inside ahome.

Police and Child Protective Services

Child protection often demands that law enforcement and socialservices work effectively together. It is not possible to providean exhaustive list of circumstances in which a welfare checkwould be required because each instance must be carefully eval-uated, with the law and applicable child protection standard ofcare as the principal considerations.

For example, if a child is being abused or neglected, it is oftennecessary to remove the child from that home immediately,without court intervention. Approximately 20 states give socialworkers authority to remove children without a court order, but46 states give such authority to police officers.9 Even when socialworkers can remove children without police assistance, moststill request law enforcement presence because parents are lesslikely to react violently if police are present.10

In cases in which the child does not appear to be in imminentdanger and there is no need for immediate removal, does it stillseem prudent to check on the child to make sure that the childis safe? Reports of child abuse are often vague because thereporting party may not know what is occurring in the house. Ifthe reporting party heard screaming, followed by a child crying,it may not be clear whether removal is appropriate. The socialworkers would seek to check on the child to ensure the child’ssafety. Parents can consent to allow social workers to enter theirhome and interview or inspect their children, though abusiveand neglectful parents often refuse to give such consent. In theseinstances, social workers do not have the authority to forceentry into homes to ensure that the children are receiving proper

practice tips BY CARLY SANCHEZ AND DANIEL POLLACK

The Role of Law Enforcement in Child Welfare Checks

Police welfare checks of residences without a warrant generally are

permissible if police officers have reasonable grounds to believe an

inhabitant inside a residence is in imminent danger.

Carly Sanchez is a personal injury attorney in the Law Offices of Booth &Koskoff in Torrance, California, where she focuses on representing childabuse victims in civil lawsuits. Daniel Pollack is a professor at YeshivaUniversity’s Wurzweiler School of Social Work in New York and a frequentexpert witness in child welfare cases. The case of Gail C. v. County of Riversidewas settled by Sanchez.

care. Thus, social workers turn to policefor help in obtaining a child welfare check,but the police may or may not be able togain access to the home and the childwithout a warrant.

Under the “community caretaking” ex -ception to the Fourth Amendment, policemay enter a home without a warrant ifthe officer has an objectively reasonablebelief that a person within a home is inimmediate need of aid.11 In determiningwhether an officer acted reasonably inentering a home under the communitycaretaking function, one must look to the“reasonable inferences he is entitled todraw from the facts in light of his experi-ence.”12 The scope of the exception oftendepends on the nature of the underlyingoffense.13

In varying circumstances, courts haveupheld warrantless entries by police toconduct child welfare checks. Becausethere is relatively little case law in Calif -ornia on this issue, the law in other statescan be helpful in ascertaining when suchentries have been found acceptable. InState v. Bittner, a South Dakota case, thedefendant stabbed officers who had en -tered his home after a call regardingdomestic violence.14 After the stabbing,witnesses told police officers at the scenethat a baby was inside the house.15 Of -ficers entered the home to search for thechild.16 While in the home, the officersfound and recovered the knife that hadbeen used to stab other police officers.17

The court held that it was reasonable forofficers to believe that a child may be inneed of emergency aid or in danger whentwo officers had been stabbed in the de -fendant’s home and that the warrantlessentry was justified.18 In in re Dawn O., aCal if ornia appellate case, a young childre ported to officers that she was lockedout of her home and indicated that shemay have siblings inside the home.19 Uponentry, officers found two small children,including an infant in a crib, in the homealone.20 Again, the court held that thewarrantless entry was reasonable in orderto ensure the safety of any children whomay have been within the home.21

Courts have upheld warrantless entriesin cases in which anonymous callers pro-vided detailed information regarding childabuse and a potential emergency situa-tion.22 Courts also have upheld warrant -less entries in cases in which there appearsto be a child inside in need of medicalattention.23 Warrantless searches are notpermitted in cases in which law enforce-ment has reason to know or suspect thata child is already deceased, as there is noemergency under those circumstances.24

The police officers’ decision whether toenter a home to check on a child with out awarrant is a difficult one to make. The of -ficers are required to use their best judg -ment on a case-by-case basis. It is thereforeincumbent upon the social workers whoreceive the referrals regarding po tentialabuse and neglect to make sure that theofficers are aware of the relevant facts thatmay help them determine whether a childis likely to be in danger in the home. Lawenforcement may be in danger, or, alterna-tively, subject to liability, if the social work-ers do not provide them with the informa-tion available prior to entering the home.

Delayed Access

The following case is instructive on theissue of police and social worker accessfor child welfare checks.25 Two-year-oldGail C. lived alone with her pregnantmother who suffered from severe mentalhealth disorders, including schizophreniaand bipolar disorder. Gail’s mother stop -ped taking her medications when shelearned that she was pregnant with hersecond child, and her mental health sub-sequently deteriorated significantly. Shetold several people that she planned togive birth at home by herself. The woman’sfamily grew concerned that Gail was notbeing properly cared for by her motherand called Child Protective Services repeat-edly. When social workers arrived at thehome to check on Gail, Gail’s motherrefused to let them inside and denied themaccess to Gail. On several occasions, thesocial workers contacted law enforcementand requested that officers perform a childwelfare check on Gail. The officers werealso unsuccessful in gaining access to thehome to check on Gail. Although Gail’sfamily had stated that they believed shewas being neglected, the police did nothave enough information to conclude thatshe was at risk of immediate harm or inneed of medical attention.

Thus, the child was left to fend for her -self for several months, during which timeher mother gave birth at home. Neigh borsalerted Child Protective Serv ices that themother no longer looked pregnant but saidthey could not hear either a new baby orGail in the home. By this time, ChildProtective Services had given up on contact -ing law enforcement for assistance, rea-soning that they had not been helpful inperforming child wel fare checks in thepast. Finally, four months after Gail’s familyfirst began calling Child Protective Services,a neighbor flagged down a passing policeofficer to report a horrible odor emanatingfrom the apartment where Gail residedwith her mother. The officer de termined

that the odor smelled like a dead bodyand, believing others in the home neededimmediate aid, forced entry into the homeand found Gail cuddling the body of herdeceased sibling, whom he described as“mummified.” The county paid more than$1 million to Gail for, among other things,its failure to continue contacting policeafter it knew that Gail’s mother was nolonger pregnant.

This case is just one tragic example ofwhat can happen when social workers failto share enough information with policeofficers who are assisting them with childwelfare checks. Had the social workersfully communicated the seriousness ofGail’s mother’s mental health problemsor called again once they knew Gail’smother had given birth, the officers mayhave felt justified in entering the homewithout a warrant, and Gail’s damagescould have been mitigated or preventedaltogether. It is critical for workers fromboth entities to share all information intheir possession so that social workersand law enforcement can work togetherto determine whether a warrantless entryis appropriate.

Qualified Immunity

If police determine that it is necessary toenter a home to perform a child welfarecheck under circumstances that do notactually warrant such an intrusion, qual-ified immunity may apply. Section 1983of the Civil Rights Act creates a privatecause of action against government of -ficials when they violate any constitution -al right.26 To prevail in a Section 1983cause of action, plaintiffs must prove thatthey were deprived of a constitutionalright, and that the person who deprivedthem of that right was acting under colorof law.27 Generally, qualified immunityaf fords police officers some leeway tomake reasonable mistakes in the courseof performing their duties. Qualified im -munity shields government officials fromstanding trial in Section 1983 lawsuitsunless their conduct has violated “clearlyestablished statutory or constitutionalrights of which a reasonable person wouldhave known.”28 To ascertain whether qual-ified immunity applies, the court mustdecide preliminarily “whether the facts,taken in the light most favor able to theplaintiff, demonstrate a constitutional vio-lation.”29 If so, the court must then deter-mine whether the right was clearly estab-lished.30 In other words, whether, in thespecific context of the case, “it wouldhave been clear to a reasonable officerthat his conduct was unlawful.”31

A police officer cannot be granted qual-


ified immunity for a demonstrably illegalsearch. The U.S. Supreme Court has heldthat a qualified immunity analysis “mustbe undertaken in light of the specific con-text of the case, not as a broad generalproposition.”32 In Mullenix v. Luna, theCourt wrote:

We have repeatedly told courts…not to define clearly established lawat a high level of generality.” Thedispositive question is “whether theviolative nature of particular conductis clearly established.” This inquiry“must be undertaken in light of thespecific context of the case, not asa broad general proposition.” Suchspecificity is especially important inthe Fourth Amendment context,where the Court has recognized that“[i]t is sometimes difficult for anofficer to determine how the relevantlegal doctrine…will apply to the fac-tual situation the officer confronts.33

Accordingly, whether a police officeris entitled to qualified immunity for allegedimproper conduct during a welfare checkis often a mixed question of fact and law.

Balancing the privacy interests providedin the Fourth Amendment and children’sprotection from abuse and neglect is chal-lenging and fraught with uncertainty. While

courts cannot condone law enforcementofficials routinely conducting warrantlesssearches in the name of preventing childabuse, the need to ensure that children aresafe in their homes is a paramount concern.Courts have tried to marry these two con-flicting needs with the community care-taking exception to the Fourth Amend -ment, and both social services and lawenforcement need nuanced instruction onexactly when child welfare checks are war-ranted to save children from extreme harm.Nonetheless, when reasonable mistakesare made, police officers are protectedfrom liability under the qualified immunitydoctrine.34. n

1 Staff, Janet Jackson calls cops to do welfare check…on 1-year-old son, TMZ (June 3, 2018), https://www.tmz.com/2018/06/03/janet-jackson-calls-police-welfare-check-1-year-old-son-eissa-estranged-husband-wissam.2 Id.3 Mapp v. Ohio, 367 U.S. 643 (1961).4 Cady v. Dombrowski, 413 U.S. 433, 441 (1973).5 Id. at 442.6 See Brigham City v. Stuart, 547 U.S. 398, 403-04(2006); Michigan v. Fisher, 558 U.S. 45 (2009)7 See, e.g., ARIZ. REV. STAT. TIT. 13. CRIM. CODE §13-3601N (“When a peace officer responds to a callalleging that domestic violence has been or may becommitted, the officer shall determine if a minor ispresent. If a minor is present, the peace officer shallconduct a child welfare check to determine if the childis safe and the child might be a victim of domestic

violence or child abuse.”)8 PEN. CODE §11106.4:

(a) Every law enforcement agency shall devel -op, adopt, and implement written policies andstandard protocols pertaining to the best man-ner to conduct a ‘welfare check,’ when theinquiry into the welfare or well-being of theperson is motivated by a concern that the person may be a danger to himself or herselfor to others. The policies shall encourage apeace officer, prior to conducting the welfarecheck and whenever possible and reasonable,to conduct a search of the Department of Jus tice Automated Firearms System via theCalif ornia Law Enforcement Telecom mun -ications System to determine whether the per-son is the registered owner of a firearm.(b) For purposes of this section, “reasonable”as used in subdivision (a) means that the of -ficer could conduct the firearm registry checkwithout undue burden on the execution ofthe officer’s other duties, that there are noexigent circumstances demanding immediateattention, and that the peace officer has accessto, or can reasonably ascertain, relevant iden-tifying information.

9 DONNA PENCE & CHARLES WILSON, THE ROLE OF

LAW ENFORCEMENT IN THE RESPONSE TO CHILD ABUSE

AND NEGLECT (1992), available at https://www.childwelfare.gov/pubPDFs/law.pdf.10 Id.11 Mincey v. Arizona, 437 U.S. 385, 392 (1978).12 People v. Ray, 21 Cal. 4th 464, 477 (1999).13 Welsh v. Wisconsin, 466 U.S. 740, 751 (1984).14 State v. Bittner, 359 N.W. 2d 121, 123 (S.D. 1984).15 Id. at 126.16 Id.17 Id.18 Id. at 126-27.19 In re Dawn O., 58 Cal. App. 3d 160, 162 (1976).20 Id.21 Id. at 163-64.22 See State v. Boggess, 115 Wis. 2d 443 (1983) (thereporting party provided the first and last names of thechildren and gave specific information regarding injuriesthat the children sustained); State v. Frink, 42 Ore.App. 171, 176-77 (Ct. App. 1979) (the reporting partystated that a child was being “shot up with drugs”).23 See Wooten v. State, 398 So. 2d 963 (Fla. Dist. Ct.App. 1981) (the reporting party witnessed a man shake, yell at, and strike a thirteen-month old babybefore taking the child into his apartment).24 People v. Draper, 196 Colo. 450 (1978).25 Gail C., a minor by and through her guardian adlitem, Marla C. Mahoney v. County of Riverside, etal. No. RIC1804569, (Riverside County Superior Ct.,2018).26 See Owens v. City of Independence, 445 U.S. 622,651-52 (1980).27 42 U.S.C. §1983.28 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).29 Curley v. Klem, 298 F. 3d 271, 277 (3d Cir. 2002)(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).30 Couden v. Duffy, 446 F. 3d 483, 492 (3d Cir. 2006).31 Wilson v. Layne, 526 U.S. 603, 615 (1999).32 Brosseau v. Haugen, 543 U.S. 194, 198 (2004). 33 Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (inter-nal citations omitted). 34 Qualified immunity does not apply to state lawcauses of action, e.g., CIV. CODE §52.1, which autho-rizes actions against those who interfere or attemptto interfere by threat, intimidation, or coercion withthe exercise of California or federal constitutional orstatutory rights. Such causes of action are generallysubject to the government claims statutes and stateimmunities, however.


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WHEN AN INSURED SUFFERS DAMAGES due to the tortiousacts of a third party and the insurer compensates the insured—wholly or partially—for those damages, who has priority to thefunds disbursed by the third party, the insured or the insurer?Like the answers to most legal questions—it depends. Althoughthe precise answer to this question is unsettled in California,the federal common law Made Whole Doctrine and contractuallanguage between the insured and insurer have created a roadmap through which one may be able to determine a concreteanswer. Case law also made a distinction between the remediesavailable for personal injury claims versusproperty damage claims. It is important tonote that in personal injury actions, theinsurer may not directly assert his or herclaims against the tortfeaser on its ownbehalf, whereas, the same rule does notapply to property damage claims.

Before delving into the legal analysis ofthe Made Whole Doctrine, it is crucial tounderstand the fact patterns in which this doctrine may be applied.The doctrine is applied in a scenario in which a tortious act by athird party has caused an insured to suffer damages. As such,prior to or in anticipation of litigation against the third party, theinsured is paid from his or her claim through the insurer, eitherwholly or partially, in accordance with the contract between theinsured and the insurer. When the third party is held liable fortortious acts either through a settlement agreement or a juryverdict, the doctrine is triggered. The question then arises as towhich of the two—the insured or insurer—has priority to bemade whole through the funds paid by the liable third party.

An example of such fact pattern is when an insured’s propertyis destroyed by a wild fire due to tortious acts of the electricalcompany in the area. The first step is for the insured to reportthis claim to his or her insurer and request to be compensatedfor the loss incurred while seeking damages from the liable thirdparty.

When such loss is incurred, there are generally two scenariosthat are presented depending on the type of loss. One scenariois the case in which the loss is a definite amount and determinedat the outset of the claim for which the insurer can make theinsured whole and subsequently pursue his or her subrogationright from the third party.

The second scenario may be the case in which the loss is notreadily calculated, or the loss may be ongoing. For example,the insured may have suffered property damage, ongoing smokedamage, and/or damages that resurface after a period for whichthe exact amount cannot be determined. In this second scenario,the insured will ideally be made whole by the third party. It isinevitable, however, that the insurer will pursue his or her rightof reimbursement or subrogation for funds already paid to the

insured, but the question remains as to when does this rightattach.

Made Whole Doctrine

Under federal common law Made Whole Doctrine, an insurancecompany may not subrogate a claim until the insured has beenfully compensated.1 Following this decision, the court in Chandlerv. State Farm Mutual Automobile Insurance Co. further reinforcedand recognized that California follows the Made Whole Doctrine.2

The Made Whole Doctrine is premised upon the notion that

as between the insurer and insured, it is reasonable to place theburden for any nonrecovery of damages on the insurer who hasbeen paid to the bear the loss and is better able to bear the loss.3

The Made Whole Doctrine also acts to safeguard an insured’spriority of compensation for his or her loss, such that when thetortfeasor has a fixed amount of assets, it is fair that the insuredhas the priority of rights to collect the full amount of compensationbefore the insurer may seek to collect from the tortfeasor.4 Theinsurer may enforce a subrogation claim—despite the insured’snot being fully compensated—only when the insurer has paid thepolicy limit.5

When an insurance company pays out a claim on a first-partyinsurance policy to its insured, the insurance company is subrogatedto the rights of its insured against any tortfeasor who is liable tothe insured for the insured’s damages. Subrogation is the insurer’sright to be put in the position of the insured, in order to recoverfrom third parties who are legally responsible to the insured fora loss paid by the insurer. Subrogation has its source in equityand arises by operation of law (legal or equitable subrogation).6

The Made Whole Doctrine dictates when the insurer’s rightto subrogation attaches. It limits the insurer’s reimbursement rightin situations in which the insured has not recovered his or her“entire debt.”7 The rule precludes an insurer from recovering anythird-party funds paid to the insured until the insured has “beenfully compensated for [his or] her injuries....”8 The general rule

practice tips BY MICHAEL CHILDRESS AND NINELI SARKISSIAN

Insurance Settlement Under the Made Whole Doctrine

In California, both the subrogation rights and reimbursement rights

of the insurance company fall within the rubric of subrogation.

Michael Childress is of counsel with Kabateck LLP. His practice focuseson protecting and enforcing the rights of the insured. Nineli Sarkissianis an associate at the firm whose practice includes personal injury,wrongful death, construction defect, class actions, bad faith insurancelitigation, business litigation, and property damage claims.

is that an insurer who pays a portion ofthe debt owed to the insured is not entitledto subrogation for that portion of the debtuntil the debt is fully discharged.9 Untilthe creditor has been made whole for hisor her loss, the subrogee may not enforcea claim based on the respective rights ofsubrogation.10

It should be noted that subrogation andreimbursement are used interchangeably.As explained by a leading commentatoron insurance law, there is a technical dif-ference between subrogation and reim-bursement.11 Subrogation refers to the rightof the insurance company to step into theshoes of the insured and assert the insured’srights against the third party.12 Reim -bursement refers to the right to receive pay-ment back of what has been expended bythe insurance company.13 That same com-mentator, however, acknowledges that thoseterms are often used interchangeably in thecases.14 In California, both the subrogationrights and reimbursement rights of theinsurance company fall within the rubricof subrogation. Thus, both of those rightsare limited by the Made Whole Doctrine.

Contract Language

Since only the parties’ expectations are atstake in contract law, the parties are freeto contract for specific types of remediesupon breach, and even when the partiesdo not bargain for a particular measure ofdamages, only the parties’ expectations aretaken into account when fashioning a rem-edy for breach.15 This means that partiesare sometimes not fully compensated forall harm caused by a breach, but, on theother hand, contract damages provide fora certain amount of predictability in com-mercial arrangements.16 It is certainly truethat “predictability about the cost of con-tractual relationships plays an importantrole in our commercial system.”17

The contract between the insured andthe insurer is another source that may pro-vide the answer to the question as to whohas priority over the funds. Priority overfunds can also arise out of the contractuallanguage of the insurance policy (conven-tional subrogation). The subrogation pro-visions of most insurance contracts typicallyare general and add nothing to the rightsof subrogation that arise as a matter oflaw.18 “It is a general equitable principleof insurance law that, absent an agreementto the contrary, an insurance company maynot enforce a right to subrogation until theinsured has been fully compensated for [hisor] her injuries, that is, has been madewhole.”19

In Travelers Indemnity Co. v. Inge bret -sen,20 the parties executed a specific sub-

rogation agreement that provided:In consideration of and to the extentof said payment the under sign -ed hereby assigns and trans fers tothe said Company all rights, claims,demands and interest which theundersigned may have against anyparty through the occurrence of suchloss and authorizes said Companyto sue, compromise or settle in thename of the undersigned or otherwiseall such claims and to execute andsign releases and acquittances in thename of the undersigned.

The appellate court concluded that theinsured’s assignment to the insurance com-pany of “all rights” “to the extent of pay-ment” gave the insurance company priorityto any recovery obtained by the insured.21

The more recent cases, however, re - quire that the contractual provision thatin tends to vitiate this rule must “clearlyand speci fically [give] the insurer a prior -ity out of proceeds from the tortfeasor re -gard less whether the insured was first madewhole.”22 Thus, there is authority regard -ing the language in an insurance policy thatgrants the insurance company “all rightsof recovery to the extent of its payment”ove rriding the common law Made WholeDoctrine.23 The precise language of such,however, must be present in the contract.Absent clear contractual language to thecontrary the proceeds first go to the insured.Cases have found contractual language tobe in favor of the insurance companies inthe past but recent cases require clear andspecific language so as a practice pointercounsel should carefully review the policylanguage especially older policies.

Property Damage vs. Personal Injury

As mentioned, subrogation places theinsurer in the shoes of his or her insuredto the extent of the payment. The courtshave made a distinction between an in -sured’s property damage claims and per-sonal injury claims. In personal injuryactions, the insurance company may notassert its subrogation claim directly againstthe third party tortfeasor on its own be -half.24 Moreover, the insurance companymay not seek to “gang-press” a policy-holder’s personal injury attorney into serviceas a collection agent by suing the attorneyto pay it any judgment or settlement pro-ceeds from the third party that passesthrough the attorney’s hands.25 Thus, topreserve its right of subrogation, the insur-ance company must either interplead itselfinto any action brought by the insuredagainst the third party tortfeasor or waitto seek reimbursement under the languageof its policy from its insured to the extent

that the insured recovers money from thethird party.26

The Made Whole Doctrine also playsa role in dictating the process of interplead-ing by the insurer. When the insurancecompany does not interplead itself into theunderlying action, the insurance company’srights to recover any payments received byits insured are limited.27 The doctrine states:

When an insurer does not participatein the insured’s action against a tort-feasor, despite knowledge of thataction, the insurer cannot recoverany funds obtained through settle-ment of the action unless the fullamount received exceeds the in sured’sactual loss. Furthermore, the insuredneed not account to the nonpartici-pating insurer “for more than thesurplus remaining in his hands, aftersatisfying his loss in full and his rea-sonable expenses incurred in therecovery.”28

Thus, when an insurer elects not to partic-ipate in the insured’s action against a tort-feasor, the insurer is entitled to subrogationonly after the insured has recouped his orher loss and some or all the associated lit-igation expenses incurred in the actionagainst the tortfeasor.29

Practice Pointers

In order to avoid confusion, misinterpre-tation and/or misrepresentation at the timeof settlement with the third-party tortfeaseror after a jury verdict against the tortfeaser,the insured and the insurer may elect tonegotiate how the recovery will be allocatedbetween the insured and the insurer. Indetermining who has priority to the funds,it is crucial to recognize that there are threedifferent options available for the practi-tioners to pursue.

The first option is for the insured andinsurer, at the initial claims stage, to nego-tiate as to who has priority and on whatbasis. Within this option, there are threedifferent possibilities the insured and theinsurer can each utilize. One is for the par-ties to adopt the terms of the Made WholeDoctrine and make the insured whole beforethe insurer can recover. The second possi-bility is for the insurer to recover his orher loss first, and before the insured. Thethird possible way through which the fundscan be divided is on a pro rata basis. Thislast way allows the parties to recover basedon their share of loss. It should be notedthat it is also important to negotiate theterms for payment of costs and attorneysfees in the underlying litigation.

The second option is that the insurer, aspart of the settlement, takes an assignmentof the subrogation right and is paid through


the associated assignment. Finally, the thirdoption is that the insured can, while theclaim payout with the insurer is still pend -ing, file his or her own lawsuit against thetortfeasor, reach a settlement, and recoverfrom that settlement for the loss.

Although case law has created a roadmap in determining who has priority tothe funds, it remains a matter that is tobe analyzed on case-by-case basis. This islargely because most contracts betweeninsurers and insureds contain general sub-rogation provisions that trigger the com-mon law Made Whole Doctrine. Thus,unless specifically stated in the originalcontract, the insured is to be made wholebefore the insurer is subrogated or reim-bursed the funds that the insurer paid forthe claim on behalf of the insured. Asnoted, one can elect to negotiate the termsof the contract to avoid any confusion ormisrepresentation. n

1 California Dep’t of Toxic Substances Control v. Cityof Chico, 297 F. Supp. 2d 1227, 1236 (E.D. Cal. 2004)(holding that a subrogation action was not ripe whenthe insurer made only a partial payment to the insured.)2 Chandler v. State Farm Mut. Auto. Ins. Co., 596 F.Supp. 2d 1314, 1318 (C.D. Cal. 2008).3 Bush v. Richardson, 484 S.E. 2d 490, 494 (W. Va.1997); Waukesha County v. Johnson, 320 N.W. 2d1, 3 (Wis. App. 1982); Garrity v. Rural Mut. Ins. Co.,253 N.W. 2d 512, 514 (Wis. 1977); 16 COUCH ON

INSURANCE §§223.136 (3d ed. 2000) [hereinafterCOUCH].4 Schonau v. Geico Gen’l Ins. Co., 903 So. 2d 285,287 (Fla. App. 2005); Garrity v. Rural Mut. Ins. Co.,253 N.W. 2d 512, 514 (Wis. 1977).5 Chandler, 596 F. Supp. 2d at 1320.6 Progressive W. Ins. Co. v. Superior Ct., 135 Cal.App. 4th 263, 272-73 (2005).7 21st Century Ins. Co. v. Superior Ct., 47 Cal. 4th511, 519 (2009).8 Id.9 Sapiano v. Williamsburg Nat’l Ins. Co., 28 Cal. App.4th 533, 536-37 (1994).10 Id.11 16 COUCH, supra note 3, §222:2, at 222-10 – 222-14.12 Id. at 222–11.13 Id.14 Id.15 Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7Cal. 4th 503, 517 (1994). 16 Id. at 515.17 Foley v. Interactive Data Corp., 47 Cal. 3d 654,683 (1988). 18 Progressive W. Ins. Co. v. Superior Ct., 135 Cal.App. 4th 263, 272-73 (2005).19 Id. at 274 (emphasis in original).20 Travelers Indem. Co. v. Ingebretsen, 38 Cal. App.3d 858, 865 (1974).21 Progressive, 135 Cal. App. 4th at 274, citingTravelers, 38 Cal. App. 3d at 865-66.22 Progressive, 135 Cal. App. 4th at 274.23 Id.24 Id. at 272-73.25 Id.26 Id.27 Id.28 Id.29 Id.



WHEN THE RESULT OF A BENCH TRIAL goes up on appeal, the mostinfluential factor on the appellate outcome is the trial court’sstatement of decision. Yet, otherwise sophisticated trial attorneysroutinely miss opportunities to use the statement of decisionprocess to influence decision-making, buttress victories, or isolateappealable errors. Properly obtaining a statement of decision is ameticulous process fraught with pitfalls. Appellate specialists fre-quently see both procedural and tactical errors in this phase ofthe trial court endgame. Given the complexities of the statementof decision process, appellate guidance on how to navigate thisintricate phase can put clients in the strongest position possiblefor an impending appeal.

Without a statement of decision, a reviewing appellate courtwill construe all factual conflicts in favor of the trial court’s judg-ment or appealable order and will additionally indulge any favor-able inference that can reasonably be derived from the record.1

The result can be a highly fictional version of the facts that doesnot reflect the trial court’s actual reasoning. Even findings andreasoning stated by the trial court on the record through verbalremarks at a hearing or in a written tentative decision are routinelyignored, unless confirmed in a formal statement of decision.2

When a statement of decision is not requested, appellate courtsignore the trial court’s tentative rationale for two reasons. First,there is a presumption that the trial court might theoreticallyhave changed its reasoning, but not the result, between the timeof a tentative decision and the time judgment is entered.3 Thesecond reason is out of a sense of fairness to the trial judge. Thestatement of decision process gives the trial court an opportunity,prior to any appeal, to address objections, ambiguities, and omis-sions that are brought to its attention, as well as to reconsiderthe merits in light of these factors.4

In contrast, when a statement of decision is issued, it is regardedas the trial court’s formal record of the factual and legal basis forits decision.5 Potential assumptions and inferences are disregardedas to reasoning and findings disclosed in the statement of decision.6

Instead, through its statement of decision the trial court providesformal findings “explaining the factual and legal basis for itsdecision as to each of the principal controverted issues.”7 Thetrial court decision is ordinarily held to those reasons on appeal.

Statement of Decision Availability

Under Code of Civil Procedure Section 632, a statement of deci -sion may be requested “upon the trial of a question of fact by thecourt.”8 While this standard could be broadly interpreted, caselaw has significantly narrowed the circumstances under which lit - igants are entitled to a statement of decision as a matter of right.9

Fundamentally, the case law distinguishes between a trial and theproceedings on a motion. In most instances, no statement ofdecision is required to support an order following a motion, evenif the motion involves an evidentiary hearing and is itself appeal-

able.10 However, it never hurts to request a statement of decisionbecause the trial court may issue one even when it is not required.11

When there has been no trial, some courts have held that astatement of decision may still be required on request, underlimited circumstances.12 The exception is based on a balancingof 1) the importance of the issues at stake and 2) whether effectiveappellate review can be accomplished without findings.13 Uponrequest, a statement of decision is also mandated by statute orcourt rule for certain proceedings short of a full trial.14 Certainstatutes similarly require a “statement of reasons,” which maybe similar, but not equivalent, to a statement of decision.15

Since a statement of decision is only required “upon the trialof a question of fact by the court,” some cases have held that nostatement of decision is required when there are no disputed facts,the legal posture of the case does not require deciding questionsof disputed fact, or only pure questions of law are presented.16

Tentative Decision

Under California Rules of Court, Rule 3.1590(a), the court isrequired to announce a nonbinding tentative decision before ren-dering a judgment or a statement of decision. Although a tentativedecision may purport to decide issues in the case, it is merely aninformal statement of the views of the trial judge and does notconstitute a statement of decision.17 The tentative decision willsometimes be used by appellate courts to support a judgment but“may never be used to impeach the order or judgment.”18

The duty for a trial court to issue a tentative decision priorto the formal statement of decision is mandatory.19 Nevertheless,in practice, trial courts sometimes ignore this requirement. Thisoccurs when submission is followed by the trial court’s issu anceof a document titled “statement of decision” before the time forrequesting a statement of decision has expired, or when it issuesa final order after submission, skipping the tentative decisionrequirement altogether.20 These practices improperly deprive therequesting party of the opportunity to make prop osals and objec-tions.21 Such procedural errors are potentially reversible if thelack of findings results in prejudice.22 While trial courts may beresistant to being admonished to do more work, counsel shouldbe forceful in insisting that the trial court properly adhere to therequired procedure. Otherwise, counsel risks waiving importantclients’ rights.

Procedural Stages

Many attorneys believe they have fulfilled their responsibilitiesby timely informing the trial court, without further elaboration,that they want a statement of decision. While a timely request is

practice tips BY ROBERT A. ROTH

Guidance on Navigating the Statement of Decision Process

Robert A. Roth practices with the California Appellate Law Group, with officesin Los Angeles and San Francisco. He is certified by the State Bar as anappellate specialist.

essential, the request is in fact only thebeginning of a multistage process. Takingaction during some or all of these stagesmay be essential to preserving clients’ rights.

Timely Request. The precise deadlinefor requesting a statement of decision isdetermined under two alternative stan-dards, depending on the length of the trial.If a trial is completed within one calendarday or takes less than eight hours over mul-tiple days, a statement of decision must berequested before submission.21 Other wise,the right to a statement of decision iswaived.24

For purposes of calculating whethereight hours have elapsed, within the mean-ing of Section 632, “the time of trial meansthe time that the court is in session, in opencourt, and also includes ordinary morningand afternoon recesses when the partiesremain at the courthouse.”25 In someinstances, time the trial court spent on thecase outside of the courtroom, such asreviewing transcripts or exhibits, might beconsidered in calculating the eight-hourrequirement, but this consideration shouldnot be relied on unless the record is veryclear as to how much time the court spenton such tasks.26 Trial is not complete until1) the court orders the matter submittedor 2) either the final paper (e.g., post-trialbrief) is filed or final arguments are heard,whichever is later.27

For trials of more than one calendarday and more than eight hours, a moreforgiving deadline applies. A request for astatement of decision must be made within10 days after the court announces its ten-tative decision.28 The ten-day period runsfrom service of a written tentative decision,and the deadline for filing the request isextended for mailing or other forms of ser-vice pursuant to Code of Civil ProcedureSection 1013.29 Failure to timely request astatement of decision within the 10-dayperiod (or as extended by service) is awaiver, and the daunting inferred findingsdoctrine will govern appellate review.30

Issuance of a final judgment or order aftera tentative decision is issued, but beforetime has expired to request a statement ofdecision, is error.31

Under unusual circumstances, appel -late courts have sometimes found limitedexceptions to the general rule that failureto timely request findings is a waiver.32

Time for filing a request for a statement of decision, as well as other statement-of-decision deadlines, can be extended by the trial court for good cause.33 Regardlessof these deadlines for requiring the trialcourt to issue a statement of decision, atrial court is authorized to issue a statementof decision sua sponte.34

Specifying Issues and Requesting Find -ings. Counsel not only must timely request

a statement of decision but also should spec-ify for which controverted issues the partyseeks a statement of decision.35 The requestcan include proposing additional findingsnot covered in the tentative decision.36

The trial court is not required to makeexpress findings of fact on every contro-verted factual issue in the case, so long asthe statement of decision sufficiently dis-poses of all basic issues in the case.37 Thestatement of decision must fairly disclosethe trial court’s determinations as to theultimate facts and material issues in thecase.38 All that a trial court is required todo is provide an explanation of the factualand legal basis for its decision on the prin-cipal controverted issues for which findingsare requested.39 That is, the trial court needonly make findings on ultimate facts, whichare relevant and essential to the judgmentand closely and directly related to court’sdetermination of the ultimate issues in thecase.40 An “ultimate fact,” on which find-ings must be made, as distinguished froma mere “evidentiary fact” as to which find-ings need not be made, is “such as an ele-ment of a claim or defense, without whichthe claim or defense must fail.”41 A detaileddiscussion of specific evidentiary facts isordinarily not required.42

Given these competing standards, coun-sel must find a middle ground when spec-ifying issues and requesting findings. Cases


commonly disapprove of “interrogatingthe judge” through overly long, burdensomerequests for a statement of decision andsometimes allow trial courts to ignorerequested findings presented in this man -ner.43 On the other hand, failure to ask forfindings on a controverted issue may resultin a waiver. While no precise rule can bestated for striking the proper balance, cer-tain guidelines are helpful.

The request for a statement of decisionshould be crafted with an eye toward thethree basic sources of appellate reversals:errors of fact, errors of law, and errors ofprocess.44 These analytical points are usefulin guiding counsel’s approach to the state-ment of decision process, regardless ofwhether a client is attacking the tentativedecision or seeking to safeguard the tenta-tive result.

Errors of fact refer to more than simply“getting the facts wrong.” They also includequestions of whether the facts are suffi-ciently proven, are grounded in admissibleevidence, support all elements of a primafacie case, and rise to the level of “sub-stantial evidence” on all essential factors.Errors of law can include whether theproper substantive legal standard has beenselected, whether that test has been correctlyconstrued, and whether the governing prin-ciples have been appropriately applied.Errors of process involve procedural irreg-ularities that undermine the fairness of theproceeding. Keeping such principles inmind, counsel should craft the request forstatement of decision with a focus onaddressing the controverted and pivotalissues of their case and not get boggeddown on tangential issues or venting dis-satisfaction regarding the trial court’s weigh-ing of evidence.

Proposals for Content. Within ten daysof a request for a statement of decision,any party can submit proposed findings.45

The request for findings and the proposedfindings can be combined in a single doc-ument. Some cases suggest that even alosing party, under a tentative decision,should submit proposed favorable findingson important issues, especially when find-ings on specific evidentiary facts are sought,to facilitate appellate review of whetherthose proposed findings should have beenaccepted or rejected.46

Proposals for the content of the state-ment of decision can be an opportunity fora prevailing party to safeguard a victoryby addressing omissions and ambiguitiesin the tentative decision and perhaps gentlyprodding the trial court to modify its rea-soning to a more defensible posture.47 Aproposed statement of decision can save ajudge significant effort, and many courts

will adopt counsel’s proposed statement ofdecision in its entirety, if it reasonablyreflects the tentative decision’s reasoningprocess. Under California Rules of Court,Rule 3.1590(f), the trial court is authorizedto assign preparation of the statement ofdecision to prevailing counsel, further elab-orated below. Even when it is not solicited,many trial courts will sign a draft promptlysubmitted by prevailing counsel before thecourt begins undertaking the burden ofpreparing the statement of decision itself.

Prepar ing Initial Statement of Decision.Under California Rules of Court, Rule3.1590(c)(4), the trial court may providethat its tentative decision will automaticallybecome a statement of decision absent arequest for additional findings. Alternative -ly, the trial court may designate that a state-ment of decision be prepared either by thecourt or by a party.48 For trials taking lessthan one day or eight hours, the trial courtis authorized to make its statement of deci-sion orally; otherwise it must be in writing.49

The practice of designating the trial tran-script as the statement of decision in non-short cause matters has been disapprovedand construed as an improper refusal toissue a statement of decision.50

Objections. Once a statement of deci -sion has been prepared, a party has theopportunity to file objections and seek clar-ification of omissions or ambiguities in thedocument.51 Ambiguities or omissions canalso be addressed by certain post-trialmotions, which have longer deadlines thana request for statement of decision.52 Failureto bring omissions and ambiguities in aproposed statement of decision to the trialcourt’s attention may result in waiver ofany resulting error and allows the appellatecourt to infer necessary findings if supportedby the record.53 A party’s proposed state-ment of decision is not considered equiva-lent to objections and can be deemed awaiver if not accompanied by specific objec-tions to the draft statement of decision.54

While failure to object may result inwaiver and appellate affirmance, the trialcourt’s failure to provide appropriate clar-ifications, when properly requested, canalso require reversal.55 The objection pro -cess allows losing litigants to force the trialcourt to explain its rulings in a meaning -ful way and facilitates effective appellatereview.56 Trial courts are authorized toorder a hearing on objections.57 Morecommonly, trial courts will rule on objec-tions without a hearing.

Common Pitfalls

The applicable rules appear to con tem platethat a separate judgment, in ad di tion tothe statement of decision, or a combined

“statement of decision and judg ment” beprepared.58 (The term “judgment” is gen-erally deemed to in clude ap pealable or -ders.59) Requiring en try of an express judg-ment or order provides clarity regardingwhen the period for filing notice of appealis triggered, and it is firmly establishedthat a state ment of decision itself is notnormally considered to be appealable ortrigger appeal deadlines.60

However, trial counsel should be awarethat a statement of decision will sometimesbe deemed a final, appealable order whenno formal judgment or order has beenentered after the statement of decision.61

There are unpublished cases when appealshave been dismissed as untimely by treatinga statement of decision as the final order.To eliminate any ambiguity regarding whenappellate deadlines start running, trial coun-sel should always be sure that a formalorder or judgment is prepared and enteredrelatively soon after the statement of deci-sion is finalized.62

The statement of decision is an essentialtool for safeguarding effective appellatereview of bench trials. Counsel should beattuned to the many junctures at whichthey have the ability to influence the state-ment of decision process and consider con-sulting with experienced appellate counselbefore–not after–this pivotal document iscreated. The statement of decision processis complex and sometimes confoundinglycomplicated but crucial to effective review.For appellate purposes, a statement of deci-sion may only be as good as the processthat goes into it, so it is best to approachthe process with an eye toward the dynam-ics expected in a prospective appeal. n

1 Orange County Water Dist. v. Alcoa Global Fasteners,Inc., 12 Cal. App. 5th 252, 311 (2017).2 See, e.g., In re Marriage of Boblitt, 223 Cal. App. 4th1004, 1029 (2014); FLIR Sys., Inc. v. Parrish, 174 Cal.App. 4th 1270, 1284 (2009).3 FLIR Sys., 174 Cal. App. 4th at 1284.4 In re Marriage of Boblitt, 223 Cal. App. 4th at 1029;Shaw v. County of Santa Cruz, 170 Cal. App. 4th 229,268 (2008).5 A.G. v. C.S., 246 Cal. App. 4th 1269, 1282-83 (2016).6 See In re Marriage of Fong, 193 Cal. App. 4th 278,294 (2011).7 CIV. PROC. CODE §632; A.G. v. C.S., 246 Cal. App.4th at 1282-1283; In re Marriage of Fong, 193 Cal.App. 4th at 293-94; Morris v. Thogmartin, 29 Cal.App. 3d 922, 927-930 (1973).8 CIV. PROC. CODE §632.9 Maria P. v. Riles, 43 Cal. 3d 1281, 1294 (1987); Fairv. Bakhtiari, 195 Cal. App.4 th 1135, 1148 (2011).10 Hjelm v. Prometheus Real Estate Group, Inc., 3 Cal.App. 5th 1155, 1178 (2016); In re Marriage of Fong,193 Cal. App. 4th at 293-94.11 LAOSD Asbestos Cases, 25 Cal. App. 5th 1116,1121 (2018); In re Marriage of Feldman, 153 Cal.App. 4th 1470, 1497 (2007); Gruendl v. Oewel P’ship,Inc., 55 Cal. App. 4th 654, 660 (1997); Khan v. SuperiorCt., 204 Cal. App. 3d 1168, 1173 n.4 (1988).


12 Gruendl, 55 Cal. App. 4th at 659-61 (amendment ofjudgment under estoppel or alter ego theory). See alsoMetis Dev. LLC v. Bohacek, 200 Cal. App. 4th 679,688 (2011) (motion to compel arbitration).13 Id.14 See, e.g., CAL. R. OF CT. 3.1591, 4.575; CIV. PROC.CODE §§631.8, 663, 1291; FAM. CODE §§2127, 3654;PROB. CODE §962.15 See, e.g., CIV. PROC. CODE §§ 437c(g), 639(d)(1);FAM. CODE §§3087, 4056, 4332; PEN. CODE §1272.1.16 Estate of Garrett, 159 Cal. App. 4th 831, 839-40(2008); Kroupa v. Sunrise Ford, 77 Cal. App. 4th835, 842 (1999).17 Shaw v. County of Santa Cruz, 170 Cal. App. 4th229, 268 (2008).18 Id.; Burbank-Glendale-Pasadena Airport Auth. v.Hensler, 233 Cal. App. 3d 577, 591 (1991).19 Armstrong v. Picquelle, 157 Cal. App. 3d 122, 127(1984).20 See, e.g., Miramar Hotel Corp. v. Frank B. Hall &Co. of California, 163 Cal. App. 3d 1126, 1129(1985).21 Id.; Whittington v. McKinney, 234 Cal. App. 3d123, 127 (1991).22 F.P. v. Monier, 3 Cal. 5th 1099, 1109, 1116 (2017).23 CIV. PROC. CODE §632.24 Cima-Sorci v. Sorci, 17 Cal. App. 5th 875, 891(2017); Gorman v. Tassajara Dev. Corp., 178 Cal.App. 4th 44, 61-62 (2009).25 In re Marriage of Gray, 103 Cal. App. 4th 974,980 (2002).26 Gorman, 178 Cal. App. 4th at 63; Kearl v. Bd. ofMed. Quality Assurance, 189 Cal. App. 3d 1040,1051 (1986).27 CAL. R. OF CT. 2.900; Social Serv. Union v. Countyof Monterey, 208 Cal. App. 3d 676, 680 (1989).

28 CIV. PROC. CODE §632.29 Staten v. Heale, 57 Cal. App. 4th 1084, 1087 n. 4(1997); In re Marriage of McDole, 176 Cal. App. 3d214, 219 (1985).30 In re Marriage of Arceneaux, 51 Cal. 3d 1130,1133-34 (1990); A.G. v. C.S., 246 Cal. App. 4th1269, 1281 (2016).31 F.P. v. Monier, 3 Cal. 5th 1099, 1116 (2017).32 See, e.g., Saks v. Charity Mission Baptist Church,90 Cal. App. 4th 1116, 1149 (2001); In re Marriageof Ramer, 187 Cal. App. 3d 263, 271 (1986).33 CAL. R. OF CT. 3.1590(m).34 Ochoa v. Anaheim City School Dist., 11 Cal. App.5th 209, 235 (2017); In re Marriage of Rising, 76Cal. App. 4th 472, 476 n.7 (1999).35 CIV. PROC. CODE §632.36 CAL. R. OF CT. 3.1590(d), (e).37 Ermoian v. Desert Hosp., 152 Cal. App. 4th 475,500 (2007).38 Jackpot Harvesting, Inc. v. Applied Underwriters,Inc., 33 Cal. App. 5th 719, 739 (2019); Ribakoff v.City of Long Beach, 27 Cal. App. 5th 150, 163 (2018).39 Ribakoff, 27 Cal. App. 5th at 163.40 R. E. Folcka Constr., Inc. v. Medallion Home LoanCo., 191 Cal. App. 3d 50, 53 (1987); Kuffel v. SeasideOil Co., 69 Cal. App. 3d 555, 565 (1977).41 People v. ConAgra Grocery Prods. Co., 17 Cal.App. 5th 51, 82 (2017).42 Thompson v. Asimos, 6 Cal. App. 5th 970, 983(2016).43 Yield Dynamics, Inc. v. TEA Sys. Corp., 154 Cal.App. 4th 547, 558 (2007) (32 questions); People v.Casa Blanca Convalescent Homes, Inc., 159 Cal. App.3d 509, 525 (1984) (75 questions).44 Callaghan’s Appellate Advocacy Manual, §8:02(1995).

45 CAL. R. OF CT. 3.1590 (c)(4), (e).46 In re Marriage of Falcone & Fyke, 203 Cal. App.4th 964, 982 (2012); McAdams v. McElroy, 62 Cal.App. 3d 985, 993-94 (1976).47 Khan v. Superior Ct., 204 Cal. App.3d 1168, 1173n.4 (1988) (even when the court issues an oral state-ment of decision in a one-day matter, counsel cansubmit a written proposed statement of decision thatfills in gaps, which upon signing renders the oral rea-soning a non-binding tentative decision).48 CAL. R. OF CT. 3.1590(c)(3).49 CIV. PROC. CODE §632.50 Whittington v. McKinney, 234 Cal. App. 3d 123,129 (1991).51 CAL. R. OF CT. 3.1590(g); CIV. PROC. CODE §634.52 CIV. PROC. CODE §634.53 In re Marriage of Arceneaux, 51 Cal. 3d 1130,1133-1134 (1990).54 Bay World Trading, Ltd. v. Nebraska Beef, Inc.,101 Cal. App. 4th 135, 140 (2002).55 Schwan v. Permann, 28 Cal. App. 5th 678, 696(2018); Central Valley Gen. Hosp. v. Smith, 162 Cal.App. 4th 501, 531-532 (2008); In re Marriage ofWeinstein, 4 Cal. App. 4th 555, 571 (1991).56 Estate of Reed, 16 Cal. App. 5th 1122, 1128 (2017).57 CAL. R. OF CT. 3.1590(k).58 CAL. R. OF CT. 3.1590(f).59 CAL. R. OF CT. 8.104(e).60 Alan v. American Honda Motor Co., Inc., 40 Cal.4th 894, 901 (2007); In re Marriage of Campi, 212Cal. App. 4th 1565, 1571-72 (2013).61 Alan v. American Honda Motor Co., Inc., 40 Cal.4th 894, 901 (2007); Hernandez v. Rancho SantiagoCmty. Coll. Dist., 22 Cal. App. 5th 1187, 1192 (2018);Estate of Reed, 16 Cal. App. 5th 1122, 1126 (2017).62 See CAL. R. OF CT. 3.1590(f), (l).



HA

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In 2006, activist Tarana Burke es -tablished the foundations of the#metoo movement by writing ofher experience in which she feltthat she had failed a young girl who

report ed a sexual assault to her. Burkedid not feel prepared to assist the girl and sent her to see another counselor.Burke regretted not telling the girl, “metoo.”1 Then, 11 years later, in the wakeof num erous stories of sexual misconductby disgraced Hollywood mogul HarveyWein stein, actress Alyssa Milano usedher platform on Twitter and revived thehashtag #me too to bring attention to themovement Burke had started, and themovement went viral.2 Stories of sexualmis conduct in the workplace dominatedthe news in a way they had not since the1990s.

The EEOC issued its first guidelinesdefining sexual harassment, in two types,in 1980. One type, commonly known asquid pro quo harassment, involves unwel-come sexual advances, requests for sexualfavors, or verbal or physical conduct of asexual nature in exchange for economicbenefit. The second type, hostile workenvironment, concerns when harassingconduct “has the purpose or effect ofunreasonably interfering with an individ-ual’s work performance or creating anintimidating, hostile, or offensive workingenvironment.”3

The U.S. Supreme Court first acknowl-edged that Title VII of the Civil RightsAct of 1964 prohibits these types of sex -ual harassment in the 1986 case MeritorSav ings Bank, FSB, v. Vinson.4 The courtfur ther held that to be actionable, hos -

tile work environment sexual harassmentmust be sufficiently severe or pervasiveas to alter the conditions of the victim’semployment and create an abusive work-ing environment.

Coinciding with the #metoo move-ment, the EEOC saw an increase incharges alleging sex-based harassmentfrom 12,428 in fiscal year 2017 to 13,055in fiscal year 2018.5 The California De -par tment of Fair Employment and Hous -ing reported that it received 683 com-plaints and issued an additional 3,698right-to-sue letters regarding sexual har -assment in 2017.6

In 2018, the California Legislaturetook action to respond to the renewed ur -gency of the sexual harassment problemin the #metoo era, passing several newstatutes that took effect on January 1,

Morin I. Jacob is the managing partner of the San Francisco office of Liebert Cassidy Whitmore, and Paul D. Knothe is an associate in the firm’s LosAngeles Office. Both advise and represent employers in harassment, discrimination, and retaliation matters.

AFTER#MeTooReducing sexual harassment on the job demands strongpolicies, diligent training, and accountability

by Morin I. Jacob and Paul D. Knothe

2019 and 2020.Senate Bill 1300 (SB 1300), which

passed by relatively slim margins of 41 to33 in the assembly and 25 to 10 in thesenate, made several changes to the FairEmployment and Housing Act (FEHA)that will impact the resolution of sex ualharassment cases. Government Code Sec -tion 12923, created by SB 1300, set forthfive legislative declarations regarding itsintent as to the application of the state’sharassment laws.

First, citing Justice Ruth Bader Gins -burg’s concurrence in Harris v. Forklift

Systems, the legislature declared:[T]he plaintiff need not prove thathis or her tangible productivity hasdeclined as a result of the harassment.It suffices to prove that a reasonableperson subjected to the discrimina-tory conduct would find, as the plain-tiff did, that the harassment so alteredworking conditions as to make itmore difficult to do the job.”7

Some commentators interpret this pro-vision as lowering the bar for what willqualify as actionable harassment.

Second, Section 12923 clarifies that asingle incident can create a triable issueregarding the existence of a hostile workenvironment if the harassing conduct hasunreasonably interfered with the plaintiff’swork environment or created an intimi-dating, hostile, or offensive working envi-ronment.8 The legislature condemned theruling in Brooks v. City of San Mateo, inwhich former Judge Alex Kozinski inex-plicably found that a forcible touching ofthe plaintiff’s breast did not rise to thelevel of “severe or pervasive.”9

Third, section 12923 gives legisla tiveaffirmation to the California SupremeCourt’s decision in Reid v. Google, re -jecting the “stray remarks” doctrine and holding that the existence of a hostilework environment depends upon the to -tal ity of the circumstances, and that a dis-criminatory remark, even if not madedirectly in the context of an employmentdecision or uttered by a non-decision-maker, may be relevant, circumstantial

evidence of discrimination.10

Fourth, the legislature declared that thestandard for sexual harassment should notvary by the type of workplace and the factthat a particular occupation may have hada characteristically greater frequency ofsexually related commentary in the pastis irrelevant, i.e., it is no defense to saythat your industry has always allowed“locker room talk.”11 This subdivisiondoes, however, permit courts to considerthe nature of the workplace when engagingin or witnessing prurient conduct, andcommentary is integral to the performance

of the job duties (e.g., the adult entertain-ment industry.) The legislature declaredits disapproval of any language to the con-trary in Kelley v. Conco Companies.12

Finally, the legislature expressed its viewin Section 12923 that “[h]arassment casesare rarely appropriate for disposition onsummary judgment.”13 In so doing, thelegislature cited with approval the dictumin Nazir v. United Airlines, Inc. that hostileworking environment cases involve issues“not determinable on paper.”14 Given thisnew provision, employers’ counsel shouldspeak candidly with their clients as towhether a motion for summary judgment(MSJ) is worth the expense in any givenharassment case. For their part, employees’attorneys would be well advised to citethis language in nearly all MSJ oppositionmemoranda. As before the #metoo move-ment went viral, the three main tools forreducing incidents of sexual harassmentin the workplace are policy, training, andaccountability.

Employer Requirements

Employers are required to have a policyprohibiting sexual harassment.15 Depart -ment of Fair Employment and Housingregulations require that employers developa written policy that, inter alia, prohibitsemployees and nonemployees from dis-criminating, harassing, or retaliating basedon any protected status, and protects appli-cants, volunteers, independent contractors,and employees from being subjected toprohibited conduct.16

Employers are also required to post theDepartment of Fair Employment and Hous -ing’s poster on discrimination in employ-ment, which includes information on theillegality of sexual harassment, and a posterdeveloped by the Department regardingtransgender rights in a prominent andaccessible location in the workplace.17

Employers should remember that thelaw establishes a floor with respect toacceptable conduct in the workplace—multiple cases make clear that the law doesnot create a “civility code” for the employ-ment relationship.18 However, employers

can and should require more than the bareminimum from their employees. If anemployer’s policy requires employees totreat each other with courtesy, respect, or,yes, “civility,” this could provide a solidground for discipline up to and includingtermination of an employee whose boorishor sexist conduct may not yet have risento the level of “severe or pervasive” in theeyes of the courts, before it escalates.

Should employers institute policies thatprohibit employees from engaging in dat -ing or sexual relationships with each other? Given the amount of time the mod-ern economy requires people to spend atwork, prohibition simply is not realisticin many cases. However, such relation -ships between peers do carry some risk ofharassment liability, as behavior that wasonce welcome can become unwelcome.Em ployers should do their best to remainaware of these relationships and considerwhether it is necessary to put romanticpartners in separate work groups. However,there is greater potential for exposure whenthere is a power differential between theparticipants in a sexual relationship. In avery high-profile example of the risks ofsuch relationships, McDonald’s replacedits CEO, Steve Easterbrook, because of aconsensual relationship with a subordinatein violation of company policy.19

It is mandatory under California statelaw for employers with five or more em -ployees to provide sexual harassment train -ing that covers 14 designated topics. Thistraining must include questions that assess


While the #metoo movement has shined a newly bright

light on an old problem and while some of the legal particulars,

especially with respect to litigation and settlement, have

been tweaked, the fundamentals are essentially the same.

learning, skill-building activities to assessunderstanding and application of content,and hypothetical scenarios about harass-ment with discussion questions.20

New statute SB 1343, passed unani-mously by both the senate and the assem-bly, amends Government Code sections12950 and 12950.1 to expand these train-ing requirements. These sections previouslyrequired employers with 50 or more em -ployees to provide at least two hours ofsexual harassment training to all supervi-sory employees within six months ofbecoming supervisors, and once every twoyears. Under the amended law, employerswho employ five or more employees,including temporary or seasonal employees,must provide at least two hours of sexualharassment training to all supervisoryemployees and at least one hour of sexualharassment training to all nonsupervisoryemployees by January 1, 2020, and onceevery two years thereafter. The amendedstatue also requires the Department of FairEmployment and Housing to develop orobtain one-hour and two-hour online train-ing courses on the prevention of sexualharassment in the workplace and to makethese courses available on the departmentalwebsite. Clean-up legislation pushed backthe onset of these obligations until calendaryear 2020.21

New Government Code Section 12950.2,passed as part of SB 1300, provides thatemployers “may also” provide by standerintervention training that includes infor-mation and guidance on how to enablebystanders to recognize potentially prob-lematic behaviors and to motivate by -standers to take action when they observeproblematic behaviors. On the face of thestatute, it does not appear that providingbystander training would count towardmeeting an employer’s obligations underSection 12950.1.

Additionally, relevant to a vital slice ofthe Los Angeles County economy, AB2338, governing talent agencies, adds provisions to the Labor Code requiringthat sexual harassment prevention andreporting materials be provided to artistswithin 90 days of agreeing to representa-tion.22 Before a work permit can be issuedto an age-eligible minor, both the minorand his or her parent or legal guardianmust complete training in sexual harass-ment prevention, retaliation, and reportingservices.23

Because sexual harassment training is mandatory, employers must provide itwhether it is effective or not. Of course,to reduce exposure to liability, firms arebetter off if the training works. Un fort -unately, this is easier said than done. In

2016, the EEOC published a report thatconcluded, “[e]mpirical data does notpermit us to make declarative statementsabout whether training, standing alone,is or is not an effective tool in preventingharassment.”24

Social science researchers and legalscholars have studied harassment trainingto evaluate the different types of trainingand their effectiveness. This research sug-gests that risk aversion, common to lawyersand human resources professionals, mayhave caused harassment training to stag-nate, as employers opt to play it safe withtraining that is designed primarily to com-ply with statutory requirements, as opposedto attempting to change employee behavior.This research suggests that training thatexplains the harms suffered by victims ofharassment may be more effective in reduc-ing harassment than training explainingpolicy in detail. 25

#Metoo Backlash

As with any social change, there has beenbacklash to the #metoo movement. A recentLeanIn survey indicates that male managersfear putting themselves at risk of exposureto harassment claims if they meet withwomen individually, casually, or over ameal or drinks.26 Vice Presi dent Mike Pencegarnered significant news coverage for stat-ing that he does not eat meals alone withwomen other than his wife. This can exposeemployers to discrimination liability, asthis practice tends to exclude women frominformal bond ing and networking oppor-tunities that can be critical to bona fidecareer development.27 Facebook COO andLean In founder Sheryl Sandberg wrote ina February 6, 2018, Facebook post, “Asfor the Pence rule—if you insist on followingit, adopt a revised version. Don’t want tohave dinner alone with a female colleague?Fine. But make access equal: no dinnersalone with any one. Breakfast or lunchesfor all. Or group dinners only, nothing one-on-one. What ever you choose, treat womenand men equally.”28

Supervisory employees have the respon-sibility to prevent harassment, discrimin -ation, and retaliation. This obligation doesnot arise only when employees complain—supervisors must also report conduct theyhave observed or overheard. Supervisorsshould take action when they learn ofconduct that violates the employer’s policy,whether or not the victim calls it “harass-ment” or files a formal complaint.

Management should initiate a promptand thorough investigation. Dependingon the circumstances, it may be prudentto retain the services of on outside, inde-pendent investigator. Plaintiffs’ attorneys

can be expected to attack the indepen-dence of the investigator on the groundsthat he or she is being paid by the em -ployer. Nev ertheless, an investigator’scredibility is his or her stock in trade,and most reasonable people understandthat investigators, like everyone else, havebills to pay and cannot work for free.Further, the purpose of an investigationis fact-finding: The employer may findevidence to support the termination of aharasser, evidence to defend itself againsta harassment suit, or neither. The inves-tigator should not make conclusions asto whether sexual harassment under thelaw occurred; an employer may be com-fortable with an investigator making find-ings as to whether the conduct violatedthe employer’s policy.

Many sexual harassment investiga -tions can be conducted quickly becausethere are few witnesses to interview be -yond the complaining employee and thealleged harasser. In other cases, there willbe other witnesses and documents toreview. In the digital age, digital commu-nications such as e-mail, text messages,and Slack may be critical sources of evi-dence. The investigator should prepare areport, which the employer should reviewthoroughly. If the investigation revealsconduct that violates the employer’s policy,whether or not the conduct also violatesthe law, the employer should take appro-priate disciplinary action, up to and in -cluding termination.

California employers should be awarethat the California Supreme Court hasheld that the federal Faragher-Ellerthdoctrine is unavailable under the FEHA.The Fara gher-Ellerth doctrine providesa complete affirmative defense to harass-ment claims when the employer has exer-cised reasonable care to prevent and cor-rect promptly any harassing behavior,and the employee unreasonably failed to take advantage of any preventive orcorrective opportunities provided by theem ployer or to avoid harm otherwise.How ever, California employers may limitdam ages in FEHA sexual harassment suits by proving the affirmative defense ofavoidable consequences when the em -ployee has unreasonably failed to takeadvantage of measures available underthe employer’s policy and reasonable useof the employer’s procedures would haveprevented at least some of the harm thatthe employee suffered.29

Senate Bill 1300 also establishes thatan employee who is alleged to have en -gaged in harassment may be held person-ally liable for retaliation against personswho have opposed practices forbidden by


the FEHA or being a witness in such anaction.30 In addition, SB 1300 prohibitsemployers from conditioning a raise, bonus,or continued employment on an employee’sagreeing to sign a release of a claim orright under the FEHA. This provision doesnot apply to negotiated settlements toresolve underlying claims that have beenfiled in court, before an administrativeagency, alternative dispute resolutionforum, or through an employer’s internalcomplaint process.31

Governing such negotiated settlements,the legislature also passed SB 820, codifiedas new Code of Civil Procedure Section1001. This statute voids any settlementagreement entered into on or after January1, 2019, that prevents disclosure of factualinformation about claims of sexual assault,sexual harassment, or harassment or dis-crimination based on sex. This provisiongoes to one of the animating ideas of the#metoo movement: when victims speakout, other victims are emboldened to telltheir stories.

It is worth emphasizing that this pro-vision does not simply void that provi -sion of an agreement; if the employee isprevented from disclosing factual in for -mation, the entire agreement is void. Thislegislation could have the effect of pre-

cluding many settlements, especially whenthe facts are in dispute. An employer whofeels he or she is wrongly accused mayprefer to litigate to clear his or her namerather than enter into a settlement thatwould allow the plaintiff to publicize“factual” information that would be dam-aging to the employer’s reputation. Al -though the legislation does not expresslyban non-disparagement clauses, in manycases a non-disparagement clause wouldbe futile, as the factual allegations arethemselves damaging to the reputationof the accused.

Further, except when a public entity orpublic official is a party, Section 1001enables a claimant to request a provisionthat shields his or her identity and all factsthat could lead to its discovery. Otherchanges to the FEHA will also affect thedisposition of sexual harassment cases: AB9 extends the statute of limitations fromone year to three,32 and AB 51 prohibitsconditioning any benefit of employmenton agreeing to submit disputes to arbitra-tion, which is perceived as a forum morefavorable to employers.33

While the #metoo movement has shineda newly bright light on an old problemand while some of the legal particulars,especially with respect to litigation and

settlement, have been tweaked, the fun-damentals are essentially the same. Policy,training, and accountability remain thekeys to reducing the occurrence of sexualharassment in the workplace. n

1 Cassandra Santiago & Doug Criss, An activist, alittle girl and the heartbreaking origin of “Me too,”CNN (Oct. 17, 2017), https://www.cnn.com/2017/10/17/us/me-too-tarana-burke-origin-trnd/index.html.2 Alyssa Milano, “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.”Twitter (Oct. 15, 2017), https://twitter.com/Alyssa_Milano/status/919659438700670976.3 29 C.F.R. §1604.11.4 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).5 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM’N,CHARGES ALLEGING SEX-BASED HARASSMENT (CHARGES

FILED WITH EEOC) FY 2010 - FY 2018, https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm (last viewed Nov. 23, 2019).6 DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING,2017 ANNUAL REPORT 10 (Aug. 30, 2018), https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/08/August302018AnnualReportFinal.pdf.7 GOV’T CODE §12923(a), quoting Harris v. ForkliftSys., 510 U.S. 17, 26 (1993).8 GOV’T CODE §12923(b).9 Brooks v. City of San Mateo, 229 F. 3d 917, 921(2000).10 GOV’T CODE §12923(c), citing Reid v. Google, Inc.,50 Cal. 4th 512 (2010).11 GOV’T CODE §12923(d).12 Id., citing Kelley v. Conco Cos., 196 Cal. App. 4th191 (2011).13 GOV’T CODE §12923(e), citing Nazir v. UnitedAirlines, Inc., 178 Cal. App. 4th 243 (2009).14 GOV’T CODE §12923(e), citing Nazir, 178 Cal. App.4th at 286.15 GOV’T CODE §12950.16 2 CAL. CODE. REG. §11023(b).17 GOV’T CODE §12950(a).18 See, e.g., Pantoja v. Anton, 198 Cal. App. 4th 87,92 (2011); Oncale v. Sundowner Offshore Services,Inc., 523 U.S. 75, 80 (1998). 19 Danielle Wiener-Bronner, McDonald’s CEO SteveEasterbrook is out for “consensual relationship withan employee,” CNN (Nov. 4, 2019), https://www.cnn.com/2019/11/03/business/mcdonalds-ceo-steve-easterbrook-steps-down/index.html.20 GOV’T CODE §12950.1.21 S.B 778, 2019-20 Leg. Sess. (2019).22 LAB. CODE §1700.50.23 LAB. CODE §1700.52.24 EQUAL EMPLOYMENT OPPORTUNITY COMM’N., SELECT

TASK FORCE ON THE STUDY OF HARASSMENT IN THE

WORKPLACE (2016).25 Elizabeth C. Tippett, Harassment Trainings: AContent Analysis, 39 BERKELEY J. EMP. & LAB. L. 481,517 (2018) [hereinafter Tippett].26 Working Relations in the #MeToo Era: Key Findings,Lean In https://leanin.org/sexual-harassment-backlash-survey-results (last viewed Nov. 25, 2019).27 Tippett, supra note 25, at 513.28 Sheryl Sandberg, post on Facebook (Feb. 6, 2018),from cite in FRANK MINITER, THE ULTIMATE MAN’SSURVIVAL GUIDE TO THE WORKPLACE (Simon & Schuster2019), available at https://www.facebook.com/sheryl/posts/10159854933800177.29 State Dep’t of Health Services v. Superior Ct., 31Cal. 4th 1026, 1044 (2003).30 GOV’T CODE §12940(j)(3)(B).31 GOV’T CODE §12964.5.32 GOV’T CODE §12960(e).33 GOV’T CODE §12953; LAB. CODE §432.6.


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KEN

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alifornia real estate developers arewell aware that they must complywith the zoning ordinances, devel-opment regulations and buildingcode of the city or county in whicha project is located. However, what

if the “developer” is a government entity?Is there any sort of comity between gov-ernment entities when it comes to realestate development regulations? Thatdepends on what sort of government agen-cies are involved and what the project is.

There is case law holding that the stateand other government agencies operatingon the state’s behalf at a local level werenot subject to local regulation. In Hall v.City of Taft,1 the Calif ornia Supreme Courtheld that school districts are agencies ofthe state for purposes of the local operationof the state school system. For that reason,

regulation of school construction wasfound to have been preempted by the stateand was not subject to local regulation.In Town of Atherton v. Superior Court,2

the court of appeal, citing Hall, reachedthe same conclusion with regard to thesiting of schools.

In response to the Hall and Town ofAtherton decisions, the California Legis -lature adopted Government Code sections53090 to 53095. The legislature’s intentin enacting these statutes was to strengthenlocal planning authority by giving citiesand counties control over zoning and building restrictions.3 Subdivision (a) ofGovernment Code Section 53091 statesthe general rule: “Each local agency shallcomply with all applicable building ordi-nances and zoning ordinances of the countyor city in which the territory of the local

June S. Ailin is an equity partner in the Los Angeles office of Aleshire & Wynder LLP and representscities and special districts in litigation involving land use, CEQA, and eminent domain. She was leadcounsel for the City of Hesperia in City of Hesperia v. Lake Arrowhead Community Services District.

Regulatory exemption of governmentagencies may be complicated byjurisdictional and other factors

by JUNE S. AILIN

MCLE ARTICLE AND SELF-ASSESSMENT TEST

By reading this article and answering the accompanying test questions, you can earn one MCLE credit.

To apply for credit, please follow the instructions on the test answer sheet on page 29.


agency is situated.” Section 53090(a) de -fines “local agency” as “an agency of thestate for the performance of governmentalor proprietary function within limitedboundaries.” Note that this definition doesnot include cities and counties. The othersections of the statutory scheme set forthexceptions to the general rule.

School districts are called out specificallyfor several exemptions. A school districtis not required to comply with city orcounty zoning ordinances unless the zoningordinance makes provision for the locationof public schools and unless the city orcounty has adopted a general plan. How -

ever, if the school district has coordinatedwith the city or county regarding the sitingof schools, by the vote of two-thirds ofthe members of the school board, a cityor county zoning ordinance can be ren-dered inapplicable to school construction.4

This “opt out” provision has its limi-tations. School districts cannot opt out ofcompliance with zoning ordinances withrespect to non-classroom buildings, whichinclude, but are not limited to, warehouses,administrative buildings, and automotivestorage and repair buildings.5

What qualifies as a classroom buildingis not always entirely obvious. Not sur-prisingly, in People ex rel. Cooper v. RanchoSantiago College,6 the court of appeal foundthat a swap meet located in a communitycollege parking lot is a non-classroom facil-ity and could not be ex empted from localland use controls. But in City of Santa Cruz v. Santa Cruz City School Board ofEducation,7 the court of appeal found anathletic field was a classroom facility andcould be exempted from local land usecontrols that related to lighting for the ath-letic field.8

A school board that votes to exemptitself from zoning ordinances must notifythe city or county of its action within 10days after the action is taken. If the cityor county objects, it may commence an

action in superior court for judicial reviewto determine whether it was arbitrary andcapricious. If the court finds the actionwas arbitrary and capricious, the schoolboard’s decision will be declared to be ofno force and effect, and the zoning ordi-nance will be applicable to the school dis-trict’s project.9

Local building codes do not usuallyapply to construction of classroom build-ings because their design and constructionare overseen by the State Division ofArchitecture. However, the Division of theState Architect may delegate that respon-sibility to a city or county if it finds the

city or county has an adequate inspectionprogram.

To the extent school construction canimpact off-site infrastructure, however,school districts must comply with localregulations. Government Code Section53097 provides a school district must com-ply with city and county ordinances regu-lating drainage improvements and condi-tions, as well as road improvements andconditions, including complying with ordi-nances providing for review of plans foronsite improvements that affect drainage,road conditions, or grading, and must giveconsideration to the specific requirementsand conditions of city or county ordinancesrelating to the design and construction ofoffsite improvements. A school district canchoose not to submit plans for review, butif it makes that choice, the city or countyis not liable for injuries or property damagecaused by the school district’s failure tocomply with requirements for review ofplans.10

In an unpublished decision,11 the courtof appeal analyzed the question whetherSection 53097 applied to a school districtwishing to construct a pedestrian overpassabove a city street. The appellate courtcharacterized the school district’s generalexemption from local ordinances as anaspect of sovereign immunity. In order for

the school district to be subject to the city’sordinance regulating encroachments intoair space above city streets, the statute hadto clearly waive that immunity. The courtof appeal concluded sovereign immunityhad not been waived with respect to thecity’s particular ordinance.

Other exceptions to the general rule ofGovernment Code Section 53091(a) focuson water and electric utility uses, in recog-nition of the fact that physical constraintscan limit options for the location of facil-ities required for certain aspects of pro-viding these utilities. In creating theseexceptions, the legislature sought to strikea balance between the value of local zoningcontrol and the state’s interest in efficientstorage and transmission of water.12

Section 53091(e) provides:Zoning ordinances of a county orcity shall not apply to the locationor construction of facilities for theproduction, generation, storage,treatment, or transmission of water,or for the production or generationof electrical energy, facilities that aresubject to Section 12808.5 of thePublic Utilities Code, or electricalsubstations in an electrical transmis-sion system that receives electricityat less than 100,000 volts. Zoningordinances of a county or city shallapply to the location or constructionof facilities for the storage or trans-mission of electrical energy by a localagency, if the zoning ordinancesmake provision for those facilities.This exemption, sometimes referred to

as the “absolute exemption,” applies auto-matically, without the need for any specificfindings or the adoption of any resolution.Note the exception to the exemption forthe location or construction of facilitiesfor storage or transmission of electricalenergy. These facilities are within the scopeof the general rule of Section 53091(a),unless some other exemption applies.

Government Code Section 53096,sometimes called the “qualified exemp-tion,” provides the exemption for projectsthat fall into the exception to the absoluteexemption:

Notwithstanding any other provisionof this article, the governing boardof a local agency, by vote of four-fifths of its members, may render acity or county zoning ordinance in -applicable to a proposed use of prop-erty if the local agency at a noticedpublic hearing determines by reso-lution that there is no feasible alter-native to its proposal. The governingboard may not render a zoning ordi-nance inapplicable to a proposed

Paradoxically, cities and counties are notobligated to respect and follow each other’sland use regulations. Cities and counties arenot included in the definition of “localagency” found in Section 53090(a) and, as aresult, are not bound by the general rule ofGovernment Code Section 53091(a).


MCLE Answer Sheet #295

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INSTRUCTIONS FOR OBTAINING MCLE CREDITS

1. Study the MCLE article in this issue.

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3. Mail the answer sheet and the $25 testing fee($35 for non-LACBA members) to:

Los Angeles County Bar Association Attn: Los Angeles Lawyer Test P.O. Box 55020 Los Angeles, CA 90055

Make checks payable to: Los Angeles County BarAssociation.

4. Within six weeks, Los Angeles Lawyer willreturn your test with the correct answers, arationale for the correct answers, and acertificate verifying the MCLE credit you earnedthrough this self-study activity.

5. For future reference, please retain the MCLEtest materials returned to you.

ANSWERS

Mark your answers to the test by checking theappropriate boxes below. Each question has onlyone answer.

1. n True n False

2. n True n False

3. n True n False

4. n True n False

5. n True n False

6. n A n B n C

7. n True n False

8. n True n False

9. n True n False

10. n A n B n C

11. n True n False

12. n True n False

13. n True n False

14. n True n False

15. n True n False

16. n True n False

17. n True n False

18. n True n False

19. n True n False

20. n True n False

MCLE Test No. 295The Los Angeles County Bar Association certifies that this activity has been approved for Minimum ContinuingLegal Education credit by the State Bar of California in the amount of 1 hour. You may take tests from backissues online at http://www.lacba.org/mcleselftests.

1. A school district is an agency of the state for purposesof the local operation of schools.

True.False.

2. As a general rule, a local agency must comply withthe applicable building and zoning ordinances of thecity in which the local agency’s land is located.

True.False.

3. “Local agency” does not include a city or a county,so cities and counties do not have to comply with eachother’s building and zoning ordinances.

True.False.

4. A school district must comply with all city and countyzoning ordinances.

True.False.

5. A school district can opt out of compliance with cityor county zoning ordinances with respect to any of itsfacilities.

True.False.

6. Which of the following local agency facilities arenot within the scope of the absolute exemption fromlocal regulations?

A. Facilities for the production, generation,storage, treatment, or transmission of water.B. Facilities for the production or generation ofelectrical energy.C. Facilities for the storage or transmission of water

or electrical energy.

7. School districts must comply with local regulationsregarding drainage and road improvements.

True.False.

8. A school district cannot avoid liability for the designof drainage and road improvements by submittingplans to the city or county for review.

True.False.

9. A local agency can always avoid compliance withlocal zoning and building regulations by the vote of4/5 of its governing body’s finding compliance wouldmake any type of project infeasible.

True.False.

10. On judicial review of a resolution finding compliancewith local regulations would make a project infeasible,applicable standard of review with respect to the infea-sibility finding is:

A. clear and convincing evidence. B. substantial evidence.C. abuse of discretion.

11. A local agency that plans to acquire property outsideits jurisdiction must seek a determination that its

project is consistent with the general plan of the juris-diction in which the property is located.

True.False.

12. If a local agency does not obtain a finding that anextra-jurisdictional project is consistent with the generalplan of the other jurisdiction, the local agency is pro-hibited from proceeding with the project.

True.False.

13. Large electrical transmission poles are within thescope of the absolute exemption from compliance withlocal regulations.

True.False.

14. Large electrical transmission poles are within thescope of the qualified exemption from compliance withlocal regulations.

True.False.

15. A local agency that relies on the qualified exemptionfrom compliance with local regulations has 30 days inwhich to inform the jurisdiction whose local regulationsare being avoided that it has taken action to exemptitself from those regulations.

True.False.

16. The jurisdiction whose regulations are beingavoided by a local agency relying on the qualifiedexemption has no recourse to challenge the exemp-tion.

True.False.

17. A school district can opt out of compliance withzoning ordinances for classroom buildings if it coordi-nates with the city or county with regard to the sitingof schools.

True.False.

18. A school district cannot opt out of compliance withzoning ordinances with respect to non-classroom build-ings.

True.False.

19. Only school facilities that are within an enclosedbuilding are classroom facilities.

True.False.

20. A school district that opts out of compliance withzoning ordinances with respect to non-classroom facil-ities does not have to inform the city or county in whichthose facilities are located.

True.False.

use of property when the proposeduse of the property by the localagency is for facilities not related tostorage or transmission of water orelectrical energy, including, but notlimited to, warehouses, administra-tive buildings or automotive storageand repair buildings.The breadth of the first sentence is dra-

matically restricted by the double negativeof the second sentence. As this section cur-rently reads, this qualified exemption ap -plies only to facilities related to storage ortransmission of water or electrical energy.The local agency must notify the city orcounty of its action to rely on the qualifiedexemption within 10 days after the actionis taken. If the city or county objects, itmay commence an action in superior courtfor judicial review to determine whetherthe local agency’s decision was arbitraryand capricious.13

In City of Lafayette v. East Bay Mun -icipal Utility District,14 the court of appealwas called upon to interpret Sections53091(e) and 53096. East Bay MunicipalUtility District (EBMUD) was the waterpro vider to customers in Alameda and Con -tra Costa counties, including the City ofLafayette. Property was owned by EBMUDin the city on which it had long operateda filter plant. That property was zoned forsingle-family residential use but designated“public use” in the city’s general plan,which allowed nonresidential use with aland use permit. The existing facilities onthe site included filter beds, water storagetanks, equipment, sheds or yards, pumpingplant, warehouses, chemical buildings, andan office building.15

Due to population growth and increaseddemand for water, EBMUD needed addi-tional facilities. After a search for anotherlocation, it concluded the filter plant sitein Lafayette would be the best location.When EBMUD applied for a land use per-mit, the city denied the permit due to publicopposition.16 In response, EBMUD adoptedtwo resolutions under sections 53091 and53096, finding the additional facilitieswere exempt from the city’s land use reg-ulations because they were facilities forthe transmission and storage of water andno other site was feasible.17

The trial court found the facilities pro-posed to be added to the Lafayette sitewere not facilities for the production, gen-eration, storage and transmission of waterwithin the meaning of the exception foundin Section 53091. In addition, the trialcourt found the proposed facilities—ware-houses, administrative buildings, and auto-motive storage, and repair buildings—werenot eligible for the infeasibility exception

under Section 53096.18 This decision wasaffirmed on appeal.

Looking first to Section 53091, the courtof appeal concluded the facilities EBMUDwished to add at the Lafayette site werenot exempt from the city’s zoning and build-ing ordinances. The project “is a facilityfor the storage of materials and equipmentnecessary for maintenance and repair ofaqueducts, pipelines, filter plants and reser-voirs.”19 Thus, finding that the site servedas a support facility, the court stated:

[I]t does not actually perform thefunction of generating, transmittingor storing water. We think that theabsolute exemption of section 53091was intended to be limited to facil-ities directly and immediately usedto produce, generate, store or trans-mit water. Only those indispensablefacilities must be geographicallylocated at the unfettered discretionof a water district—that is, withoutthe burden of city and county zoningregulations—in order to assure theimperative of efficient and econom-ical delivery of water to customers.In section 53091 we perceive anintention to distinguish between theessential components of a water stor-age and transmission system, andthose support facilities proposed inthe…project, with only the formergranted absolute immunity fromlocal control.”20

For the same reason, the court of appealheld that the facilities did not qualify forthe exemption under Section 53096 forfacilities related to the storage or trans-mission of water, finding that the exemp-tion applied only to facilities that have “a‘connection with’ and are in fact integralto the proper operation of particular stor-age and transmission functions of waterdistricts.”21 While the project included amix of facilities, some of which were relatedto the storage or transmission of waterand others of which were not, the courtconcluded the inclusion of nonexempt facil-ities compelled application of the city’szoning and building ordinances. Other -wise, local agencies could escape localzoning and building regulations by includ-ing in an otherwise nonexempt project asmall component that was directly relatedto the storage or transmission of water,there by defeating the legislature’s intentto strengthen local control.22

More recently, in City of Hesperia v.Lake Arrowhead Community ServicesDistrict,23 the court of appeal reached asimilar conclusion with regard to a solarpower project that a community servicesdistrict sought to build outside its juris-

diction for the purpose of obtaining morefavorable electric rates on power it usedto pump water. The district provides waterand wastewater treatment services to cus-tomers located in the Lake Arrowheadarea. The district sought to participate ina program that allows government agenciesthat use electric power to generate powerby renewable means, upload that powerto the electric grid, and pay a lower ratefor the power they use.24

The district owns a 350-acre parcel ofundeveloped land in the City of Hesperiathat it uses for wastewater treatment. Thedistrict entered into a contract with a pri-vate company, SunPower, to build andoperate a six-acre solar power generationfacility on part of the district’s parcel.25

Hesperia has an ordinance that regulatesthe location of solar farms. A conditionaluse permit (CUP) is required, and the solarfarm cannot be within 660 feet of certainuses, including major highways and landzoned for agricultural or residential use.26

The site on the 350-acre parcel that thedistrict had chosen was within 660 feet ofa major highway and land zoned for agri-cultural and residential use, thus runningafoul of the setback requirements.27

When the district conferred with Hes -peria about its solar project, the city re -sponded that a general plan amendment,a zone change, and a CUP would be re -quired.28 Rather than comply with the city’szoning ordinance, the district adopted aresolution approving the solar project thatincluded a finding that the project waswithin the scope of the absolute exemptionand also a finding that there was no alter-native location for the solar project andtherefore the district was availing itself ofthe qualified exemption as well.29

Hesperia filed a petition for writ ofmandate, alleging that the solar projectwas not within the scope of the district’spowers, that the project was not withinthe scope of the qualified exemption, andthat the district board’s finding that theproject was not feasible if the district hadto comply with the city’s zoning ordinancewas not supported by substantial evidence.The trial court concluded the solar projectwas within the scope of the district’s author-ity. However, because the solar project wasnot essential to the district’s provision ofwater and wastewater service, the trialcourt found the project was not withinthe scope of the absolute exemption andthe administrative record did not containsubstantial evidence to support the findingrequired for the qualified exemption.30

The district appealed.31 Relying on theanalysis in the City of Lafayette case andthe legislative history of the statutes, the


court of appeal affirmed the judgment.The court of appeal found the fact thatthe district was not authorized to provideelectrical power to its customers did notprevent it from relying on the absoluteexemption. The language of the statutebases the availability of the exemption onthe nature of the facilities to be constructed,not on the purpose of the local agencyrelying on the exemption.32 However,because the project involved the transmis-sion of electricity from the solar projectto Edison’s power grid, the project fell intothe exception to the absolute exemption.33

The district argued that treating thisproject as one involving the transmissionof electronic energy “would prohibit anyelectrical energy facility from qualifyingfor the Absolute Exemption [under Section53091(e)], as there must always be somemechanism to convey the electrical energyproduced or generated for use.”34 The courtof appeal was not persuaded by this argu-ment because the qualified exemption underSection 53096(a) still remained for projectsthat fell within its limitations.35 It alsorejected the district’s argument that theexception to the absolute exemption wasonly intended to apply to large transmissionpoles in residential neighborhoods.36

The court of appeal held that the solarproject was not exempt under Section53096(a) because the record did not con-tain substantial evidence that the projectwould be infeasible if not exempted fromthe city’s zoning ordinance. Section 53096(c) defines “feasible” as “capable of beingaccomplished in a successful manner withina reasonable period of time, taking intoaccount economic, environmental, social,and technological factors.” In the absenceof case law specific to this statutory scheme,the court of appeal relied on case lawregarding feasibility in the context of theCalifornia Environmental Quality Act.37

The district’s findings regarding feasi-bility focused on the fact that the propertyit owned in Hesperia was the only placeit could put the solar farm and that itwould have to incur costs to redesign andrelocate the project from the specific siteit had chosen on that property to someother location on the property that com-plied with the city’s zoning ordinance.Neither the findings nor the record reflectedany analysis of the cost differential betweenalternative sites for the project.38 The dis-trict’s resolution to avail itself of the qual-ified exemption was thus an abuse of dis-cretion for purposes of Code of CivilProcedure Section 1094.5(b).39

While the appeal was pending, the dis-trict applied for a general plan amendment,zone change, and CUP for the solar project.

The city denied those applications. In aneffort to bolster its argument that the pro-ject was infeasible at any other location,the district asked the court of appeal totake judicial notice of documents reflectingthese actions, but the court of appealrejected this request.40

Paradoxically, cities and counties arenot obligated to respect and follow eachother’s land use regulations. Cities andcounties are not included in the definitionof “local agency” found in Section53090(a) and, as a result, are not boundby the general rule of Government CodeSection 53091(a). In addressing whethera county’s failure to follow a city’s buildingcode was negligence per se, the CaliforniaSupreme Court concluded it was not,because the county was an arm of the stateand not a local agency subject to Section53090.41 This exemption from local reg-ulations as between cities and countiesapplies whether the particular use is gov-ernmental or proprietary.42

The legislature has, however, given someattention to whether governmental projectsoutside the developing entity’s jurisdictionare consistent with the general plan of theaffected jurisdiction. Before a city, county,or other local agency acquires property inanother jurisdiction for a public project,the agency intending to acquire the prop-erty is supposed to seek a determinationfrom the planning agency of the countyor city in which the property is locatedthat the project for which the property isbeing acquired is consistent with the city’sor county’s general plan.43 If there is noresponse to the request within 40 days,the project is deemed consistent with thegeneral plan. If the acquiring entity is alocal agency (defined as not including thestate, a city, or a county), and the city orcounty planning agency disapproves theproject, the local agency can overrule theobjection.44 However, there is no penaltyfor noncompliance with this statutory pro-vision or for proceeding with the projectnotwithstanding an adverse determinationby the affected jurisdiction’s planningagency.

This paradoxical difference in treatmentof cities and counties as compared withentities implementing state policy will haveto await the attention of the legislature atsome future date. n

1 Hall v. City of Taft, 47 Cal. 2d 177, 181 (1956).2 Town of Atherton v. Superior Ct., 159 Cal. App. 2d417, 421-22 (1958).3 City of Lafayette v. East Bay Mun. Util. Dist., 16Cal. App. 4th 1005, 1013, 1017 (1993).4 GOV’T CODE §53094.5 Id.6 People ex rel. Cooper v. Rancho Santiago Coll., 226

Cal. App. 3d 1281, 1285-86 (2017).7 City of Santa Cruz v. Santa Cruz City Sch. Bd. ofEduc., 210 Cal. App. 3d 1 (1989).8 Although not related to a school district, it is alsoworth noting that a circus leasing property on a stateuniversity campus is subject to local regulations. Bd.of Trs. of Cal. State Univ. v. City of Los Angeles, 49Cal. App. 3d 45 (1975).9 GOV’T CODE §53094.10 GOV’T CODE §53097.11 Los Angeles Unified Sch. Dist. v. City of Maywood,Nos. B238629, B238630 (Second Dist. Ct. of AppealFeb. 19, 2013). The California Supreme Court denieda request for publication of this opinion.12 Id. at 1013-14.13 GOV’T CODE §53096(b). However, a county com-munity services area cannot override local ordinances.See GOV’T CODE §25212.2(a).14 City of Lafayette v. East Bay Mun. Util. Dist., 16Cal. App. 4th 1005 (1993).15 Id. at 1009.16 Id. at 1009-10.17 Id. at 1010-11.18 Id. at 1011.19 Id. at 1013.20 Id. [emphasis in original].21 Id. at 1015.22 Id. at 1015-17.23 City of Hesperia v. Lake Arrowhead Cmty. Svcs.Dist., 37 Cal. App. 5th 734 (2019).24 Id. at 741.25 Id. at 742-43. The administrative record reflected adesire on the part of SunPower to contract with otherlocal agencies to install solar power generation facilitieselsewhere on the Hesperia property.26 Id. at 741-42.27 Id. at 742.28 Id.29 Id. at 743-44.30 Id. at 744-46.31 Id. at 746. The city did not cross-appeal on the ques-tion whether the district had the authority to build thesolar project.32 Id. at 753-54.33 Id. at 755-59.34 Id. at 756-57.35 Id.36 Id. at 757-58.37 Id. at 760-65.38 Id. at 764-65.39 Id. at 762.40 Id. at 766. The city and the district entered into atolling agreement with respect to potential litigationby the district challenging the city’s denial of the district’sapplication for a general plan amendment, a zonechange, and a conditional use permit. The tolling agree-ment has expired. The district has not commenced lit-igation challenging the city’s denial of the district’sapplications.41 Akins v. Sonoma County, 67 Cal. 2d 185, 194(1967); see also County of Los Angeles v. City of LosAngeles, 212 Cal. App. 2d 160, 164-66 (1963).42 Id. at 166-67; 68 Ops. Atty. Gen. 114 (1985).43 GOV’T CODE §56402. A project is consistent withthe general plan if, considering all of its aspects, it willfurther the objectives and policies of the general planand not obstruct their attainment. Perfect conformityis not required, but the project must be compatiblewith the general plan’s objective and policies. SanFrancisco Tomorrow v. City and County of SanFrancisco, 229 Cal. App. 4th 498, 513 (2014). A courtmust defer to a consistency finding unless no reasonableperson could have reached the same conclusion. OrangeCitizens for Parks & Recreation v. Superior Ct., 2 Cal.5th 141, 155 (2016).44 GOV’T CODE §56402.


by the book REVIEWED BY PAULA MITCHELL


MOST ATTORNEYS AND JUDGES growweak in the knees at the thought ofhaving to read and understand a pedi-atric neuroradiology report. Delvinginto the cause of an infant or toddler’sfatal head injury is not something anylawyer or judge or law clerk undertakeswith glee. However, in criminal caseswhere the stakes could not be higherfor a parent or childcare provider, itis a critical andnecessary under-taking if justice isto be served.

The ForensicUnreliability of the Shaken Baby Syndromeby Randy Papetti is essential reading foranyone who needs to understand the foren-sics of pediatric head injuries and the relia-bility of the science underlying Shaken BabySyndrome (SBS), lawyers and judges alike.Papetti is uniquely qualified to explain theunreliability—for legal purposes—of the diagnosis of ShakenBaby Syndrome, in terms jurists understand. He is not a physiciannor medical researcher; he is a trial lawyer with experience liti-gating these forensically difficult cases and a talent for explainingthe history, evolution, and unreliability of the SBS diagnosis.Papetti’s message is as important as it is urgent: the scientificallycontroversial medico-legal diagnosis, first called Shaken BabySyndrome, and now also referred to as Abusive Head Trauma(AHT), is deeply flawed, unreliable, and urgently requires greaterjudicial oversight.

Thousands of parents and caregivers have been sent to prisonfor child abuse and murder in cases where the prosecution’stheory was based on SBS/AHT. Put simply, child abuse is oftenassumed and SBS diagnosed in cases where a child experiences alife-threatening head injury that cannot be readily explained bya contemporaneous traumatic event, such as a serious car accidentor a significant fall witnessed and described by others. But thatassumption is not the same as scientific proof.

By way of illustration, Papetti explains a scenario that oftenappears in SBS/AHT cases when a child experiences a headinjury from an accidental fall, such as from a bunk bed or play-ground equipment or in a shower, and the child cries but appearslucid and uninjured aside from perhaps a bump on the head. Aday or two or three later, the child becomes gravely ill and unre-sponsive and is rushed to the hospital. Under the SBS/AHThypothesis, it is not possible for a child to experience a lucidinterval for a day or more after a head injury that later provesfatal. Once the child is rushed to the hospital for treatment,

child abuse is assumed and SBS/AHT is “diagnosed”—often byself-described “child abuse experts”—because there is no evidenceof a severe traumatic event immediately preceding the child’sloss of consciousness.

Adding to the confusion and controversy, parents and care-givers in these cases not only endure the painful loss of a belovedchild, they inevitably and understandably feel guilt over somethingso tragic happening while the child was in their care. When theytry to explain to hospital staff and law enforcement officialsthat they attempted to revive the child by jostling or “shaking”

him or her, they are unwittingly providing statements that arelater used against them as “confessions.” In many cases, at thatpoint the prosecution has what it needs to get a conviction. It istoo often—shockingly—just that simple. As this scenario illus-trates, the evidence used to prosecute these cases often is notscientific at all. Papetti explains that the SBS/AHT diagnosis isbased on circular reasoning: it is assumed based on the absenceof another, acceptable explanation for the child’s injury. Hefurther explains that a finding of “child abuse” in these cases isnot supported by medical science, nor is a caregiver’s explanationabout trying to revive a child by shaking or jostling him or herscientific evidence.

Innocent Explanations

Tragically, accidental falls that result in a fatal head injury and achild’s death do happen. There are a number of innocent expla-nations for the types of head injuries frequently diagnosed asSBS/AHT, including household or playground falls and naturaldisease processes such as birth-related subdural hemorrhage thatbecomes chronic. Papetti lays out clearly and concisely the existingliterature and explains that research and studies are effectivelyand increasingly dismantling the myths underlying the SBS/AHTdiagnosis, including the myth that lucid intervals following acci-dental short falls do not occur.

Even though many clinical and forensic beliefs in SBS/AHT

The author lays out a clear-eyed assessment of the unreliability

of the Shaken Baby Syndrome/Abusive Head Trauma diagnosis for

legal purposes and for use in criminal convictions.

Paula Mitchell is the legal director of Loyola Law School’s Project for theInnocent.

The Forensic Unreliability of the Shaken Baby Syndrome

By Randy Papetti, Esq. Academic Forensic PathologyInternational, March 2018$150, 340 Pages


are not reliable, prosecutors still regularlyrely on that diagnosis and use it to pow-erful effect in the courtroom. As Papettiexplains, that is because the SBS/AHTdiagnosis continues to be well-acceptedamong many in the medical community.Jurors convict based on the SBS/AHThypothesis because they often perceive thestate’s evidence as vested with immenseinstitutional credibility and scientific reli-ability, sometimes referred to as “whitehat bias” because prosecutors are perceivedas wearing the white hat in adversarialcourtroom proceedings.

However, things are beginning tochange. As the flaws in the SBS/AHT hy - pothesis are becoming more apparentthrough credible, peer-reviewed studies,courts are beginning to more closely scru-tinize the science in these cases and thereliability of the SBS/AHT diagnosis. Insome cases, courts are overturning con-victions on the ground that they were notbased on expert testimony shown to besufficiently reliable. On October 29, 2019,for example, a court in Mississippi over-turned Joshua Clark’s conviction on theground that the trial court had not ade-quately ensured that an expert’s testimonyabout SBS/AHT was reliable. Clarke hadbeen alone with the child victim and threeother small children for several hours when the victim’s mother returned hometo find her child “limp and lifeless.” Attrial, the prosecution’s medical expert tes-tified that the child had been shaken vio-lently and Clarke was convicted. On ap -peal, Clarke’s attorney pointed to a recentSwedish study1 which found that no high-quality studies supporting SBS exist, thatthere are no studies based on independentlywitnessed or videotaped evidence of SBS,and the studies that do exist carry a highrisk of bias due to circular reasoning. Thereport further states that existing SBS/AHTstudies are based primarily on assessmentsof “child protection teams” who widelyassume that a child has been violentlyshaken when certain types of injuries areobserved.

Papetti discusses the reliability andimportance of the Swedish study, whichwas comprehensive and carried out overa two-year period. He urges judges andattorneys to read and understand its find-ings. SBS/AHT cases are fraught with periland extremely difficult to litigate. To besure, criminal child abuse does occur. Itis the job of law enforcement to prosecutethese cases. Once charges are filed, how-ever, the desire for vengeance when childabuse is even suspected is particularlyacute; children are vulnerable. Childrenare to be protected, not abused. That is

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why there is an added onus on courts toact as responsible gatekeepers when con-sidering whether to permit jurors to con-sider evidence of the SBS/AHT diagno -sis, which is so fraught with peril and, as Papetti explains, unreliable for legal purposes.

For these reasons, it is critical thatjudges and attorneys handling these casesunderstand the science, or lack thereof,underlying the SBS/AHT diagnosis. TheForensic Unreliability of the Shaken BabySyndrome is a valuable contribution tothe existing literature because it is acces-sible and effectively lays out the history,literature, and science needed to assessthe medical evidence presented in thesedifficult cases.

Papetti’s book is a great resource foranyone in search of a comprehensive andwell-researched overview of the SBS/AHThypothesis. He sets forth an easy-to-followhistory of the way the SBS diagnosis wasoriginally hypothesized, how it made itsway into the courtroom, and why it con-tinues to be the basis of convictions today.He also explains how the SBS/AHT debatecame to be so polarized, with proponentsarguing that there is no scientific contro-versy surrounding the debate, while critics

maintain that the science is so flawed thatit is “more an article of faith than a propo-sition of science.”

Boston Nanny Case

The author tells the story of the pendulumswing that saw SBS reaching its zenith in2001 around the time of the nationallytelevised Boston nanny case involvingBritish au pair Louise Woodward, and heexplains that the pendulum began to swingback when studies increasingly showedthat SBS is inconsistent with biomechanicalstudies and that a child can have a lucidinterval, even after sustaining a fatal headinjury caused by an accidental fall.

In what is perhaps Papetti’s most valuablecontribution, he lays out a clear-eyed as -sessment of the unreliability of the SBS/AHT diagnosis for legal purposes and foruse in criminal convictions. He explainsthat SBS was accepted as evidence in caseafter case, even before being validated. Foryears, he says, the legal system failed to rec-ognize advances in the medical and scientificliterature that undermined SBS/AHT. Pap -etti’s real point, and his most urgent message,is that the reliability of SBS, which is unde-niably based on scientifically controversialevidence, has yet to be adequately addressed

in the courts. Papetti’s book is a clarion callfor that to change.

The appendix in the back of The For -ensic Unreliability of the Shaken BabySyndrome is by itself a reason to read thisbook. It is an invaluable resource to any -one struggling to understand the medicalevidence and terminology in a given casein order to assess the reliability, or lackthereof, of an SBS/AHT diagnosis. It in -cludes an overview of infant anatomy andhelpful illustrations that explain headinjuries in easy-to-understand terms.

Child abuse is not an easy topic. Theloss of a child is a horrific thing. Papetti’sbook attempts to explain the SBS/AHTdiagnosis in a manner that will assist juristsand medical professionals alike, with agoal of avoiding compounding the unbear-able loss of a child by wrongfully convictingthe child’s parent or caregiver of abusingthe child and causing his or her death.Papetti accomplishes what he set out todo. His contribution to the existing liter-ature will undoubtedly pave the way forbetter justice in these difficult cases. n

1 Ma�ns Rosén et al., Shaken Baby Syndrome and theRisk of Losing Scientific Scrutiny, 106 ACTA PAEDIA -TRICA 1905 (2017).


closing argument BY HON. RICHARD L. FRUIN

IN HIS BOOK Moneyball: The Art of Winning an Unfair Game,author Michael Lewis describes a statistical system using playeron-base percentages rather than hitting percentages to identifyundervalued baseball players for selection in the player draft. Thebook inspired the successful Moneyball movie starring Brad Pitt.In the movie, Brad Pitt’s character Billy Beane, general managerof the Oakland Athletics baseball team, pushes back against thebiases of his scouting staff in focusing on hitting percentages. “DoI care how a player gets on base?” Beane exclaims, making thepoint that a player can get on base either by hitting safely or bynot swinging at pitches outside the strike zone.

Should a lawyer care about how a demurrer is decided—whether in the courthouse by the judge at a law-and-motion(L&M) hearing or when an attorney in a telephone call persuadesthe opposing attorney what a judge will do if required to decide a contemplated demurrer?

The California Legislature has given lawyers that choice. Fouryears ago, the legislature enacted a new requirement for demurrerschallenging the sufficiency of a complaint: before filing a demurrer,the attorney for the defendant is required first to meet and confer“in person or by telephone” with plaintiff’s attorney to discuss“whether an agreement can be reached that would resolve theobjections to be raised by the demurrer.”1 This requirement wasextended to motions to strike (StM) and motions for judgment onthe pleadings (JOPs) two years later.2 Have the new statutes reducedthe number of demurrer hearings? Absolutely.

I preside in a civil department in Stanley Mosk Courthouse,one of 41 judges with an individual calendar (IC) assignment.Case inventories for the IC judges jumped during the court budgetcrisis of 10 years ago. Today, each IC judge carries an average of500 cases. My practice has been to tabulate the motion hearingsin my courtroom every year. For my statistics, I counted motionsto strike and JOPs as demurrers because the legal standards fordeciding these motions are the same. Moreover, when a motionto strike was filed with a demurrer—a usual practice—I countedthe two motions as one demurrer. Year after year, I watched asthe number of demurrer hearings climbed alarmingly, peaking at208 demurrers in 2015. Then the number of demurrer hearingsstarted to fall. Demurrer hearings last year were half the numberin 2015. My demurrer hearing statistics over six years are:

Year L&M Dem/Days JOP/ StM2013 1582014 202 1762015 198 2082016 195 1292017 193 1142018 203 110The only variable I can discern is the “in person or by telephone”

meet-and-confer requirement imposed by statute for the filing ofa demurrer. It is likely that the demurrers that were not filed

because of the new meet-and-confer requirement—either becausethe plaintiff’s attorney decided to file an amended complaint toavoid the threatened demurrer or the defendant’s attorney decidedfiling a demurrer was not cost-effective—were the weaker motions.But, so what? Even weak demurrers impose delay, expense, andclutter that is better avoided.

Moreover, because of the new “in person or by telephone”meet-and-confer requirement, the scope of the demurrer that isultimately filed may be narrowed, saving the time needed to briefand argue the motion.

The new statute expects attorneys complying with the “inperson or by telephone” requirement to have a substantive andthorough discussion. California Code of Civil Procedure Section430.41, subdivision (a)(1), requires “the demurring party [to]identify all of the specific causes of action that it believes aresubject to demurrer and identify with legal authority the basis of the deficiencies.” The statute also requires the “party who filedthe complaint, cross-complaint, or answer [to] provide legal sup -port for its position that the pleading is legally sufficient or, in thealternative, how the complaint, cross-complaint, or answer couldbe amended to cure any legal deficiency.”

The attorney for the demurring party is required to file withany demurrer a declaration attesting to compliance with the newmeet-and-confer requirement. My experience in ruling on demurrersis that increasingly some attorneys are dodging the “in person orby telephone” requirement. However, courts are developing strategiesto encourage compliance with the new statutes. The JudicialCouncil has approved a check-the-box form to satisfy the statutoryrequirement. The declarant may check whether the meet-and-confer was by telephone or in person at least five days before ademurrer is filed. (Form Civ-140 is approved for optional use.)

My practice in drafting tentative rulings for demurrers is tonote that the demurring party complied with the “in person or bytelephone” meet-and-confer requirement. If the demurring partyhas not provided the declaration, that would justify taking thedemurrer off calendar until such time as counsel do meet andconfer in person or by telephone. The “in person or by telephone”requirement has reduced demurrer hearings in my courtroom and,by extension, all civil departments. Judicial enforcement of thenew statutory requirement may be needed to retain its effectiveness.Lawyers benefit from the new statutes. Indeed, it may be anticipatedthat when knowledgeable advocates take time to discuss the meritstogether, they may not only save a trip to the courthouse but alsoestablish a relationship that will bear fruit over the course of thelitigation. n

1 CODE CIV. PROC. §430.41.2 CODE CIV. PROC. §435.5, 439.

What Trial Lawyers Can Learn About Demurrers from Moneyball

Richard L. Fruin is a Los Angeles Superior Court judge.

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