RECORDER - Law.com v. Kimberly-Clark Corporation N.D. CA Consumer Protection 10192 California consumer may seek injunctive relief to prevent manufacturer’s continued false advertising

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Volume 31, Number 205 Full Case Listings updated daily at www.therecorder.com/cdos Monday, October 23, 2017

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NINTH CIRCUIT COURT OF APPEALS

Jones v. Las Vegas Metropolitan Police Department NV Civil Rights 10186Plaintiffs should have been afforded opportunity to substitute in proper party as to Fourth Amendment claim (Kozinski, J.)

Davidson v. Kimberly-Clark Corporation N.D. CA Consumer Protection 10192California consumer may seek injunctive relief to prevent manufacturer’s continued false advertising (Murguia, J.)

Brinkley v. Monterey Financial Services, Inc. S.D. CA Class Actions 10200Plaintiff’s class data failed to establish compliance with requirements of CAFA’s home-state controversy exception (M.D. Smith, J.)

CALIFORNIA COURTS OF APPEAL

Lyons v. Colgate-Palmolive Company C.A. 1st Products Liability 10203Plaintiff’s expert testimony created triable issue of fact as to presence of asbestos in cosmetic talcum powder (Pollak, Acting P.J.)

Morales-Simental v. Genentech, Inc. C.A. 1st Personal Injury 10207Supervisory employee cannot order himself to perform special errand for employer while off-duty (Streeter, J.)

Dryden Oaks, LLC v. San Diego County Regional Airport Authority C.A. 4th Land Use and Planning 10214

Claim of “disguised” regulatory taking unsupported by established law (Dato, J.)

People v. Rodriguez C.A. 5th Criminal Law 10224Data generated by GPS ankle monitor tracking system properly admitted at trial (Poochigian, J.)

People v. Bona C.A. 2nd 10236Order modifying opinion

October 23, 2017 CALIFORNIA DAILY OPINION SERVICE SummARIES 10182

SUMMARIESCivil RightsPlaintiffs should have been afforded opportunity to substitute in proper party as to Fourth Amendment claim (Kozinski, J.)

Jones v. Las Vegas Metropolitan Police Department9th Cir.; October 20, 2017; 14-17388

The court of appeals affirmed in part and reversed in part a judgment. The court held that the district court abused its dis-cretion in denying plaintiffs the opportunity to amend their complaint to substitute in the proper party.

Anthony Jones died after Las Vegas Metropolitan police officers subjected him to taser shocks for over ninety sec-onds: Officer Mark Hatten tased Jones essentially nonstop that whole time—with some applications lasting as long as nineteen seconds—and, for ten of those seconds, Officer Timothy English simultaneously applied his taser. Jones’s parents sued the Las Vegas Metropolitan Police Department and the officers, alleging Fourth and Fourteenth Amend-ment violations as well as various state law torts. Defendants moved for summary judgment, arguing, among other things, that plaintiffs erred in naming Jones’ father as plaintiff in his personal capacity, rather than as administrator of Jones’ estate. The error, they contended mandated dismissal.

The district court granted summary judgment for defen-dants on all claims.

The court of appeals affirmed in part and reversed in part, holding that the district court erred under Fed. R. Civ. P. 17(a)(3) in denying plaintiffs an opportunity to substitute the prop-er party. Under Rule 17(a)(3), courts “may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be sub-stituted into the action.” Here, plaintiffs claimed they made an “honest and understandable mistake” by naming Jones’ estate and father as plaintiffs, rather than naming the father as administrator of Jones’ estate. The court agreed, finding the district court abused its discretion in failing to give plain-tiffs a reasonable opportunity to substitute the right party. On the facts presented, the court held further that the offi-cers were not entitled to summary judgment on their defense of qualified immunity as to plaintiffs’ Fourth Amendment claim. They were also not entitled to summary judgment as to plaintiffs’ state law battery and negligence claims. Judge N.R. Smith concurred except as to the majority’s Rule 17 analysis, finding no abuse of discretion in the district court’s dismissal of plaintiffs’ Fourth Amendment claims based on their failure to name the proper party in interest.

Class ActionsPlaintiff’s class data failed to establish compliance with requirements of CAFA’s home-state controversy exception (M.D. Smith, J.)

Brinkley v. Monterey Financial Services, Inc.

9th Cir.; October 20, 2017; 17-56335The court of appeals vacated a district court order and

remanded. The court held that the district court erred in ordering remand to state court where the plaintiff failed to establish that she met the requirements of the Class Action Fairness Act’s (CAFA) home-state controversy exception.

Monterey Financial Services, Inc., allegedly recorded or monitored its telephone conversations with Tiffany Brinkley without giving her notice. Brinkley sued Monterey in Cali-fornia state court, alleging (1) invasion of privacy in violation of California and Washington state law; (2) unlawful record-ing of telephone calls under California law; and (3) violation of California’s Unfair Competition Law. She brought her first and third claims on behalf of a class of “all persons who, while physically located or residing in California and Wash-ington, made or received one or more telephone calls with Monterey during the four year period preceding the filing of this lawsuit…and did not receive notice at the beginning of the telephone call that their telephone conversation may be recorded or monitored.” Monterey removed this action to federal district court.

Brinkley then moved to remand the case back to Califor-nia state court under CAFA’s home-state controversy excep-tion. The district court granted the motion.

The court of appeals reversed, holding that that Brinkley did not meet the requirements of CAFA’s home-state con-troversy exception because she did not prove that two-thirds of all class members were California citizens. The list relied on Brinkley included only those class members residing in either California or Washington, of which at least two-thirds were apparently California citizens. The list did not, howev-er, include those additional class members who were merely “physically located” in either state when they received Mon-terey’s calls. Brinkley did not submit any evidence regarding the “located in” subgroup. Without knowing the size of this subgroup, it was impossible to determine whether two-thirds of all class members were California citizens.


Consumer ProtectionCalifornia consumer may seek injunctive relief to prevent manufacturer’s continued false advertising (Murguia, J.)

Davidson v. Kimberly-Clark Corporation

9th Cir.; October 20, 2017; 15-16173The court of appeals reversed a district court judgment.

The court held that the prospect of a manufacturer’s contin-ued false advertising affords a California consumer standing to seek injunctive relief.

Jennifer Davidson paid extra for disposable, pre-moist-ened wipes labeled as “flushable.” She later discovered that the wipes were not, in fact, suitable for flushing and, if flushed, could cause damage to home plumbing and munici-pal wastewater treatment systems. Davidson sued manufac-turer Kimberly-Clark Corporation in California state court on behalf of herself and all similarly situated California con-sumers, seeking both to recover the premium she paid and to compel Kimberly-Clark to halt its false advertising. She asserted causes of action for common law fraud and for viola-tion of California’s Consumer Legal Remedies Act, False Ad-vertising Law, and Unfair Competition Law. Kimberly-Clark removed the case to federal court and moved to dismiss.

The district court granted the motion to dismiss, finding Davidson (1) failed to allege why the representation “flush-able” on the package was false; (2) failed adequately to allege harm, and (3) lacked standing to seek injunctive relief be-cause she was unlikely to purchase Kimberly-Clark’s flush-able wipes in the future.

The court of appeals reversed, holding that the district court erred in dismissing Davidson’s complaint. First, the complaint adequately alleged that Kimberly-Clark’s use of the word “flushable” was false because the wipes that David-son purchased did not adequately disperse, as a truly flushable product would have. The district court also erred in conclud-ing that Davidson failed to allege harm and how she came to believe the wipes were not flushable. Finally, because David-son’s allegations sufficiently identified a certainly impending risk of her continuing to be subjected to Kimberly-Clark’s allegedly false advertising, she had standing to pursue injunc-tive relief. Under California’s consumer protection laws, a consumer who pays extra for a falsely labeled or advertised product may not only recover the premium she paid for that product, but may also seek a court order requiring the manu-facturer of the product to halt its false advertising. Under California law, consumers have a right, while shopping in a store selling consumer goods, to rely upon the statements made on a product’s packaging. A consumer’s inability to rely in the future upon a representation made on a package, even if the consumer knew or continued to believe the same representation was false in the past, is an ongoing injury that may justify an order barring the false advertising. Judge Ber-

zon concurred, writing separately to question the necessity for duplicate standing analyses for each of the two forms of relief sought by Davidson–restitution and injunction.

Criminal LawData generated by GPS ankle monitor tracking system properly admitted at trial (Poochigian, J.)

People v. RodriguezC.A. 5th; October 19, 2017; F070900

The Fifth Appellate District affirmed a judgment. In the published portion of its opinion, the court held that the data generated by a GPS ankle monitor tracking system was prop-erly authenticated at trial and did not constitute hearsay.

Domingo Rodriguez was released from custody with an ankle monitor under the Kern County Sheriff’s Department’s electronic monitoring program (EMP). Rodriguez was not permitted to leave Kern County without permission. The an-kle monitor transmitted signals to the EMP’s computer track-ing system via GPS. The GPS signals showed that Rodri-guez repeatedly left Kern County without permission. When a deputy contacted Rodriguez, Rodriguez claimed he was a long-haul truck driver and had received permission to leave the county from an unnamed deputy. Rodriguez was arrested and charged with willfully and unlawfully escaping from the EMP. He was tried before a jury and convicted.

Rodriguez appealed, arguing the trial court erred in admit-ting evidence about the GPS data transmitted by Rodriguez’s electronic ankle monitor, including a printed report that stat-ed Rodriguez’s whereabouts while released under the EMP.

The court of appeal affirmed, holding that the evidence was both properly authenticated and nonhearsay. Sergeant Kessler from the EMP office testified extensively about his familiarity and knowledge of how the ankle monitor trans-mitted Rodriguez’s location through GPS data, the computer software used to track the ankle monitor and the GPS data, and how the GPS report was generated. Kessler also testified about the accuracy and reliability of the GPS report gener-ated from the ankle monitor’s signals. The trial court did not abuse its discretion in relying on Kessler’s testimony to au-thenticate the GPS data and admit the computer-generated re-port. Rodriguez’s hearsay objection to the report was unavail-ing. The report did not consist of statements of a person as defined by the Evidence Code, and did not constitute hearsay as statutorily defined. The ankle monitor automatically sent signals of Rodriguez’s location to the GPS, which automati-cally generated the computer data about Rodriguez’s location at the specific dates and times. There was thus no statement made by a person regarding the recorded data.


Land Use and PlanningClaim of “disguised” regulatory taking unsupported by established law (Dato, J.)

Dryden Oaks, LLC v. San Diego County Regional Airport AuthorityC.A. 4th; September 26, 2017; D069161

The Fourth Appellate District affirmed a judgment. The court held that a landowner could not state a claim for a “dis-guised” regulatory taking.

In 2001, Michael Durkin used two limited liability compa-nies—Dryden Oaks LLC and Durkin-CAC Lot 24, LLC—to purchase two lots directly adjacent to the McClellan Palomar Airport in the City of Carlsbad. His development plans for the two lots were initially successful despite determinations by the San Diego County Regional Airport Authority that the proposed projects were not compatible with the airport. Overriding the authority’s objections, the city issued com-mercial development permits for both lots. Durkin completed construction on one of the lots in 2005, but failed to failed to begin construction on the second lot before that permit ex-pired in 2012. By the time Durkin applied for another permit, the authority had adopted an Airport Land Use Compatibility Plan (ALUCP). The ALUCP designated Durkin’s proper-ties as being within a “safety zone” with specific limiting recommendations for compatible land uses. Despite having approved Durkin’s previous permit application, the city now refused to override the recommendations in the ALUCP.

Durkin filed an inverse condemnation action against the authority and the county, alleging the value of his prop-erty was depressed by the authority’s 2010 adoption of the ALUCP and decreased value constituted a governmental tak-ing. The trial court granted summary judgment in favor of defendants.

The court of appeal affirmed, holding that undisputed evi-dence shows there was no taking by these defendants. To the extent Durkin had any claim at all, it would have been against the city, which was the entity that denied his permit applica-tion. Nothing done by the authority or the county, however amounted to a taking of Durkin’s property. Durkin did not a physical invasion of his property. Nor did he allege that the adoption of the ALUCP denied him “all economically ben-eficial use” of the property. There was also no per se facial regulatory taking. Durkin nonetheless argued that adoption of the ALUCP constituted a “disguised” regulatory taking. There is no such separate category of taking, however, and the caselaw relied on by Durkin failed to establish such a category. Rather, the cited cases simply exemplify the various established categories of regulatory taking. Durkin’s claim that the ALUCP was “functionally equivalent to a class tak-ing” was simply unavailing.

Personal InjurySupervisory employee cannot order himself to perform special errand for employer while off-duty (Streeter, J.)

Morales-Simental v. Genentech, Inc.

C.A. 1st; September 22, 2017; A145865The First Appellate District affirmed a judgment. The court

held that a supervisory employee could not “order himself” to perform a special errand for his employer so as to render the employer liable for the employee’s off-duty activities.

Vincent Ong worked as a night shift supervisory employee for Genentech, Inc. His duties included participating in hir-ing decisions. He left his home to drive to Genentech around 3:00 a.m. on his night off, purportedly to pick up prospective employee resumes for review. En route, he was involved in a car accident in which one person was killed. The victim’s survivors filed a wrongful death action against Genentech, arguing that at the time of the collision Ong was on a special errand for Genentech.

The trial court granted summary judgment for Genentech.The court of appeal affirmed, holding that plaintiffs’

claims against Genentech were without merit. There was no evidence that anyone from Genentech requested that Ong drive to Genentech in the dead of night. Nor was there evi-dence Genentech authorized Ong’s trip by paying his travel expenses. Plaintiffs nonetheless argued that Ong, as a su-pervisory employee, had the authority to act on Genentech’s behalf and, in essence, order himself to complete a special errand connected to his employment duties. This argument was unsupported in the extensive body of going and coming case law. What plaintiffs proposed was an invitation to self-serving pretense by anyone with a plausible claim to super-visorial authority. Expanding the special errand rule to allow employees to request special errands of themselves on behalf of their employers would strip the employer of the ability to control when it will be liable for an employee’s off-shift activities. The court declined plaintiffs’ invitation to expand the special errand exception in this manner.


Products LiabilityPlaintiff’s expert testimony created triable issue of fact as to presence of asbestos in cosmetic talcum powder (Pollak, Acting P.J.)

Lyons v. Colgate-Palmolive Company

C.A. 1st; October 19, 2017; A150567The First Appellate District reversed a judgment. The

court held that plaintiff’s evidence created a triable issue of fact as to whether a manufacturer’s cosmetic talcum powder contained asbestos.

Mary Lyons filed a products liability action against Col-gate-Palmolive Company, alleging that her use of Colgate’s Cashmere Bouquet cosmetic talcum powder caused her to develop mesothelioma. Lyons alleged that she used the prod-uct regularly for more than 20 years, and that it contained asbestos. Colgate moved for summary judgment, arguing that its product did not contain asbestos. In opposition, Lyons proffered the expert testimony of geologist Sean Fitzgerald, who declared that talc from all three of the sources identified by Colgate as the sources of its talc was contaminated with asbestos in the mines from which it was sourced. Fitzgerald declared that he had “personally confirmed the presence of asbestos in all three mine sources and the Cashmere Bouquet products” and had further “repeatedly determined the pres-ence of asbestos in Cashmere Bouquet product samples in years of repeated testing by industry-standard asbestos ana-lytical techniques.”

The trial court granted Colgate’s motion for summary judgment.

The court of appeal reversed, holding that Lyons produced evidence creating a triable issue of fact as to whether she was exposed to asbestos through her use of Colgate’s Cashmere Bouquet powder. First, there was no question that Lyons was exposed to the product alleged to contain the asbestos. The undisputed evidence was that for some 20 years she regularly applied Cashmere Bouquet to her body. The only question was whether the Cashmere Bouquet contained asbestos. As to that critical issue, although Colgate produced evidence tending to show that its product did not contain asbestos, Fitzgerald’s testimony unquestionably created a triable is-sue that it did, even without considering any of plaintiff’s other evidence. On this record, the trial court erred in grant-ing summary judgment in favor of Colgate.

October 23, 2017 CALIFORNIA DAILY OPINION SERVICE NINth CIRCuIt COuRt OF APPEAL 10186

FULL TEXT OPINIONNinth Circuit Court of Appeals

Cite as 17 C.D.O.S. 10186

JOHNATHAN JONES, also known as John Leroy Jones; ROSIE LEE MATHEWS; ESTATE OF ANTHONY JONES, Plaintiffs-Appellants,

v. LAS VEGAS METROPOLITAN

POLICE DEPARTMENT; MARK HATTEN; TIMOTHY ENGLISH; RICHARD FONBUENA; STEVEN SKENANDORE, Defendants-Appellees.

No. 14-17388United States Court of Appeals for the Ninth CircuitD.C. No. 2:12-cv-01636-APG-CWH

Appeal from the United States District Court for the District of Nevada

Andrew P. Gordon, District Judge, PresidingArgued and Submitted December 15, 2016 San Francisco, CaliforniaFiled October 20, 2017Before: Alex Kozinski, Jay S. Bybee and N. Randy Smith,

Circuit Judges.Opinion by Judge Kozinski; Partial Concurrence and Partial Dissent by Judge N.R. Smith

COUNSEL

Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of Dale K. Galipo, Woodland Hills, California, for Plaintiffs-Appellants.

Craig R. Anderson (argued) and Micah S. Echols, Marquis Aurbach Coffing, Las Vegas, Nevada, for Defendants-Appellees.

OPINION KOZINSKI, Circuit Judge:

We consider whether police officers are entitled to quali-fied immunity when they’re alleged to have caused the death of a suspect by using tasers repeatedly and simultaneously for an extended period.

BACKGROUND1

In the early morning of December 11, 2010, Officer Mark Hatten of the Las Vegas Metropolitan Police Department pulled over Anthony Jones for a routine traffic stop. Hatten ordered Jones out of the car so he could pat him down for weapons. Jones obeyed at first but then started to turn toward Hatten. Scared of the much larger Jones, Hatten drew his fire-arm, pointed it at Jones and ordered him to turn back around. Instead, Jones sprinted away.

Hatten called for backup and pursued Jones. Hatten didn’t believe deadly force was necessary because Jones hadn’t threatened him and didn’t appear to have a weapon. As he waited for other officers to arrive, Hatten used his taser to subdue Jones. Hatten fired his taser twice, causing Jones’s body to “lock up” and fall to the ground face down with his hands underneath him. Hatten proceeded to kneel on Jones’s back in an attempt to handcuff Jones, keeping his taser pressed to Jones’s thigh and repeatedly pulling the trigger.

Hatten continued to tase Jones even after backup arrived. Backup consisted of four officers: Richard Fonbuena on Hat-ten’s right side, who helped handcuff Jones Steven Skenan-dore, who controlled Jones’s legs and feet Timothy English at Jones’s head, who applied a taser to Jones’s upper back and Michael Johnson, who arrived last and ordered the tas-ing to stop. Johnson wanted his officers to “back off on the tasers so that [Jones’s] muscles would relax.” According to Johnson, Jones “didn’t look like he was physically resisting” and there were “enough officers” to take Jones into custody. In all, Jones was subjected to taser shocks for over ninety seconds: Hatten tased Jones essentially nonstop that whole time—with some applications lasting as long as nineteen sec-onds—and, for ten of those seconds, English simultaneously applied his taser.

Once the officers stopped tasing Jones, his body went limp. They sat him up but Jones was nonresponsive and twitching; his eyes were glazed over and rolled back into his head. The officers tried and failed to resuscitate him. Jones was pronounced dead shortly thereafter. The coroner’s report concluded that “police restraining procedures”—including the tasings—contributed to Jones’s death.

Jones’s parents sued the Las Vegas Metropolitan Police Department and all of the officers involved in restraining Jones. They alleged Fourth and Fourteenth Amendment vio-lations as well as various state law torts. The district court granted summary judgment for the defendants on all claims.

1. At summary judgment, we “view the evidence in the light most favorable” to the nonmoving party and draw all reasonable inferences in that party’s favor. Newmaker v. City of Fortuna, 842 F.3d 1108, 1111 (9th Cir. 2016). “[Excessive] force cases pose a particularly dif-ficult problem” under this standard when the defendant officers are the only surviving witnesses. Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). To ensure that the officers don’t “tak[e] advantage of the fact that the witness most likely to contradict [their] story . . . is unable to testify,” we “may not simply accept what may be a self-serving ac-count by the police officer;” we must verify that account with circum-stantial and objective evidence in the record. Id.


Because plaintiffs make no arguments regarding the district court’s dismissal of the Monell claim against the police de-partment, we deem that claim waived. See Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017). Plaintiffs also voluntarily dismissed their claims against Officers Fonbuena and Skenandore, so we consider only the claims against Of-ficers Hatten and English.

ANALYSIS

A. Rule 17 Relief Fourth Amendment claims are “personal” and may not be

“vicariously asserted.” Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998). Section 1983 ac-tions, however, may be brought by “the survivors of an indi-vidual killed as a result of an officer’s excessive use of force,” provided state law authorizes a survival action. Id. (citing 42 U.S.C. § 1988(a)). Nevada authorizes survival actions by the “executor or administrator” of a decedent’s estate. Nev. Rev. Stat. § 41.100(3) (1997); see also Moreland, 159 F.3d at 369–70. Plaintiffs didn’t assert their Fourth Amendment claims as executor or administrator of Jones’s estate and thus didn’t have standing to bring these claims. The district court denied relief under Rule 17 by refusing to provide plaintiffs an opportunity to substitute the proper party. We review Rule 17 determinations for abuse of discretion. Esposito v. United States, 368 F.3d 1271, 1273 (10th Cir. 2004).

Courts “may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objec-tion, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action.” Fed. R. Civ. P. 17(a)(3). The purpose of the rule is “to prevent for-feiture of a claim when an honest mistake was made.” Good-man v. United States, 298 F.3d 1048, 1054 (9th Cir. 2002); see also 6A Charles Alan Wright et al., Federal Practice and Procedure § 1555 (3d ed. 2017) (noting the “judicial ten-dency to be lenient when an honest mistake has been made in selecting the proper plaintiff”). This is consistent with our longstanding policy in favor of deciding cases on the merits. See, e.g., Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996); Russell v. Cunningham, 279 F.2d 797, 804 (9th Cir. 1960).

Defendants argued in their summary judgment motion that neither Jones’s father nor the estate had standing to bring Fourth Amendment claims. Plaintiffs responded that the complaint did name parties with standing—the father and the estate, because the father was the administrator of the estate. This was wrong under Nevada law, which called for naming the father as administrator. Plaintiffs thus named the right person but in the wrong capacity. The district court cor-rectly determined that no proper plaintiff had been named for the Fourth Amendment claims.

We have held that Rule 17 relief is available where counsel makes an “understandable” error in naming the real party in interest. Goodman, 298 F.3d at 1053–54. Plaintiffs claim they made an “honest and understandable mistake” by naming

Jones’s estate and father as plaintiffs (rather than naming the father as administrator of Jones’s estate) because the district court had approved a stipulation amending their complaint to name Jones’s estate as a plaintiff.2 While this is hardly the best excuse, it was not unreasonable for plaintiffs to have construed the district court’s approval of the stipulation as a determination that they had named the proper party. The dis-trict court’s summary judgment ruling disabused plaintiffs of this notion. Once this occurred, Rule 17 required the district court to give plaintiffs a reasonable opportunity to cure their error: A court “may not dismiss an action for failure to pros-ecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed.” Fed. R. Civ. P. 17(a)(3) (emphasis added). Rather than enter judgment im-mediately after noting the deficiency, the district court should have given plaintiffs a reasonable opportunity to substitute the right party. See, e.g., Esposito, 368 F.3d at 1272 (revers-ing district court’s dismissal because plaintiff’s mistake was honest, even if not understandable, so court was required to give plaintiff an opportunity to substitute); Jaramillo v. Bur-khart, 999 F.2d 1241, 1246 (8th Cir. 1993) (reversing district court’s dismissal because plaintiff wasn’t given a reason-able opportunity to substitute); Kilbourn v. West. Sur. Co., 187 F.2d 567, 571–72 (10th Cir. 1951) (reversing summary judgment so that real party in interest could be substituted); cf. Kuelbs v. Hill, 615 F.3d 1037, 1042–43 (8th Cir. 2010) (holding that district court gave plaintiffs reasonable time to substitute party when it ordered them to address the issue and waited six months before dismissing).3

The district court noted a “disconnect” between the date plaintiffs claimed their probate order appointing Jones’s fa-ther as administrator was filed and the actual filing date of that order. See supra note 2. But this “disconnect” had little to do with plaintiffs’ honest mistake—naming the estate, not the administrator of the estate, as a plaintiff—for which our case law requires relief under Rule 17. See, e.g., Goodman, 298 F.3d at 1053–54. Plaintiffs explained that they thought they had named the proper plaintiffs, and they did have the probate order signed—though not filed—at the time of the first amended complaint. They were entitled to a reasonable amount of time to correct their error.

2. Plaintiffs filed an amended complaint representing that Jones’s father had “filed the necessary documents . . . to be appointed as the special administrator” of the estate. Although the petition and order appointing Jones’s father as special administrator appears to have been signed and dated at that time, the document is stamped with a filing date a few months later. Nevertheless, Jones’s father was the adminis-trator by the time the district court entered judgment against plaintiffs. The problem is that he wasn’t named as such in the complaint.

3. Defendants argue that plaintiffs received the necessary notice earlier when defendants pointed out the deficiency in their motion for summary judgment. But plaintiffs disputed defendants’ interpretation of the proper party, and plaintiffs’ interpretation, though ultimately wrong, wasn’t frivolous. Plaintiffs were entitled to await the district court’s ruling before being deemed to have received notice for pur-poses of Rule 17. Holding otherwise would pressure plaintiffs to adopt their opponents’ interpretation even if they’re convinced that they did everything right.


Within five days of the district court’s ruling, plaintiffs filed a motion seeking leave to do so. They represented that they had the proper party ready to substitute in the action because Jones’s father was the administrator of the estate. Although they relied on Rule 15, the motion was one they were permitted to file under Rule 60(b)(1) and sought re-lief to which they were entitled under Rule 17. Defendants haven’t argued that the citation to the wrong rule prejudiced them in any way. The district court didn’t rule on this motion until months after plaintiffs had filed their timely notice of appeal, which deprived the district court of jurisdiction.

Consistent with the text of Rule 17 and our case law in-terpreting it, we conclude that the district court abused its discretion by failing to give plaintiffs a reasonable opportu-nity to substitute the proper party and thus cure the defective complaint.

B. Qualified Immunity

Defendants argue that we should nonetheless affirm the district court’s judgment on qualified immunity grounds. Al-though the district court didn’t reach the issue on the relevant Fourth Amendment claims, both parties briefed it below, so the issue is ripe for our consideration. Because the issue will no doubt arise on remand, we exercise our discretion to re-view it.

“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their con-duct does not violate clearly established statutory or con-stitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation omitted). To overcome a claim of immunity, plain-tiffs must plead “facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “A Govern-ment official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’” Id., at 741 (alteration in original) (quoting Ander-son v. Creighton, 483 U.S. 635, 640 (1987)). The Supreme Court doesn’t “require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Id.

1. Reasonable Conduct In evaluating Fourth Amendment claims, we ask whether

the officers’ conduct was reasonable under the circumstanc-es. See Scott v. Harris, 550 U.S. 372, 383 (2007). Viewing the facts in the light most favorable to plaintiffs, see Saucier v. Katz, 533 U.S. 194, 201–02 (2001), we must determine whether the officers’ conduct was reasonable using the Su-preme Court’s Graham v. Connor factors: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he

is actively resisting arrest or attempting to evade arrest by flight.” 490 U.S. 386, 396 (1989). The most important factor is whether the suspect posed an immediate threat. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) [here-inafter Mattos II]. In examining the threat, “a simple state-ment by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.” Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001). “A desire to resolve quickly a potentially dangerous situation is not the type of governmental interest that, standing alone, justifies the use of force that may cause serious injury.” Id.

Here the officers’ use of force began appropriately enough: Despite Jones’s large size and the fact that he had run away from a traffic stop, he had neither threatened Hat-ten nor committed a serious offense, and he didn’t appear to have a weapon. Based on these facts, Hatten believed that something less than deadly force was justified, so he used his taser to subdue Jones. This decision was consistent with our case law, as we’ve held that use of tasers can be intermediate force. See Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). Using a taser to stop Jones and place him under arrest was reasonable under the circumstances.

As the situation evolved, however, the justification for the use of force waned. The four other officers at the scene gave somewhat inconsistent accounts about their continued use of force. What is clear is that Hatten continued to apply his taser to Jones and English also applied his taser twice, even as Jones was being handcuffed. By the time Jones was prone and surrounded by multiple officers, there would have been no continuing justification for using intermediate force: Jones was on the ground after his body “locked up” as a result of repeated taser shocks; he had no weapon and was making no threatening sounds or gestures. There is a triable issue of fact as to whether the officers were reasonable in the degree of force they deployed at that point.

Evidence presented at summary judgment would support a jury finding that the officers’ repeated and simultaneous use of tasers for over ninety seconds was unreasonable. Taser International provided users with product warnings that the risk of “serious injury or death” from tasers increases with multiple and simultaneous applications. Hatten testified that such use was discouraged, though not forbidden, by the Las Vegas Metropolitan Police Department. Consistent with Taser’s product warnings, the officers were instructed that repeated taser applications could contribute to serious injury or death, particularly when the target is subject to certain risk factors, like struggling, being overweight or using drugs or alcohol. The officers knew that Jones was subject to two of these risk factors: He was overweight and struggled.

Plaintiffs also presented a declaration from a police prac-tices expert who opined that reasonably trained officers would have known that repeated and simultaneous taser use poses a risk of serious injury or death. The expert further ex-plained that “[t]he normal cycle for the X-26 taser is five (5)


seconds” but that the taser will continue to discharge electric-ity “as long as the operator holds the trigger down.” Hatten’s X-26 taser frequently went past the five-second application cycle—with some shocks lasting eleven seconds, thirteen seconds (twice) and nineteen seconds. This left burn marks on Jones’s thigh, forearm and hand.

Based on this evidence, a jury could reasonably conclude that the officers knew or should have known that their use of tasers created a substantial risk of serious injury or death. Thus, there are triable issues of fact as to whether the of-ficers’ continuous and simultaneous tasing was reasonable under the circumstances, and whether the officers were on notice that the force they used could cause serious injury or death.4

2. Clearly Established Law Because defendants may have committed constitutional

violations, we turn to the second element of qualified im-munity: whether there was clearly established law. Defen-dants rely on Brooks v. City of Seattle, 599 F.3d 1018 (9th Cir. 2010), vacated on reh’g en banc sub nom., Mattos II, 661 F.3d 433, as clearly established law on tasers at the time of Jones’s death. In that case, we held that it wasn’t exces-sive to use three five-second shocks on a pregnant woman who was resisting arrest after a traffic stop. Id. at 1030–31. We explained that taser use in that case was “less than . . . intermediate” force because it was “more on par with pain compliance techniques.”5 Id. at 1027–28. But, as we explain above, continuous, repeated and simultaneous tasings are dif-ferent from isolated shocks.6 Any reasonable officer would have known that such use can only be justified by an immedi-ate or significant risk of serious injury or death to officers or

4. We’ve held that a single taser shot can “intrude[] upon the vic-tim’s physiological functions and physical integrity in a way that other non-lethal uses of force do not.” Bryan, 630 F.3d at 825–26. In light of this, “we agree[d] with the Fourth and Eighth Circuit’s characteriza-tion of a taser shot [and] . . . therefore conclude[d] that tasers like the X[-]26 constitute an ‘intermediate . . . quantum of force.’” Id. (cita-tions omitted). Here, Officers Hatten and English went far beyond a single shot: They discharged their tasers multiple times and simultane-ously. This may raise the “quantum of force.”

5. Brooks was overturned when it was taken en banc in 2011. We held that a reasonable fact finder could conclude that the use of force was excessive. Mattos II, 661 F.3d at 446. We noted the “overwhelm-ingly salient factor” was that Brooks was tased three times in less than one minute. Id. at 445. “Three tasings in such rapid succession provided no time for Brooks to recover from the extreme pain she experienced, gather herself, and reconsider her refusal to comply.” Id. Three tasings in less than one minute allow for over twenty seconds between shocks. That’s materially different from continuous use for ninety seconds.

6. Defendants also rely on Marquez v. City of Phx., 693 F.3d 1167 (9th Cir. 2012), a post-Mattos II case involving the repeated use of a single taser. Their reliance is misplaced. There we found that the of-ficers were justified in tasing the decedent with nine five-second appli-cations because the decedent was resisting violently and posed a seri-ous threat to the officers and others. Id. at 1174–76. Jones, by contrast, offered no resistance and was lying face down on the ground. Marquez also didn’t involve simultaneous and prolonged taser applications, as occurred here.

the public. See, e.g., Scott, 39 F.3d at 914 (“An officer’s use of deadly force is reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”) (internal quotation marks and citation omitted). Such force generally can’t be used on a prone suspect who exhibits no resistance, carries no weapon, is surrounded by sufficient of-ficers to restrain him and is not suspected of a violent crime.

Given that there was clearly established Fourth Amend-ment law and a jury could reasonably conclude that the offi-cers used excessive force, the question of qualified immunity must proceed to trial.7

C. Fourteenth Amendment Claim

The district court granted summary judgment on plain-tiffs’ Fourteenth Amendment claim both on the merits and because it found that parents of an adult child lack a cogni-zable constitutional claim as to police mistreatment of that child. But our case law does recognize such a constitutional claim. See, e.g., Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1169 (9th Cir. 2013) (“[W]e have recognized a parent’s right to a child’s companionship without regard to the child’s age.”) (collecting cases).

Because parents have a constitutionally protected inter-est in the companionship of their children, id. at 1168–69, “[o]fficial conduct that ‘shocks the conscience’ in depriving parents of that interest is cognizable as a violation of due pro-cess.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) (citation omitted). In cases like this, where officers must react quickly to a rapidly changing situation, the test is whether the officers acted with a purpose of causing harm unconnected to any legitimate law enforcement objective. See Porter v. Osborn, 546 F.3d 1131, 1137, 1140 (9th Cir. 2008).

Even assuming all the facts plaintiffs allege, there’s no evidence that the officers acted with a purpose of harming Jones that was unconnected to a legitimate law enforcement

7. Plaintiffs raise a separate Fourth Amendment claim: Hatten lacked reasonable suspicion to stop Jones’s vehicle in the first place. Officers are required to have at least reasonable suspicion to stop a vehicle for investigatory purposes. Delaware v. Prouse, 440 U.S. 648, 663 (1979); United States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir. 2000). Hatten claimed that he pulled Jones over for driving without his headlights on and failing to stop at a red light. But Hatten’s account of the stop changed between his initial “use of force” interview with the police department and his deposition. At first, Hatten justified the stop based only on Jones’s headlights and said that Jones had stopped at the light. Surveillance video of the traffic stop, however, showed that Jones’s headlights were on when Hatten stopped him. In his deposition, Hatten then claimed that Jones turned his lights on once Hatten started following him, and that he pulled Jones over after he observed Jones perform what he called “a California rolling stop” at a red light before making a right turn. These changes in Hatten’s account undermine his credibility and preclude us from accepting his testimony at face value. See supra note 1. There’s thus a triable issue of fact as to whether the stop was supported by reasonable suspicion. Fourth Amendment juris-prudence on traffic stops is well-established, so Hatten isn’t entitled to qualified immunity on that claim. We make no judgment as to whether plaintiffs are entitled to assert this claim through their survivorship action, or if there are any damages available.


objective. Therefore, we affirm the district court’s dismissal of the Fourteenth Amendment claim.

D. State Law Claims

Plaintiffs also present state law claims for false arrest/im-prisonment, battery and negligence. The district court held that Nevada’s discretionary immunity statute shielded the officers from liability. The statute precludes claims against state officers based on acts or omissions relating to a “dis-cretionary function,” even if that discretion is abused. Nev. Rev. Stat. § 41.032(2) (1987). But decisions made in bad faith, such as “abusive” conduct resulting from “hostility” or “willful or deliberate disregard” for a citizen’s rights, aren’t protected under the immunity statute even if they arise out of a discretionary function. Davis v. City of Las Vegas, 478 F.3d 1048, 1060 (9th Cir. 2007).

Because clearly established law isn’t an element in the state immunity analysis, we look only to whether a reason-able jury could find that the officers’ use of force indicated hostility or willful disregard of Jones’s rights. Considering all of the facts alleged in the light most favorable to plaintiffs, we find that there’s a triable issue of fact with regards to the battery and negligence claims. See Mattos II, 661 F.3d at 448 n.8 (denying state immunity for assault and battery claims because a jury could find that the use of force was excessive and violated state law, even though the federal claims were barred by qualified immunity). While there’s no evidence that any of the officers acted out of hostility or improper mo-tive, there’s a factual dispute as to whether the repeated and simultaneous tasings were so excessive under the circum-stances that they amounted to willful or deliberate disregard of Jones’s rights. We therefore remand plaintiffs’ battery and negligence claims.

The false arrest/imprisonment claim, however, fails, even viewing the facts in the light most favorable to plaintiffs. In Nevada, false arrest/imprisonment requires the arrestor to restrain another’s “liberty under the probable imminence of force without any legal cause or justification.” Hernandez v. City of Reno, 634 P.2d 668, 671 (Nev. 1981) (citation and quotation marks omitted). Officer Hatten restrained Jones with sufficient legal justification: Jones fled from Hatten dur-ing a routine traffic stop. There’s no evidence that Hatten’s subsequent decision to arrest Jones lacked justification—let alone that it was made in bad faith. We affirm the dismissal of the false arrest/imprisonment claim.

AFFIRMED IN PART, REVERSED IN PART. No costs.

N.R. SMITH, Circuit Judge, concurring in part and dissenting in part:

I cannot conclude, as the majority does, that the district court abused its discretion in dismissing Plaintiffs’ Fourth Amendment claims because the Plaintiffs failed to name the

proper party in interest.8 “A district court abuses its discretion when it makes an error of law, when it rests its decision on clearly erroneous findings of fact, or when we are left with a definite and firm conviction that the district court commit-ted a clear error of judgment.” United States v. 4.85 Acres of Land, More or Less, Situated in Lincoln Cty., Mont., 546 F.3d 613, 617 (9th Cir. 2008) (internal quotation marks and citation omitted). None of these errors occurred in the district court’s Rule 17 analysis. Further, we cannot reverse the dis-trict court under the abuse of discretion standard unless “the district court reache[d] a result that is illogical, implausible, or without support in the inference that may be drawn from the record.” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010).

The district court dismissed the first and second claims for relief (the Fourth Amendment claims) for lack of stand-ing based on Federal Rule of Civil Procedure 17. Rule 17(a)(1) provides that an action cannot be prosecuted unless it is asserted by the real party in interest. Thus, under Rule 17, a claim must be dismissed if it is not brought by the real party in interest. See Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir. 1997). The parties agree that the named Plaintiffs (Johnathan Jones, Rosie Lee Mathews, and the Estate of Anthony Jones) are not the proper parties to assert the Fourth Amendment claims. Thus, we start with the assumption that these claims must be dismissed. The named parties do not have standing to bring them.

Rule 17(a)(3) does provide a limited exception to this general rule. Rule 17(a)(3) provides that, (1) “when deter-mination of the right party to sue is difficult,” or (2) when an understandable mistake [in naming the real party in interest] has been made,” see U.S. for Use & Benefit of Wulff v. CMA, Inc., 890 F.2d 1070, 1074 (9th Cir. 1989) (citing Note of Ad-visory Committee on 1966 Amendment to Fed. R. Civ. P. 17), courts “may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in inter-est to ratify, join, or be substituted into the action,” Fed. R. Civ. P. 17(a)(3).

Because the district court did not commit legal error or reach an illogical or implausible decision in determining that the Rule 17(a)(3) exception does not apply in this case, we must affirm the district court (given our standard of review). Further, even assuming the Rule 17(a)(3) exception does apply, we must still affirm, because the district court satis-fied the requirements of Rule 17(a)(3) before dismissing the Fourth Amendment claims. Finally, the Plaintiffs have never made the argument that the majority now articulates for them.

A.

The district court did not abuse its discretion in determin-ing that the Rule 17(a)(3) exception does not apply to this case. The majority does not contend that “determination of

8. I concur with all aspects of the majority opinion except for the Rule 17 analysis.


the right party to sue” was difficult; indeed, that contention would have been difficult (if not impossible) to make. Ne-vada law plainly states who can bring a survival action. See Nev. Rev. Stat. § 41.100(3). The majority instead concludes that the district court abused its discretion in concluding that Plaintiffs’ mistake was not “understandable.”9 According to the majority, it was understandable that Plaintiffs believed that they had named the proper party (in the proper capac-ity), because the district court had approved a stipulation that would amend their complaint to name Decedent’s estate as a plaintiff. The district court did not refuse this reasoning il-logically, implausibly, or without support for several reasons.

First, the district court correctly reasoned that the law was so clear that the mistake was not understandable. The Nevada law does not allow an estate to bring a survival action. Yet Plaintiffs insisted in their briefs to the district court—without ever citing any legal authority—that “the Estate of Anthony Jones is a party that can assert its own claims for relief.” This insistence, without support, that no defect existed, was plainly wrong. Even the majority agrees.

Second, although the district court approved a stipulation allowing Plaintiffs to amend the complaint to add the Es-tate of Anthony Jones as a plaintiff, the district court never stated or determined that the Estate of Anthony Jones was the proper party to bring the Fourth Amendment claims. In fact, the stipulation did not mention the Fourth Amendment claims and, when the stipulation was proposed and signed, any issues over the proper party in interest had never been raised. Thus, it was not reasonable for Plaintiffs to interpret the approved stipulation as an endorsement of the propriety of their Amended Complaint.

Third, the district court found the reasons given for Plain-tiffs’ mistake to be disingenuous. Plaintiffs asserted in their original and Amended Complaint that Johnathan Jones had “filed the necessary documents with the Clark County Pro-bate Court to be appointed as the special administrator of THE ESTATE OF ANTHONY JONES.” However, after the motion for summary judgment was filed, it was clear that Johnathan Jones had not in fact filed the necessary docu-ments to complete this process. Nevertheless, in Plaintiffs briefs to the district court, they continually insisted that their original assertion was accurate. Also important, Plaintiffs never explained to the district court why they had to add the Estate of Anthony Jones as a plaintiff if Johnathan Jones had filed all the necessary documents to have legal standing to bring the Fourth Amendment claims.

In sum, it was not an abuse of discretion for the district court to conclude that Plaintiffs’ mistake was not understand-able when it was based on an unfounded interpretation of the law and an inaccurate account of the facts.

9. Although not explicitly stated, the majority also appears to expand Rule 17’s application to every “honest mistake,” even if that mistake was the product of willful blindness to the law’s requirements or lack of due diligence. Such an expansion is improper, because it is unsupported by our case law.

B.

Even assuming that Plaintiffs had made an “understand-able mistake,” the district court did not abuse its discretion in dismissing the Fourth Amendment claims. The district court gave Plaintiffs ample time to substitute the real party in inter-est, as Rule 17(a)(3) requires. Rule 17 requires district courts to give plaintiffs “a reasonable time” to substitute the real party “after an objection” has been made. Defendants first objected that the real party in interest had not been named in their motion for summary judgment, filed on Novem-ber 8, 2013. And yet, Plaintiffs did not seek to amend their complaint to name Johnathan Jones in his capacity as spe-cial administrator of Decedent’s estate until November 11, 2014—after the district court granted Defendants’ motion for summary judgment on November 6, 2014. Thus, Plain-tiffs had a year to substitute the real party in interest after an objection was made. The plain language of Rule 17 does not require district courts to give plaintiffs “a reasonable time” to substitute the real party in interest after the court has notified them that the real party in interest has not been named (as the majority suggests). Thus, the district court did not commit legal error (and did not abuse its discretion) in dismissing the Fourth Amendment claims after giving Plaintiffs a year after the objection was made to substitute the real party in interest.

Moreover, Plaintiffs’ actions show they were on notice that they had not named the proper party. Just ten days after Defendants objected (on November 18, 2013), Plaintiffs filed (in Nevada state court) the ex parte order naming Johnathan Jones as special administrator of decedent’s estate, which had been signed (but not filed) seven months earlier—on April 9, 2013. This filing finally gave legal effect to the order. See Rust v. Clark Cty. Sch. Dist., 747 P.2d 1380, 1382 (Nev. 1987). Thus, on November 18, 2013, Johnathan Jones gained the proper legal status to bring the Fourth Amendment claims. However, Plaintiffs never sought to amend the complaint to name the real party in interest until November 11, 2014, even though (1) Johnathan Jones gained the proper legal status a year earlier, and (2) Plaintiffs had previously acknowledged in their brief to the district court that Nevada Revised Statute section 41.100(3) extends the right to bring a survival action to the official representatives of an individual’s estate. Thus, Plaintiffs were given more than a reasonable amount of time to substitute the real party in interest after they became aware that Johnathan Jones did not have the proper status to as-sert the Fourth Amendment claims. Accordingly, the district court did not commit an error of law (and did not otherwise abuse its discretion) in concluding that Rule 17(a)(3) did not prevent the district court from dismissing the Fourth Amend-ment claims.

C.

Finally, the district court cannot have abused its discretion in failing to grant relief that was never requested. Plaintiffs have never argued to the district court that Rule 17(a)(3) re-quired the district court to allow them to name Johnathan


Jones, as administrator of Anthony Jones’s estate, as a party. Even after the district court granted Defendants’ motion for summary judgment, Plaintiffs still did not ever assert a Rule 17 defense; instead, they filed a Rule 15 motion and asserted that “justice requires leave to amend.” Thus, Plaintiffs have never even attempted to articulate to the district court why their mistake in not naming the proper party in interest was “understandable.”

I agree that it is best to decide cases on the merits and I agree that, absent this unreasonable mistake in failing to name the proper party, this case should proceed to trial. However, the majority here ignores the standard of review in reversing the district court’s Rule 17 decision. Instead, it reverses the district court on an argument never made by anyone but it.

For all of these reasons, I would affirm the district court’s decision to dismiss the Fourth Amendment claims pursuant to Rule 17.


JENNIFER DAVIDSON, an individual on behalf of herself, the general public and those similarly situated, Plaintiff-Appellant,

v.KIMBERLY-CLARK CORPORATION;

KIMBERLY-CLARK WORLDWIDE, INC.; KIMBERLY-CLARK GLOBAL SALES, LLC, Defendants-Appellees.

No. 15-16173United States Court of Appeals for the Ninth CircuitD.C. No. 4:14-cv-01783-PJH

Appeal from the United States District Court for the Northern District of California

Phyllis J. Hamilton, Chief Judge, PresidingArgued and Submitted May 18, 2017 San Francisco, CaliforniaFiled October 20, 2017Before: Marsha S. Berzon and Mary H. Murguia, Circuit

Judges, and Jon P. McCalla,*District J udge.Opinion by Judge Murguia; Concurrence by Judge Berzon

*The Honorable Jon P. McCalla, United States District Judge for the Western District of Tennessee, sitting by designation.

COUNSEL Matthew T. McCrary (argued), Kristen G. Simplicio,

Seth A. Safier, and Adam J. Gutride, Gutride Safier LLP, San Francisco, California, for Plaintiff-Appellant.

Constantine L. Trela, Jr. (argued), Sidley Austin LLP, Chicago, Illinois; Michelle Goodman and Amy Lally, Sidley Austin LLP, Los Angeles, California; Naomi Igra, Sidley Austin LLP, San Francisco, California; for Defendants- Appellees.

OPINION MURGIA, Circuit Judge:

Under California’s consumer protection laws, a consumer who pays extra for a falsely labeled or advertised product may recover the premium she paid for that product. California law also permits that consumer to seek a court order requiring the manufacturer of the product to halt its false advertising. California has decided that its consumers have a right, while shopping in a store selling consumer goods, to rely upon the statements made on a product’s packaging. Today, we hold that California consumers who can seek in California state


court an order requiring the manufacturer of an allegedly falsely advertised product to cease the false advertising may also seek such an order in federal court. A consumer’s in-ability to rely in the future upon a representation made on a package, even if the consumer knew or continued to believe the same representation was false in the past, is an ongoing injury that may justify an order barring the false advertising.

In this case, Jennifer Davidson paid extra for wipes la-beled as “flushable” because she believed that flushable wipes would be better for the environment, and more sani-tary, than non-flushable wipes. Davidson alleges that the wipes she purchased, which were manufactured and market-ed by Kimberly-Clark Corporation, were not, in fact, flush-able. Davidson seeks to recover the premium she paid for the allegedly flushable wipes, as well as an order requiring Kimberly-Clark to stop marketing their wipes as “flushable.” Davidson has plausibly alleged that Kimberly-Clark engaged in false advertising. Davidson has also plausibly alleged that she will suffer further harm in the absence of an injunction. We therefore reverse the district court and remand this case for further proceedings.

I. BACKGROUND

A. Factual Allegations1

Defendants-appellees Kimberly-Clark Corporation, Kim-berly-Clark Worldwide, Inc., and Kimberly-Clark Global Sales, LLC (collectively “Kimberly-Clark”) manufacture and market four types of pre-moistened wipes: Cottonelle Wipes, Scott Wipes, Huggies Wipes, and Kotex Wipes. Each of the four products are marketed and sold as “flushable.” Kim-berly-Clark charges a premium for these flushable wipes, as compared to toilet paper or wipes that are not marketed as “flushable.” Each of the four flushable wipes products con-tains a statement on the package (or on the website associated with the product) stating, in various ways, that the product “breaks up after flushing.”

In 2013, Davidson was shopping at a Safeway in San Francisco when she came across Scott Wipes. Davidson saw the word “flushable” on the Scott Wipes package and noticed that the Scott Wipes were more expensive than wipes that did not have the word “flushable” on the package. According to Davidson, flushable ordinarily means “suitable for disposal down a toilet,” not simply “capable of passing from a toilet to the pipes after one flushes.” Davidson maintains that this ordinary meaning of flushable is understood by reasonable consumers, who expect a flushable product to be suitable for disposal down a toilet. Consistent with that understanding, the Merriam-Webster dictionary defines flushable as “suit-able for disposal by flushing down a toilet,” and a nonprofit organization of water quality professionals states that a flush-

1. The following allegations are taken from the operative first amended complaint (“FAC”). At this stage of the proceedings, we must “accept as true all well-pleaded allegations of material fact, and construe them in the light most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).

able item must completely disperse within five minutes of flushing. In other words, “truly flushable products, such as toilet paper, . . . disperse within seconds or minutes.”

Davidson was concerned about products that were not suitable for flushing because she remembered hearing sto-ries about people flushing items that should not be flushed, which then caused problems with home plumbing systems and municipal wastewater treatment facilities. Davidson did not want to cause such damage to her plumbing or to San Francisco’s wastewater treatment facilities. Davidson re-viewed the front and back of the Scott Wipes package and did not see anything indicating that the wipes were not suitable for flushing. Believing it would be easier and more sanitary to flush wipes than to throw them in the garbage, Davidson purchased the Scott Wipes.

Once Davidson began using the Scott Wipes, she noticed that each wipe felt sturdy and thick, unlike toilet paper. Da-vidson also noticed that the wipes did not disperse in the toi-let bowl like toilet paper. After using the wipes several times, Davidson became concerned that the wipes were not truly flushable, so she stopped using the Scott Wipes altogether. Davidson investigated the matter further and learned that flushable wipes caused widespread damage to home plumb-ing and municipal sewer systems. This research “further[ed] her concerns that the [Scott] Wipes were not in fact appropri-ate for disposal by flushing down a toilet.”

Davidson has never again purchased flushable wipes. Yet Davidson “continues to desire to purchase wipes that are suit-able for disposal in a household toilet,” and “would purchase truly flushable wipes manufactured by [Kimberly-Clark] if it were possible to determine prior to purchase if the wipes were suitable to be flushed.” Davidson regularly visits stores that sell Kimberly-Clark’s flushable wipes but is unable to determine, based on the packaging, whether the wipes are truly flushable. Davidson would not have purchased the Scott Wipes, or would have paid less for the Scott Wipes, had Kim-berly-Clark not “misrepresented (by omission and commis-sion) the true nature of their Flushable Wipes.”

In addition to her experience with the Scott Wipes she purchased, Davidson alleges more broadly that all four flush-able wipes products Kimberly-Clark manufactured and mar-keted “are not in fact flushable, because the wipes are not suitable for disposal by flushing down a household toilet.” Kimberly-Clark manufactures these products with strong fi-bers that do not efficiently disperse when placed in a toilet. Kimberly-Clark’s own testing demonstrates that the flushable wipes products break down in water at a significantly lower rate than toilet paper. Numerous news stories describe how flushable wipes have clogged municipal sewage systems, thereby requiring costly repairs. Consumers who have pur-chased some of the Kimberly-Clark flushable wipes products have lodged complaints on Kimberly-Clark’s website that the flushable wipes damaged their septic tanks or plumbing.

Based on these allegations, Davidson brought four Cali-fornia state law causes of action against Kimberly-Clark,


including for common law fraud and for violations of the Consumer Legal Remedies Act (“CLRA”), California Civil Code § 1750, et seq., False Advertising Law (“FAL”),

California Business & Professions Code § 17500, et seq., and Unfair Competition Law (“UCL”), California Business & Professions Code § 17200, et seq. Davidson sought resti-tution, injunctive relief, and actual, punitive, and statutory damages on her CLRA claim; restitution and injunctive relief on her FAL and UCL claims; and compensatory and punitive damages on her common law fraud claim. Davidson sought to certify a class of all persons who purchased Cottonelle Wipes, Scott Wipes, Huggies Wipes, and Kotex Wipes in California between March 13, 2010 and the filing of the FAC on September 5, 2014.

B. Procedural History

Davidson initially filed this case in state court, but Kim-berly-Clark removed it to federal court pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). The district court denied in part and granted in part Kimberly-Clark’s motion to dismiss the original complaint. In response, Da-vidson filed the operative FAC. Kimberly-Clark moved to dismiss the FAC, and the district court granted the motion, this time with prejudice. First, the district court granted Kim-berly-Clark’s Federal Rule of Civil Procedure (“Rule”) 12(b)(1) motion to dismiss Davidson’s injunctive relief claims, finding that Davidson lacked standing to seek injunctive re-lief because she was unlikely to purchase Kimberly-Clark’s flushable wipes in the future. Second, the district court grant-ed Kimberly-Clark’s motion to dismiss the FAC pursuant to Rules 9(b) and 12(b)(6), concluding that Davidson had failed to adequately allege why the representation “flushable” on the package was false. Finally, the district court concluded that Davidson “failed to allege damage under the UCL/FAL/CLRA or common law fraud” causes of action, because Da-vidson had not alleged that she suffered any harm due to her use of the Scott Wipes.

Davidson filed a motion for reconsideration under Rules 59(e) and 60(b), which the district court denied. First, the dis-trict court rejected Davidson’s argument that it should have remanded the injunctive relief claims to state court. Second, the district court rejected Davidson’s argument that it should have dismissed the FAC without prejudice so that Davidson could file a second amended complaint curing the alleged de-fects in the FAC. Third, the district court rejected Davidson’s argument that the district court erred by ruling that Davidson had not adequately pled damages. Davidson timely appealed.

Davidson appeals six of the district court’s rulings. First, Davidson argues that the district court erred by dismissing the FAC pursuant to Rule 9(b) for failure to adequately al-lege why the representation “flushable” was false. Second, Davidson argues that the district court erred by dismissing the FAC pursuant to Rule 12(b)(6) on the basis that Davidson had not suffered any damages. Third, Davidson argues that the district court erred by dismissing the original complaint

pursuant to Rule 12(b)(6) for failing to plead how she came to believe the wipes were not flushable. Fourth, Davidson argues that the district court abused its discretion in striking, pursuant to Rule 12(f), references to newspaper reports in the original complaint. Fifth, Davidson argues that the dis-trict court abused its discretion by denying Davidson leave to amend her FAC. Finally, Davidson argues that the district court erred by dismissing her injunctive relief claims pursu-ant to Rule 12(b)(1) for lack of standing.

II. STANDARD OF REVIEW

We review de novo dismissals under Rule 9(b) for failure to plead fraud with particularity. Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009). We review de novo dis-missals under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Crowley v. Nevada ex. rel. Nev. Sec’y of State, 678 F.3d 730, 736 (9th Cir. 2012). A district court’s decision granting a motion to strike allegations in a complaint pursuant to Rule 12(f) is reviewed for abuse of discretion. Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000). Similarly, a district court’s decision dismissing a complaint with prejudice, which thereby denies the plaintiff an opportunity to amend her complaint, is reviewed for abuse of discretion. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009). Finally, we review de novo dismissals under Rule 12(b)(1) for lack of subject-matter ju-risdiction. Novak v. United States, 795 F.3d 1012, 1017 (9th Cir. 2015).

III. DISCUSSION

A. Theory of Fraud The district court dismissed the FAC pursuant to Rule 9(b)

because it concluded that Davidson failed to adequately al-lege “why” the representation that the wipes were flushable was false. Davidson argues that the district court overlooked the FAC’s “numerous, detailed factual allegations establish-ing that Defendants’ wipes fail to disperse and therefore cause clogs and problems with sewer and septic systems.” Kimberly-Clark argues that Davidson must allege that she experienced problems with her home plumbing or the rele-vant water treatment plant—allegations that are indisputably lacking in the FAC.

Because Davidson’s common law fraud, CLRA, FAL, and UCL causes of action are all grounded in fraud, the FAC must satisfy the traditional plausibility standard of Rules 8(a) and 12(b)(6), as well as the heightened pleading requirements of Rule 9(b). Kearns, 567 F.3d at 1125 (“[W]e have specifically ruled that Rule 9(b)’s heightened pleading standards apply to claims for violations of the CLRA and UCL.”); Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103–04 (9th Cir. 2003) (explaining that even “[i]n cases where fraud is not a neces-sary element of a claim, a plaintiff may choose nonetheless to allege in the complaint that the defendant has engaged in fraudulent conduct,” and in such cases, Rule 9(b)’s height-ened pleading requirement must be met). “In alleging fraud


. . . a party must state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). To properly plead fraud with particularity under Rule 9(b), “a pleading must identify the who, what, when, where, and how of the miscon-duct charged, as well as what is false or misleading about the purportedly fraudulent statement, and why it is false.” Cafas-so, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (internal quotation marks and alterations omitted); Vess, 317 F.3d at 1106 (“The plaintiff must set forth what is false or misleading about a statement, and why it is false.” (quoting Decker v. GlenFed, Inc., 42 F.3d 1541, 1548 (9th Cir. 1994))).

Assuming the truth of the allegations and construing them, as we must, in the light most favorable to Davidson, Daniels-Hall, 629 F.3d at 998, we hold that the FAC adequately al-leged why the term “flushable” is false.2 Davidson’s theory of fraud is simple: “Unlike truly flushable products, such as toilet paper, which disperse and disintegrate within seconds or minutes, [Kimberly-Clark’s flushable wipes] take hours to break down” or disperse, creating a risk that the wipes will damage plumbing systems, septic tanks, and municipal wastewater treatment facilities. Davidson alleged that flush-able means “suitable for being flushed,” which requires an item to be capable of dispersing within a short amount of time. This definition of flushable is supported by multiple allegations in the FAC, including dictionary definitions and Kimberly-Clark’s own statement on its website that its flush-able wipes “are flushable due to patented technology that allows them to lose strength and break up when moving through the system after flushing.” In contrast to truly flush-able or dispersible products, Davidson alleged, Kimberly-Clark’s flushable wipes “take hours to begin to break down.”

Importantly, Davidson alleged that the actual wipes she purchased failed to “disperse and disintegrate within seconds or minutes.” For example, Davidson alleged that after using the wipes, she “noticed that each individual wipe felt very sturdy and thick, unlike toilet paper” and that “[s]he also no-ticed that the wipes did not break up in the toilet bowl like toilet paper but rather remained in one piece.” Her personal experience is supported by additional allegations, including Kimberly-Clark’s own testing of the wipes.

Kimberly-Clark argues that Davidson was required to allege damage to her pipes or her sewage system because “suitable for flushing” means that the wipes “would not

2. Davidson argues that to survive Rule 12(b)(6), she need only plead enough facts to plausibly demonstrate that a reasonable consum-er may be misled. Her observation is correct. See Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008) (finding that UCL, CLRA, and FAL claims are governed by the “reasonable consumer standard,” under which a plaintiff need only “show that members of the public are likely to be deceived” (internal quotation marks omit-ted)). The district court, however, did not dismiss the FAC only under Rule 12(b)(6), but also under Rule 9(b). Under Rule 9(b), Davidson was required not simply to adequately plead that reasonable consum-ers are likely to be deceived by Kimberly-Clark’s use of the designa-tion “flushable,” but also why the designation “flushable” is false. See Kearns, 567 F.3d at 1125.

cause problems in her plumbing or at the water treatment plant.” But Kimberly-Clark justifies this theory by taking a single allegation in the FAC out of context. The FAC admit-tedly contains many allegations about how Kimberly-Clark’s flushable wipes and other wipes marketed as “flushable” can cause damage to pipes and sewage systems. But these allega-tions are extraneous and do not detract from Davidson’s basic theory of fraud: that “truly flushable products . . . disperse and disintegrate within seconds or minutes,” and Kimberly-Clark’s flushable wipes do not “disperse and disintegrate within seconds or minutes.” Since “[d]ismissal is proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory,” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001), and since Davidson alleged a cognizable legal theory, dismissal was not appropriate in this case. See Deutsch v. Flannery, 823 F.2d 1361, 1365 (9th Cir. 1987) (“[A] pleading satisfies the particularity requirement [of Rule 9(b)] if it identifies the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations.” (internal quotation marks omitted)).

For these reasons, we hold that the FAC adequately al-leged that Kimberly-Clark’s use of the word “flushable” was false because the Scott Wipes Davidson purchased did not disperse as a truly flushable product would have.

B. Harm

The district court also dismissed Davidson’s FAC in part because Davidson had not alleged that she suffered any dam-ages. When Davidson questioned this conclusion in her mo-tion for reconsideration, the district court clarified that Da-vidson “had not pled facts showing that her use of the wipes damaged her plumping, pipes, or septic system.”

However, Davidson was not required to allege damage to her plumbing or pipes. Under California law, the economic injury of paying a premium for a falsely advertised product is sufficient harm to maintain a cause of action. See, e.g., Cal. Bus. & Prof. Code § 17203 (requiring that an individual plead that she lost “money or property” because of the al-leged deceptive conduct); Cal. Civ. Code § 1780(a) (stating that a plaintiff asserting a cause of action under the CLRA need only plead that she suffered “any damage”); Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1104 (9th Cir. 2013) (“The lost money or property requirement therefore requires a plain-tiff to demonstrate some form of economic injury as a result of his transactions with the defendant.” (internal quotation marks omitted)). Thus, a consumer’s allegation that “she would not have bought the product but for the misrepresen-tation . . . is sufficient to allege causation . . . [and] to allege economic injury.” Kwikset Corp. v. Superior Court, 246 P.3d 877, 890 (Cal. 2011).

To properly plead an economic injury, a consumer must allege that she was exposed to false information about the product purchased, which caused the product to be sold at a higher price, and that she “would not have purchased the


goods in question absent this misrepresentation.” Hinojos, 718 F.3d at 1105. Davidson did that here. Davidson alleged that “[h]ad [Kimberly-Clark] not misrepresented (by omis-sion and commission) the true nature of their Flushable Wipes, [she] would not have purchased [Kimberly-Clark’s] product or, at a very minimum, she would have paid less for the product,” and that “[Kimberly-Clark] charge[d] a pre-mium price for flushable wipes.” Because Davidson only needed to allege an economic injury to state a claim for relief, and because Davidson alleges that she paid a premium price for the Scott Wipes, Davidson has properly alleged that she was injured by Kimberly-Clark’s allegedly false advertising.

C. Dismissal of the Original Complaint

The district court stated in its order dismissing the original complaint that “plaintiff has not alleged facts showing how she came to believe that the [Scott Wipes] were not flush-able.” Davidson argues that this requirement “does not exist in law.” According to Kimberly-Clark, the statement simply reflected the district court’s observation that Davidson had not alleged facts about her own experience.

Davidson was required to “identify the who, what, when, where, and how of the misconduct charged, as well as what is false or misleading about the purportedly fraudulent state-ment, and why it is false.” Cafasso, 637 F.3d at 1055 (inter-nal quotation marks and alterations omitted). To the extent the district court dismissed the original complaint because Davidson failed to allege facts “showing how she came to be-lieve that the [Scott Wipes] were not ‘flushable,’” the district court erred. We are aware of no authority that specifically requires a plaintiff bringing a consumer fraud claim to allege how she “came to believe” that the product was misrepre-sented when, as in this case, all the Rule 9(b) considerations have been met.

D. Article III Standing for Injunctive Relief

Finally, we address the most challenging issue in this case: whether Davidson has standing to seek injunctive relief.3 The district court concluded that Davidson lacked standing to as-sert a claim for injunctive relief, because Davidson “has no intention of purchasing the same Kimberly-Clark product in the future.” Davidson argues that she has alleged a cogniza-ble injury that establishes Article III standing to seek injunc-tive relief because (1) she will be unable to rely on the label “flushable” when deciding in the future whether to purchase Kimberly-Clark’s wipes, and (2) Kimberly-Clark’s false ad-vertising threatens to invade her statutory right, created by the UCL, CLRA, and FAL, to receive truthful information from Kimberly-Clark about its wipes. We hold that Davidson

3. We do not address the district court’s order granting the motion to strike allegations in the original complaint, as that complaint was re-placed by the FAC, and we conclude that the FAC is sufficient as is to survive the heightened pleading requirements of Rule 9(b). Similarly, we do not address the district court’s order denying leave to amend the FAC, as we conclude that the FAC is adequate as it stands.

properly alleged that she faces a threat of imminent or actual harm by not being able to rely on Kimberly-Clark’s labels in the future, and that this harm is sufficient to confer standing to seek injunctive relief. We therefore do not reach David-son’s alternative statutory standing argument.

Article III of the U.S. Constitution authorizes the judi-ciary to adjudicate only “cases” and “controversies.” The doctrine of standing is “an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The three well-known “irreducible constitutional minim[a] of standing” are injury-in-fact, causation, and redressability. Id. at 560–61. A plaintiff bears the burden of demonstrating that her injury-in-fact is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010).

A plaintiff must demonstrate constitutional standing sepa-rately for each form of relief requested. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 185 (2000). For injunctive relief, which is a prospective reme-dy, the threat of injury must be “actual and imminent, not conjectural or hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). In other words, the “threatened injury must be certainly impending to constitute injury in fact” and “allegations of possible future injury are not suf-ficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (internal quotation marks and alteration omitted). Past wrongs, though insufficient by themselves to grant standing, are “evidence bearing on whether there is a real and immedi-ate threat of repeated injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal quotation marks omitted). Where standing is premised entirely on the threat of repeated injury, a plaintiff must show “a sufficient likelihood that he will again be wronged in a similar way.” Id. at 111. In de-termining whether an injury is similar, we “must be careful not to employ too narrow or technical an approach. Rather, we must examine the questions realistically: we must reject the temptation to parse too finely, and consider instead the context of the inquiry.” Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005).

It is an open question in this circuit to what extent a pre-viously deceived consumer who brings a false advertising claim can allege that her inability to rely on the advertising in the future is an injury sufficient to grant her Article III standing to seek injunctive relief. With no guidance from our court, district courts applying California law have split dra-matically on this issue. See Pinon v. Tristar Prods., Inc., No. 1:16-cv-00331-DAD-SAB, 2016 WL 4548766, at *4 (E.D. Cal. Sept. 1, 2016) (“The Ninth Circuit has not addressed the specific question . . . [and] district courts within this cir-cuit are divided about whether a plaintiff seeking to bring injunctive relief claims over deceptive labeling can establish Article III standing once they are already aware of an alleged


misrepresentation.”); see also Russell v. Kohl’s Dep’t Stores, Inc., No. ED CV 15-1143 RGK (SPx), 2015 WL 12781206, at *5 (C.D. Cal. Oct. 6, 2015) (describing the “split among the district courts in the Ninth Circuit as to whether a plain-tiff lacks Article III standing to seek injunctive relief under the UCL and FAL when the plaintiff has knowledge of the defendant’s alleged misconduct”).

Courts concluding that such a plaintiff lacks standing to seek injunctive relief generally reason that “plaintiffs who are already aware of the deceptive nature of an advertisement are not likely to be misled into buying the relevant product in the future and, therefore, are not capable of being harmed again in the same way.” Pinon, 2016 WL 4548766 at *4. For example, in Machlan v. Procter & Gamble Company, the plaintiff alleged that the defendant deceptively marketed its wipes as flushable, even though the wipes did not dis-perse like toilet paper and clogged pipes and sewage sys-tems—facts nearly identical to those here. 77 F. Supp. 3d 954, 957 (N.D. Cal. 2015). The district court in Machlan concluded that the plaintiff lacked Article III standing for injunctive relief because the plaintiff had alleged that the use of the term “flushable” was deceptive, so the plaintiff could not be deceived again, even if he purchased the same wipes in the future. Id. at 960 (“[W]hen the alleged unfair practice is deception, the previously-deceived-but-now-enlightened plaintiff simply does not have standing under Article III to ask a federal court to grant an injunction.”).4 Multiple district courts have held similarly. See Pinon, 2016 WL 4548766 at *4 (collecting cases).

Other district courts in this circuit have concluded that a plaintiff has standing to seek an injunction against a prod-uct’s misleading representation, even though the plaintiff already knows or has reason to believe that the representa-tion is false. See id. (collecting cases). These courts generally reason that the plaintiff faces an actual and imminent threat of future injury because the plaintiff may be unable to rely on the defendant’s representations in the future, or because the plaintiff may again purchase the mislabeled product.

For example, in Ries v. Arizona Beverages USA LLC, the plaintiffs alleged that the defendants engaged in false adver-tising by marketing their “AriZona Iced Tea” beverages as “All Natural” and “100% Natural” even though the product contained the non-natural ingredients high fructose corn syrup and citric acid. 287 F.R.D. 523, 527 (N.D. Cal. 2012). The defendants argued that the plaintiffs were not threatened

4. Interestingly, the Machlan court remanded the portions of the plaintiff’s claims that sought injunctive relief, and then proceeded in federal court on some of the claims seeking monetary damages. Id. at 960–62, 964–65. The court reasoned that injunctive relief is an im-portant remedy in California’s consumer protection statutes and that allowing a defendant to undermine those statutes through removal to federal court “is an unnecessary affront to federal and state comity.” Id. at 961. Here, Davidson similarly argues that the district court erred by denying her request to remand the injunctive relief “claim” to state court. Because we conclude that Davidson’s alleged future injury jus-tifies Article III standing for injunctive relief, we need not reach this issue.

by future harm because the plaintiffs became aware of the contents of the drink and could no longer be deceived. Id. at 533. The district court rejected this argument, reasoning that “[s]hould plaintiffs encounter the denomination ‘All Natural’ on an AriZona beverage at the grocery store today, they could not rely on that representation with any confidence.” Id. The district court in Ries also explained that “the record is devoid of any grounds to discount plaintiffs’ stated intent to pur-chase [the product] in the future.” Id.; see also Weidenhamer v. Expedia, Inc., No. C14-1239RAJ, 2015 WL 1292978, at *5 (W.D. Wash. Mar. 23, 2015) (explaining that the plaintiff “is entitled to rely on the statements made in [the] ad, even if he previously learned that some of those statements were false or deceptive,” and that the plaintiff had adequately alleged that he likely would continue to be an Expedia customer); Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181, 194– 95 (D.D.C. 2013) (finding that “the named plaintiffs, knowl-edgeable about the misrepresentations, are likely to suffer future harm in the absence of an injunction,” because they will be unable “to rely on the [misleading] label with any confidence” and “will have no way of knowing” whether de-fendants “boost[ed] the label’s veracity”).

Today, we resolve this district court split in favor of plain-tiffs seeking injunctive relief. We hold that a previously de-ceived consumer may have standing to seek an injunction against false advertising or labeling, even though the con-sumer now knows or suspects that the advertising was false at the time of the original purchase, because the consumer may suffer an “actual and imminent, not conjectural or hy-pothetical” threat of future harm. Summers, 555 U.S. at 493. Knowledge that the advertisement or label was false in the past does not equate to knowledge that it will remain false in the future. In some cases, the threat of future harm may be the consumer’s plausible allegations that she will be unable to rely on the product’s advertising or labeling in the future, and so will not purchase the product although she would like to. See, e.g., Ries, 287 F.R.D. at 533; Lilly v. Jamba Juice Co., No. 13-cv-02998-JT, 2015 WL 1248027, at *4 (N.D. Cal. Mar. 18, 2015) (“[U]nless the manufacturer or seller has been enjoined from making the same representation, [the] consumer . . . won’t know whether it makes sense to spend her money on the product.”). In other cases, the threat of fu-ture harm may be the consumer’s plausible allegations that she might purchase the product in the future, despite the fact it was once marred by false advertising or labeling, as she may reasonably, but incorrectly, assume the product was im-proved. See, e.g., L’Oreal, 991 F. Supp. 2d at 194–95. Either way, we share one district court’s sentiment that we are “not persuaded that injunctive relief is never available for a con-sumer who learns after purchasing a product that the label is false.” Duran v. Creek, 2016 WL 1191685, at *7 (N.D. Cal. Mar. 28, 2016) (emphasis added).

We observe—although our conclusion is not based on this consideration—that our holding alleviates the anomalies the opposite conclusion would create. As the Machlan court apt-


ly recognized, “[a]llowing a defendant to undermine Califor-nia’s consumer protection statutes and defeat injunctive relief simply by removing a case from state court is an unnecessary affront to federal and state comity [and] . . . an unwarranted federal intrusion into California’s interests and laws.” 77 F. Supp. 3d at 961; see also Henderson v. Gruma Corp., 2011 WL 1362188, at *8 (C.D. Cal. Apr. 11, 2011) (“[T]o prevent [plaintiffs] from bringing suit on behalf of a class in federal court would surely thwart the objective of California’s con-sumer protection laws.”). This is because “the primary form of relief available under the UCL to protect consumers from unfair business practices is an injunction,” In re Tobacco II, 207 P.3d 20, 34 (Cal. 2009)—a principle that the California Supreme Court recently reaffirmed. See McGill v. Citibank, N.A., 393 P.3d 85, 90, 93 (Cal. 2017) (explaining that “public injunctive relief under the UCL, the CLRA, and the false advertising law is relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the general public,” and that “public injunctive relief re-mains a remedy to private plaintiffs” under the UCL, FAL, and CLRA (internal quotation marks omitted)).

Were injunctive relief unavailable to a consumer who learns after purchasing a product that the product’s label is false, California’s consumer protection laws would be ef-fectively gutted, as defendants could remove any such case. Machlan, 77 F. Supp. 3d at 961. As the district court in Machlan explained, by finding that these plaintiffs fail to al-lege Article III standing for injunctive relief, we risk creating a “perpetual loop” of plaintiffs filing their state law consumer protection claims in California state court, defendants remov-ing the case to federal court, and the federal court dismiss-ing the injunctive relief claims for failure to meet Article III’s standing requirements. Id. On our Article III standing analysis, fully supported for the reasons we have explained by established standing principles, this “perpetual loop” will not occur.

Since we hold that a previously deceived plaintiff may have standing to seek injunctive relief, we must turn our attention to whether Davidson adequately alleged that she faces an imminent or actual threat of future harm caused by Kimberly-Clark’s allegedly false advertising. Davidson al-leged that she “continues to desire to purchase wipes that are suitable for disposal in a household toilet”; “would purchase truly flushable wipes manufactured by [Kimberly-Clark] if it were possible”; “regularly visits stores . . . where [Kim-berly-Clark’s] ‘flushable’ wipes are sold”; and is continually presented with Kimberly-Clark’s flushable wipes packaging but has “no way of determining whether the representation ‘flushable’ is in fact true.”

We are required at this stage of the proceedings to pre-sume the truth of Davidson’s allegations and to construe all of the allegations in her favor. Daniels-Hall, 629 F.3d at 998. Though we recognize it is a close question, based on the FAC’s allegations, we hold that Davidson adequately alleged that she faces an imminent or actual threat of future harm

due to Kimberly-Clark’s false advertising. Davidson has al-leged that she desires to purchase Kimberly-Clark’s flushable wipes. Her desire is based on her belief that “it would be easier and more sanitary to flush the wipes than to dispose of them in the garbage.” As in Ries, the FAC is “devoid of any grounds to discount [Davidson’s] stated intent to purchase [the wipes] in the future.” 287 F.R.D. at 533. And “[s]hould [Davidson] encounter the denomination [‘flushable’] on a [Kimberly-Clark wipes package] at the grocery store today, [she] could not rely on that representation with any confi-dence.” Id. We therefore hold that Davidson’s allegation that she has “no way of determining whether the representation ‘flushable’ is in fact true” when she “regularly visits stores . . . where Defendants’ ‘flushable’ wipes are sold” constitutes a “threatened injury [that is] certainly impending,” thereby establishing Article III standing to assert a claim for injunc-tive relief. See Clapper, 568 U.S. at 409.

IV. CONCLUSION

We hold that the FAC adequately alleges that Kimberly-Clark’s use of the word “flushable” was false because the Scott Wipes that Davidson purchased did not adequately dis-perse as a truly flushable product would have. The district court erred in concluding that Davidson failed to allege harm and how she came to believe the wipes were not flushable. Finally, because Davidson’s allegations sufficiently iden-tified a certainly impending risk of her being subjected to Kimberly-Clark’s allegedly false advertising, Davidson had standing to pursue injunctive relief. We therefore REVERSE and REMAND.

BERZON, Circuit Judge, concurring:

I concur in the majority opinion with the following caveat: As to prospective relief, the majority opinion rests on the

proposition that we are required to perform a separate stand-ing analysis for each “form of relief,” and concludes that Davidson’s claims for restitution and for an injunction each qualify as having established standing. There is case law sup-porting both points, as the opinion states.

I write separately to note that duplicating the standing analysis in this way does not give effect to the “case or con-troversy” requirement of Article III. Instead, it appears to be an artifact of the discredited practice of conflating the prereq-uisites for injunctive relief with the Article III prerequisites for entry into federal court. Although we held in Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999) (en banc), overruling earlier precedents,5 that City of Los

5. See Smith v. City of Fontana, 818 F.2d 1411, 1423 (9th Cir. 1987) (holding that a damages claim satisfies Article III standing with respect to other forms of relief “involv[ing] the same operative facts and legal theory”); Giles v. Ackerman, 746 F.2d 614, 619 (9th Cir. 1984) (treating the presence of a related damages claim as satisfying Article III standing, thereby allowing the court to consider “whether relief in addition to damages is appropriate”); Gonzales v. City of Peo-


Angeles v. Lyons, 461 U.S. 95 (1983), requires this result, in my view it does not.

Davidson seeks restitution for the premium she paid for a falsely labeled product, and no one doubts that she has stand-ing in federal court to do so. Under California law, if David-son prevails on her false advertising claim and is entitled to restitution, she is equally entitled to an injunction. See Cal. Bus. & Prof. Code §§ 17202–03; see also Kwikset Corp. v. Superior Court, 246 P.3d 877, 894–95 (Cal. 2011). No ad-ditional showing, equitable or otherwise, is needed to trigger her right to injunctive relief. It follows that we have a single dispute—a single case, a single controversy—giving rise to multiple forms of relief.

It is mechanically possible, in this case, to define David-son’s “case or controversy” differently, and to assign the re-quirements of injury, causation, and redressability separately to each remedy she seeks. But it turns Article III on its head to let the remedies drive the analysis, where state law clearly envisions those remedies as the product of a single adjudi-cation of a single issue. See Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d 937, 943 (Cal. 2003). And proceed-ing in that way fundamentally undermines, substantively, the enforcement of state laws in federal court. Cf. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (“Congress has no power to declare substantive rules of common law applicable in a state . . . . And no clause in the Constitution purports to confer such a power upon the federal courts.”).

It was in recognition of this anomaly that the district court in Machlan v. Procter & Gamble Co. remanded only the pro-spective relief aspect of that similar false advertising case to state court. 77 F. Supp. 3d 954, 960–61 (N.D. Cal. 2015). I doubt that is an acceptable option. But the impetus to do that springs from the same problem I have identified— that a defendant should not be able to strip a plaintiff of remedies dictated by state law by removing to federal court a case over which there surely is Article III jurisdiction over the liability issues. Cf. Larson v. Valente, 456 U.S. 228, 238–39 (1983) (“The essence of the standing inquiry is whether the parties seeking to invoke the court’s jurisdiction have alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues . . . .” (internal quotation marks omitted)).

Federal courts have a history of improperly elevating the prerequisites for relief to the status of jurisdictional hurdles. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387–88 & n.4 (2014). Notably, although Lyons is now widely credited as the origin of the rule that injunctive relief always requires its own standing inquiry, see, e.g., Hodgers-Durgin, 199 F.3d at 1040 n.1, that case, as I read it, did not make that jurisdiction/remedy mistake. Rath-er, after determining that there was no independent standing to seek injunctive relief, Lyons separately noted that there

ria, 722 F.2d 468, 481 (9th Cir. 1983) (concluding that the presence of a damages claim “present[ed] a case in controversy as to injunctive relief”).

was also a pending request for damages. Lyons, 461 U.S. at 111. The Court then inquired into whether the nonjurisdic-tional requirements for equitable prospective relief were met, and concluded they were not. Id. at 111–12. In my view, this aspect of Lyons recognized that there was a case or contro-versy regarding liability issues because of the damages claim, but precluded injunctive relief on nonjurisdictional grounds specific to the equitable requirements for such relief—the absence of irreparable harm. Id. Were this not what Lyons meant, the entire discussion of the equitable principles gov-erning prospective relief would have been superfluous.

Conflating the elements of relief with the elements of standing is of little consequence in most cases following Ly-ons. Where the availability of injunctive relief is governed by federal common law, the common-law prerequisites for injunctive relief must eventually be satisfied, and largely mir-ror the standing prerequisites. See also, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 184–88 (2000) (conducting a separate standing analysis of civil penalties, but concluding that deterrence of ongo-ing harm suffices for constitutional standing). But collapsing the inquiries becomes problematic when it imposes substan-tive limits on the availability of relief under state law, in the service of constitutional interests that aren’t actually under threat.

I nonetheless concur fully in the majority opinion. Hodg-ers-Durgin is binding law, and it does require a separate standing analysis with regard to prospective relief. As the majority opinion well explains, as long as a separate standing analysis is necessary despite the state prescription of more or less automatic prospective relief, that requirement is met here.



TIFFANY BRINKLEY, on behalf of herself and others similarly situated, Plaintiff-Appellee,

v.MONTEREY FINANCIAL SERVICES,

INC.; MONTEREY FINANCIAL SERVICES, LLC, Defendants-Appellants.

No. 17-56335United States Court of Appeals for the Ninth CircuitD.C. No. 3:16-cv-01103-WQH-WVG

Appeal from the United States District Court for the Southern District of California

William Q. Hayes, District Judge, PresidingArgued and Submitted October 3, 2017 Pasadena, CaliforniaFiled October 20, 2017Before: Diana Gribbon Motz,*Milan D. Smith, Jr., and

Jacqueline H. Nguyen, Circuit Judges.Opinion by Judge Milan D. Smith, Jr.

*The Honorable Diana Gribbon Motz, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.

COUNSEL William P. Cole (argued) and Matthew R. Orr,

Call & Jensen APC, Newport Beach, California, for Defendants- Appellants.

Patrick N. Keegan (argued) and James M. Treglio, Keegan & Baker LLP, Carlsbad, California; Steven A. Wickman and Christina E. Wickman, Wickman & Wickman, Escondido, California; for Plaintiff-Appellee.

OPINION M. SMITH, Circuit Judge:

Monterey Financial Services, Inc. and Monterey Financial Services, LLC (collectively, Monterey) appeal the district court’s grant of Tiffany Brinkley’s (Brinkley) motion to re-mand this class action to California state court. We conclude that Brinkley did not meet the requirements of the Class Ac-tion Fairness Act’s (CAFA) home-state controversy excep-tion because she did not prove that two-thirds of all class members are California citizens. We therefore vacate the district court’s remand order, and remand to that court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Monterey, a financial services company, allegedly record-ed or monitored its telephone conversations with Brinkley without giving her notice. On October 15, 2013, Brinkley brought this action in California state court against Monterey, alleging (1) invasion of privacy in violation of California and Washington state law; (2) unlawful recording of telephone calls under California law; and (3) violation of California Business and Professions Code § 17200, et seq. She brought her first and third claims on behalf of a class of

[a]ll persons who, while physically located or residing in California and Washington, made or received one or more telephone calls with [Monterey] during the four year period preceding the filing of this lawsuit (the “Class Period”) and did not receive notice at the begin-ning of the telephone call that their telephone conversa-tion may be recorded or monitored[.]

On May 6, 2016, Monterey removed this action to federal district court. Brinkley then moved to remand the case back to California state court pursuant to CAFA’s home-state controversy exception, 28 U.S.C. § 1332(d)(4)(B). The dis-trict court delayed ruling on Brinkley’s motion, and ordered jurisdictional discovery.

Following a series of discovery disputes regarding Mon-terey’s records, the parties conducted two telephonic con-ferences with the assigned magistrate judge. The magistrate judge subsequently ordered Monterey to produce a list of all putative California and Washington class members. Brin-kley did not appeal this order. Purportedly complying with the order, Monterey produced a list of over 152,000 persons who had recorded calls with Monterey between October 15, 2009, and May 6, 2016, and had a California or Washington mailing address.

Statistician Dr. James Lackritz, hired by Brinkley, ana-lyzed the list produced by Monterey and segregated a ran-dom sample of individuals included in that list. Monterey challenged Dr. Lackritz’s analysis because he did not limit his analysis to individuals who had telephonic contact with Monterey before the class period ended on October 15, 2013. In response, Dr. Lackritz submitted a supplemental report purporting to be limited to individuals who made or received at least one call with Monterey during the defined class pe-riod. Dr. Lackritz’s report contained no evidence of individu-als who were physically located in, but were not residents of, California or Washington when they made or received a phone call with Monterey.

On March 23, 2017, the district court granted Brinkley’s motion to remand this case to California state court. Based on Dr. Lackritz’s analysis, the district court found that at least two-thirds of class members are California citizens. Monterey timely moved for permission to appeal pursuant to


28 U.S.C. § 1453(c)(1). On September 5, 2017, we granted Monterey’s request for permission to appeal.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review a district court’s remand order pursuant to 28 U.S.C. § 1453(c)(1). We review a district court’s remand order de novo. Jordan v. Nationstar Mortg. LLC, 781 F.3d 1178, 1181 (9th Cir. 2015). We review the “‘construction, interpretation, or applicability’ of CAFA de novo.” Washington v. Chimei Innolux Corp., 659 F.3d 842, 847 (9th Cir. 2011) (quoting Bush v. Cheaptickets, Inc., 425 F.3d 683, 686 (9th Cir. 2005)).

ANALYSIS

Congress passed CAFA with the “overall intent . . . to strongly favor the exercise of federal diversity jurisdiction over class actions with interstate ramifications.” S. Rep. No. 109-14, at 35 (2005). CAFA vests federal courts with orig-inal diversity jurisdiction over class actions where (1) the aggregate amount in controversy exceeds $5,000,000; (2) any class member is a citizen of a state different from any defendant; and (3) there are at least 100 class members. 28 U.S.C. § 1332(d)(2), (5)(B). However, CAFA also contains some exceptions which require the district court to decline to exercise jurisdiction and remand the matter to state court. See id. § 1332(d)(4). The party seeking remand to state court bears the burden of proving that a CAFA exception applies. See Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1024 (9th Cir. 2007).

Under the home-state controversy exception, a district court must decline to exercise jurisdiction where “two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed.”1 28 U.S.C. § 1332(d)(4)(B). To meet this burden, the moving party must provide “some facts in evidence from which the district court may make findings regarding class members’ citizenship.” Mondragon v. Capital One Auto Fin., 736 F.3d 880, 884 (9th Cir. 2013); see Coleman v. Estes Express Lines, Inc., 631 F.3d 1010, 1017 (9th Cir. 2011) (“Fact-finding is ‘necessitated by the existing jurisdictional statutes’ on questions of citizen-ship . . . .” (quoting S. Rep. No. 109-14, at 44)). While this “jurisdictional finding of fact should be based on more than guesswork,” a court may “make reasonable inferences from facts in evidence.” Mondragon, 736 F.3d at 884, 886. The district court makes these factual findings under a preponder-ance of the evidence standard. Id. at 884.

In order to determine whether two-thirds of class mem-bers are California citizens, we must first determine the size of the class as a whole. See Arbuckle Mountain Ranch of Tex., Inc. v. Chesapeake Energy Corp., 810 F.3d 335, 339 (5th Cir. 2016) (“The class definition issue is critical to de-

1. The parties do not dispute that Monterey is a citizen of California.

termine whether the local controversy exception applies.”). Here, Brinkley’s class consists of all individuals who made or received a telephone call with Monterey “while physically lo-cated or residing in California and Washington.” By its terms, the class includes individuals who were physically located in, but were not residents of, California or Washington when they made or received a call with Monterey (the “located in” subgroup).

During jurisdictional discovery the court ordered Mon-terey to produce a list of putative California and Washing-ton class members, and Brinkley requested a list of putative class members. Monterey replied that it would “not produce documents or information in response to the request as pro-pounded” and produced a document “which contains a list of Monterey accounts listing California and Washington street addresses with respect to which accounts telephone calls (to and/or from) were recorded between October 15, 2009 and May 6, 2016.” Brinkley relied on Dr. Lackritz’s analysis of the list produced by Monterey in her attempt to prove that two-thirds of all class members are California citizens. That list addresses only a portion of the class—those who were “residing in California and Washington” when they made or received a call with Monterey. It does not address, or con-tain information about, the size of the “located in” subgroup. Brinkley never sought more information about the size of the class after she obtained Monterey’s list, never appealed the magistrate judge’s discovery order, and never argued that the list did not comply with the discovery order. Thus, even if Monterey had information about the “located in” subgroup, Brinkley did not pursue this information during discovery.

Brinkley did not submit any evidence regarding the “locat-ed in” subgroup. Without knowing the size of this subgroup, the size of the entire class is unknown. That is, absent “some facts in evidence” regarding the size of the entire class, the district court cannot determine whether two-thirds of all class members are California citizens. See Mondragon, 736 F.3d at 884; see also 28 U.S.C. § 1332(d)(4)(B) (home-state contro-versy exception requires two-thirds of “all proposed plaintiff classes in the aggregate” to be in-state citizens). Brinkley therefore has not met her burden to show that the home-state controversy exception applies. Mondragon, 736 F.3d at 884, 886 (vacating remand order where the plaintiff “failed to sat-isfy his burden of proof” that two-thirds of all class members were California citizens).

Brinkley was also on notice of her class definition prob-lem. During the telephonic discovery conferences, Monterey informed the court and Brinkley that Brinkley’s class defini-tion was problematic because it included the “located in” subgroup, and Monterey could not identify who fell within that subgroup. Despite Monterey’s comments alerting Brin-kley to this class definition issue, Brinkley did not attempt to resolve it during discovery. Simply stated, the class definition issue is “of [Brinkley’s] own making.” See id. at 885.

Brinkley alternatively argues that her class definition problem is a red herring because Monterey fails to identify


a single non-California or Washington citizen whose tele-phone conversation it recorded. This argument misstates the burden of proof in CAFA exception cases. The burden is not on Monterey to prove the inapplicability of a CAFA excep-tion. Rather, the burden is on Brinkley, as the party seeking remand, to prove the applicability of a CAFA exception. See Serrano, 478 F.3d at 1021–22.

A plaintiff cannot remand an otherwise valid CAFA case to state court when only a portion of the class meets the two-thirds citizenship requirement. See 28 U.S.C. § 1332(d)(4)(B). This is what Brinkley seeks to do here— remand a class action based on evidence of only some class members’ citi-zenship.2 The size of the entire class is unknown and Brin-kley has failed to prove that two-thirds of class members are California citizens because there is no evidence regarding the citizenship of class members who made or received a phone call from Monterey while located in, but not resid-ing in, California or Washington. Cf. Mondragon, 736 F.3d at 884 (“A complete lack of evidence does not satisfy [the preponderance of the evidence] standard [for factual findings regarding CAFA jurisdiction].”).

CONCLUSION

We vacate the district court’s order remanding this action to California state court, and remand this action to the district court for further proceedings.

Costs are to be taxed against the appellee Tiffany Brinkley.

VACATED AND REMANDED.

2. Because the size of the class is unknown, we need not address whether the residential and mailing addresses Brinkley submitted con-stitute prima facie evidence of citizenship for purposes of a CAFA exception.

October 23, 2017 CALIFORNIA DAILY OPINION SERVICE CALIFORNIA COuRtS OF APPEAL 10203

California Courts of Appeal


MARY LYONS, Plaintiff and Appellant, v.COLGATE-PALMOLIVE COMPANY,

Defendant and Respondent.

No. A150567In The Court of Appeal of the State of CaliforniaFirst Appellate DistrictDivision Three(City & County of San Francisco Super. Ct. No. CGC-16-276495)

Filed October 19, 2017

COUNSEL

Counsel for Plaintiff and Appellant: Simon Greenstone Panatier Bartlett PC, Brian P. Barrow

Counsel for Defendant and Respondent: Quinn Emanuel Urquhart & Sullivan, LLP, Adam M. Abensohn, Daniel H. Bromberg, Morgan W. Tovey

OPINION

Plaintiff Mary Lyons appeals from the summary judgment entered against her on her product liability claim against Col-gate-Palmolive Company (Colgate), based on the allegation that she developed mesothelioma from the use of Colgate’s Cashmere Bouquet cosmetic talcum powder. In granting the motion, the trial court failed to comply with Code of Civil Procedure section 437c, subdivision (g), requiring a written order specifying the reasons for its determination and “spe-cifically refer[ring] to the evidence proffered in support of and, if applicable, in opposition to the motion that indicates no triable issue exists.” Its tentative ruling adopted after the hearing indicated only its view that “Plaintiff failed to submit evidence to create a triable issue whether she was exposed to asbestos-containing products or materials attributable to defendant.” Although the judgment prepared by defense counsel and signed by the court provided greater specificity in adopting defendant’s sundry arguments, the record none-theless contains substantial evidence creating a triable issue as to whether Colgate’s Cashmere Bouquet talc contained asbestos that may be found to have been a substantial cause of plaintiff’s mesothelioma.

BACKGROUND

The 24-volume record in this case contains lengthy evi-dence submitted in support of and opposition to the summary judgment motion. It is unnecessary to summarize all of the

evidence, however, because summary judgment rests on the premise that plaintiff failed to create a triable issue of fact as to whether Colgate’s Cashmere Bouquet talcum powder which she applied to herself for some 20 years contained asbestos. For present purposes it is sufficient to describe the evidence plaintiff produced creating a triable issue as to that fact.

Plaintiff alleged and at her deposition testified that she used Cashmere Bouquet talcum powder from the early 1950’s to the early 1970’s. As a young child, she testified and her older cousin confirmed, she and her mother took baths to-gether and her mother applied the talcum powder to her after every bath. When she was “about eight” in 1955, she began regularly applying the talcum powder herself and continued to do so after every bath until two or three years after she left her mother’s home in the early 1970’s. In October 2015 she was diagnosed with malignant mesothelioma.

Plaintiff did not retain any containers or packaging of the talcum powder, but she and her cousin recalled that the container was a “pink tin can” on which were “little pink flowers” and the words “Cashmere Bouquet.” The container was about four or five inches high, with a pull-off cap and a shaker-can top with holes.

Colgate manufactured Cashmere Bouquet talcum powder from 1871 to 1985, and continued marketing the product un-til 1995, about the time that the United States Environmental Protection Agency reported that the presence of asbestos in talc makes it a human carcinogen.

The talc Colgate used in its Cashmere Bouquet talcum powder came from three different sources: the Val Chisone mine in Italy; Willow Creek, Montana; and Regal, North Carolina. An individual using Cashmere Bouquet from 1960 to 1977 would have used talc that originated from one or all of those locations. In opposition to the summary judgment motion, plaintiff presented considerable evidence to the ef-fect that talc from each of the three sites contained some form of asbestos. For present purposes, it is sufficient to provide a partial summary of the proffered testimony of plaintiff’s expert, Sean Fitzgerald.

Fitzgerald’s declaration in opposition to the summary judgment motion begins with a statement of his expert cre-dentials: “I am a Senior Research Scientist at Scientific Ana-lytical Institute. I am a licensed Professional Geologist, min-eralogist, and asbestos expert, with 30 years of experience analyzing asbestos minerals and researching and developing the science of asbestos. I am familiar with and have sub-stantial training and experience in the analysis of asbestos and asbestos-containing materials, including by transmission electron microscopy, scanning electron microscopy, x-ray diffraction, and polarized light microscopy. I am also familiar with OSHA, NIOSH and EPA methods and regulations re-garding the analysis of asbestos and asbestos-containing ma-terials. [¶] In my years of service, I have firsthand experience with many of the key events that have impacted the asbestos analytical community, including product identification of


asbestos-containing materials, discovery and interpretation of asbestos contamination in vermiculite from Libby Mon-tana, discovery and interpretation of environmental impact of naturally occurring asbestos in California and Virginia, even analysis of materials from the World Trade Center before and after 9/11. I have also worked with mine and quarry sites to identify possible occurrences of asbestos, and am experi-enced in analyzing complex mixed mineral assemblages such as talc contaminated with asbestos.” The declaration provides the specifics of Fitzgerald’s experience, professional associa-tions, expert testimony in other cases, lectures, and writings (including papers entitled “Analysis of Talc for Asbestos” and “Asbestos in Commercial Cosmetic Talcum Powder as a Cause of Mesothelioma in Women”).

Fitzgerald states that “[t]alc from all three of [the sources identified by Colgate as the sources of its talc] was contami-nated with asbestos in the mine. [¶] I have personally con-firmed the presence of asbestos in all three mine sources and the Cashmere Bouquet products. I have determined the pres-ence of asbestos in the microscope in analysis of samples that I took directly from both the North Carolina and Montana sources. I have determined the presence of asbestos in AGI 1615 talc provided to me from the Italian source. I have re-peatedly determined the presence of asbestos in Cashmere Bouquet product samples in years of repeated testing by in-dustry-standard asbestos analytical techniques.” In lengthy sections of the declaration entitled “The Minerology of Talc and Asbestos,” “Geological Evidence of Asbestos in Source Talc Cores for Cashmere Bouquet,” “Historical Testing of Source Ores to Cashmere Bouquet,” “Testing of Cashmere Bouquet Confirms Asbestos,” “Colgate’s Own Testing Con-firms Asbestos in Cashmere Bouquet,” among other sections refuting the opinions of Colgate’s experts, the declaration provides specifics leading to the following conclusions: “The Cashmere Bouquet product used by Ms. Lyons from the early 1950s into the 1970s included asbestos. Bulk testing by my laboratory and the laboratories of my coauthors has repeated-ly found asbestos in Cashmere Bouquet. The results of such testing are consistent with the makeup of the product, the ore, and the geology of the talc sources used by its manufacturer, Colgate. Further, releasability tests of Cashmere Bouquet have repeatedly found significant concentrations of airborne asbestos, including the same three mineral species historical-ly identified, namely chrysotile, anthophyllite, and tremolite asbestos, when these historic products were used in a manner consistent with the testimony of Ms. Lyons and her family. [¶] It is therefore my opinion, to a reasonable degree of scien-tific certainty, that Ms. Mary Lyons was repeatedly exposed to significant airborne asbestos, hundreds if not thousands of times greater than background or ambient levels, by her use of Cashmere Bouquet talcum powder products, and her family’s use of said product on and around Ms. Lyons.” The declaration includes 39 exhibits totaling close to 800 pages, consisting of scientific papers, geological surveys and other documents supporting these conclusions.

Following entry of the order granting summary judgment, plaintiff moved for reconsideration, submitting in support of the motion additional testimony from another expert support-ing Fitzgerald’s opinions. The court denied the motion on the ground that the additional evidence should have been submit-ted earlier (rejecting plaintiff’s argument that the testimony was not available earlier), and proceeded to enter judgment in favor of Colgate. Plaintiff has timely appealed.

DISCUSSION

Plaintiff contends that the evidence submitted in support of the summary judgment motion was insufficient to carry Colgate’s burden to conclusively negate her claim and shift to plaintiff the burden of presenting evidence creating a triable issue of fact on the material issue of her exposure to asbestos from the use of Colgate’s talcum powder. Plaintiff contends that Colgate’s evidence establishes at most that some of its talcum powder might not have contained asbestos, which plaintiff argues is not sufficient to negate her claim. We need not address this issue, however, because assuming that Col-gate carried its burden—and Colgate did submit expert tes-timony that Cashmere Bouquet “was free of asbestos”—it is clear that plaintiff submitted sufficient evidence to the con-trary to a create a triable issue.

Colgate argues and the trial court seems to have placed weight on the fact that plaintiff is unable to produce any of the Cashmere Bouquet tin cans containing the talcum powder that she used, so that “there is no evidence of any testing of a Cashmere Bouquet product that Ms. Lyons actually used to determine whether it contained asbestos.” The absence of the packaging and testing of the very container that plaintiff used is hardly sufficient reason to reject the testimony iden-tifying the product that she used, combined with the expert testimony that all of that product contained “significant con-centrations of airborne asbestos.”

In adopting the form of judgment submitted by Colgate, the trial court also cited Fitzgerald’s acknowledgement in prior litigation that the quantity of asbestos in a particular talc sample could vary, but Fitzgerald did not agree that some talc might contain no significant level of asbestos.1 And that is clearly not the thrust of his declaration submitted in opposi-tion to summary judgment. “Bulk testing by my laboratory and the laboratories of my coauthors [detailed in the lengthy declaration] has repeatedly found asbestos in Cashmere Bou-quet.” The trial court also referred to the fact that prior tests failed to detect the presence of asbestos in the raw talc used

1. For example, one passage from Fitzgerald’s prior testimony cited by the court was the following: “[Question:] I want to see if I understand what you’re saying. For any given pallet that is leaving the mill that has been mined and milled in Val Germanasca, you’re not saying that that pallet contains asbestos to a reasonable degree of scientific certainty; right? . . . [Answer:] No. That’s not what I’m say-ing. I’m saying that it’s likely. [Question:] Okay. And so what you’re saying is that it’s possible that that pallet contains asbestos, but you can’t quantify that possibility? . . . [Answer:] It’s a more qualitative assertion that I’m making, yes.”


in Cashmere Bouquet, but Fitzgerald’s declaration asserts that many of the samples used in those tests were retested and found to contain asbestos, and that the methods used in others of those tests were incapable of detecting asbestos because of its light weight.

The judgment prepared by Colgate’s counsel also includes the assertion that the opinions of plaintiff’s experts “lack a proper foundation and are contradicted by prior sworn testi-mony.” So far as the record appears, however, none of the ma-terial opinions expressed by Fitzgerald contradict the prior testimony cited by Colgate. As to the foundation for those opinions, Colgate submitted numerous written objections to plaintiff’s evidence but did not assert its objections at the hearing, so that the objections were waived (Code Civ. Proc., § 437c, subd. (b)(5) [“Evidentiary objections not made at the hearing shall be deemed waived.”]), and the trial court did not rule on any of those objections, so that they are presumed to have been overruled (Code Civ. Proc., § 437c, subd. (c); Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534). In all events, it is not clear in what respect the trial court considered the foundation for Fitzgerald’s opinion to be lacking and any deficiency in that respect is not apparent.

The judgment prepared by Colgate’s attorneys also re-cites that “the evidence supports no more than a possibil-ity that Ms. Lyons was exposed to asbestos from her use of Cashmere Bouquet talcum powder, and is thus insufficient to give rise to a triable issue of material fact.” However, the evi-dence that talc from all three mines used in the manufacture of Cashmere Bouquet contained asbestos, repeatedly found in multiple tests and studies conducted before, during and after the 1950-1970 time period, coupled with plaintiff’s use of the product over those 20 years, particularly in the absence of evidence of any other source of the asbestos causing plain-tiff’s mesothelioma, creates more than an unsupported pos-sibility. Rather, there is a sufficient basis for the “inference[] reasonably deducible from the evidence” that all or most of the Cashmere Bouquet that plaintiff used almost daily for 20 years contained harmful asbestos. (Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 185.)

The cases cited by Colgate and by the trial court in the judgment prepared by Colgate to establish the insufficiency of plaintiff’s evidence are readily distinguishable. In Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, for example, the defendant produced one product that contained asbestos, Colton gun plastic cement, and another product that did not contain asbestos, Colton plastic cement. The sole product identification witness testified that the plaintiff used the non-asbestos-containing plastic cement and “did not recall ever seeing the Colton gun plastic cement brand name. . . . He first heard of Colton gun plastic cement when he was deposed in [the] lawsuit.” (Id. at p. 590.) Based “on the evidence pre-sented,” the court understandably concluded, “guesswork is required for the trier of fact to conclude that the product [plaintiff] encountered was Colton gun plastic cement.” (Id. at p. 592.)

In Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, plaintiffs alleged that the decedent had been exposed to asbestos by Bechtel Construction at two PG&E sites con-structed by Bechtel, “Contra Costa Buildings 6 and 7.” There was only questionable evidence that Bechtel was involved in the installation of insulation at those buildings, but “[e]ven if plaintiffs could prove that Bechtel was the contractor for buildings 6 and 7, they have failed to present sufficient evidence from which to conclude that the insulation installed there, and to which Whitmore was exposed, contained as-bestos. The specifications for buildings 6 and 7 called for the use of various types of thermal insulation, including both high temperature and medium temperature insulation. Plain-tiffs submitted no evidence that the high temperature insu-lation contained asbestos. The medium temperature insula-tion specified was ‘[e]ighty-five percent magnesia,’ which appears to generally include asbestos, although we note that nothing in the record demonstrates that 85 percent magnesia manufactured in the 1960’s necessarily contained asbestos. However, even if we assume that the medium temperature insulation did contain asbestos, there is no evidence demon-strating that this type of insulation, as opposed to the high temperature insulation, was actually installed on the pumps, valves, and boilers located in the vicinity in which Whitmire worked, much less evidence that Whitmire was exposed to such asbestos with ‘enough frequency and regularity as to show a reasonable medical probability that this exposure was a factor in causing [Whitmire’s] injuries.’ ” (Id. at p. 1093.)

In McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, the plaintiffs sought to hold Kaiser Gypsum Company, Inc. and Kaiser Cement Corporation responsible for the decedent’s exposure to asbestos contained in its prod-ucts delivered to the hospital at which the decedent had been employed as a plumber and pipefitter. The decedent had tes-tified that “he had never heard of a company called Kaiser Gypsum. As far as he knew, he had never worked with Kaiser Gypsum products, or near others using Kaiser Gypsum Prod-ucts.” (Id. at p. 1101.) “Viewed in its best light, plaintiffs’ evidence suggests that Kaiser Cement products might have been used once on a construction project at [the hospital]. There is no evidence, however, that these products contained asbestos at the time of their use. . . . [¶] . . . Although the joint compound was delivered to the contractor a few years before McGonnell began his employment at [the hospital], it is at least within the realm of possibility that McGonnell encoun-tered a wall with Kaiser joint compound during his 24 years of employment at [the hospital]. [¶] Does this possibility cre-ate a triable issue of fact? We think not. . . . All that exists in this case is speculation that at some time McGonnell might have cut into a wall that might have contained Kaiser joint compound that might have contained asbestos. The evidence creates only ‘a dwindling stream of probabilities that narrow into conjecture.’ ” (Id. at p. 1105.)

In Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, plaintiff claimed that her decedent had been exposed to asbes-


tos in the dust at three job sites at which the defendant Perini Corp. was general contractor. “At his deposition, Casey [the decedent] testified that he had worked at the Building as an apprentice plumber for approximately six months in the mid-1960’s. He did not know if any of the products he had used, or were used by others in his presence, contained asbestos. He was also unable to identify the brand name, manufacturer or supplier of any of the materials that had generated the dust later swept up or disturbed by Perini workers. Casey did not know if the dust and debris contained asbestos. As to the Auditorium jobsite, Casey recalled that Perini was involved in carpentry and framing. To the extent Perini’s activities created dust and debris, Casey thought there was ‘probably asbestos in whatever [the Perini workers] were cleaning up.’ Casey, however, did not know the brand name or manufactur-er of any of the materials used at the Auditorium jobsite. He also could not differentiate between products that allegedly contained asbestos and those that did not. Finally, as to the Hotel jobsite, Casey did not know whether Perini was even the general contractor at that site.” (Id. at pp. 1225-1226.) “Casey’s deposition made clear that he had no knowledge about whether any of the products that others used or dis-turbed in his presence contained asbestos.” (Id. at p. 1229.) “Notably absent [from the expert’s opinion that Casey was exposed to asbestos] [was] any factual support for the propo-sition that the challenged jobsites contained asbestos during the relevant time period. . . . [¶] Here, as well, plaintiffs did not produce any evidence that the dust and debris Casey al-legedly was exposed to by Perini workers contained asbes-tos.” (Id. at p. 1233.)

Similarly, in Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, the plaintiff claimed he had contracted an infectious fungal disease, called “Valley Fe-ver,” from his exposure to contaminated soil placed in a vacant lot near his place of work referred to as “Dumbo Downs.” (Id. pp. 1328-1329.) In rejecting as speculative the sufficiency of plaintiff’s evidence of causation and uphold-ing summary judgment in favor of the contractors that placed the soil at that site, the court concluded: “Miranda submitted evidence the soil, and sometimes the air, in Southern Cali-fornia is known to contain the pathogen causing his disease. This is evidence from which the jury could link dust inhala-tion in Southern California and his Valley Fever. However, there was no circumstantial evidence from which the jury could reasonably infer Dumbo Downs, as opposed to any other specific dirt pile, was the source of the Cocci fungal spore that infected Miranda. Dumbo Downs was only one of many reasonably possible sources of dust that may have contained the pathogen.” (Id. at p. 1342.) While there was no evidence in that case that the soil deposited by the defen-dants was the contaminated soil that caused or contributed to cause the plaintiff’s cancer, the court reaffirmed that “ ‘[P]laintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff’s exposure to defendant’s asbestos-containing product in reasonable medical probabil-

ity was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer.’ ” (Id. at p. 1338.)

In the present case, unlike those cited in support of the summary judgment, there is no question that plaintiff was ex-posed to the product alleged to contain the asbestos. The un-disputed evidence is that for some 20 years plaintiff regularly applied Cashmere Bouquet to her body. The only question here is whether the Cashmere Bouquet contained asbestos. As to that critical issue, while Colgate has produced evidence tending to show that it did not, the testimony of Fitzgerald unquestionably creates a triable issue that it did, without con-sidering any of plaintiff’s other evidence.

Because plaintiff has produced evidence creating a triable issue of fact on the critical issue disputed by Colgate, sum-mary judgment should not have been granted and the judg-ment must be reversed.

DISPOSITION

The judgment is reversed.2

Pollak, Acting P.J.We concur: Siggins, J., Jenkins, J.

2. The request for judicial notice of trial court proceedings and rulings in other cases is denied. An unpublished decision from an-other division of this court has also been brought to our attention. While the unpublished opinion may not be cited (Cal. Rules of Court, rule 8.115(a)), we note that there are many distinctions between the facts and evidence in that case and in the present case.



GISSELLE MORALES-SIMENTAL, a Minor, etc., et al., Plaintiffs and Appellants,

v.GENENTECH, INC., Defendant and

Respondent.

No. A145865In The Court of Appeal of the State of CaliforniaFirst Appellate DistrictDivision Four(Alameda County Super. Ct. No. HG13678136)

Filed September 22, 2017Certified for Publication October 19, 2017

COUNSEL

Mastrangelo Law Offices, Nicholas J. Mastrangelo and Margaret Blodgett; Gillin, Jacobson, Ellis Larsen & Lucey and Luke Ellis for Plaintiffs and Appellants.

Ropers, Majeski, Kohn & Bentley and Stephan A. Barber; McNamara, Ney, Beatty, Slattery, Borges & Ambacher, Thomas G. Beatty, Michael P. Clark, and Wilma J. Gray for Respondent.

ORDERBY THE COURT:

The written opinion which was filed on September 22, 2017, has now been certified for publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is ordered published in the official reports.

(Ruvolo, P.J., Rivera, J. and Streeter, J. participated in the decision.)

Ruvolo P.J.

OPINION

I. INTRODUCTION

Plaintiffs and appellants Gisselle Morales-Simental, a mi-nor, et al.1 appeal from summary judgment granted in favor of defendant and respondent Genentech, Inc., one of the defen-dants in this personal injury case. Morales-Simental alleges that she, with the other named plaintiffs, suffered injuries and sustained damages as a result of the negligence of defendant Vincent Inte Ong, an employee of Genentech, when Ong’s vehicle collided with the vehicle in which the decedent was riding.

1. Gisselle Morales-Simental is the daughter of the deceased, Marisol Morales. Plaintiffs and appellants Walter Morales, Sr. and Wilma Morales are the parents of the deceased. Plaintiff and appellant Louis Deandre Gonzalez, Jr. is the fiancé of the deceased.

The issue presented to us is whether Genentech’s em-ployee, Ong, was acting within the scope of his employment when he was involved in the automobile collision that killed Marisol Morales. Genentech asserts the trial court correctly determined the “going and coming” rule precludes Genen-tech’s liability because Ong was driving to Genentech for his own convenience and not at Genentech’s request or as part of his regular duties. Plaintiffs argue Genentech is liable under the “special errand” exception to the going and coming rule because at the time of the collision Ong was on a special er-rand requested by Genentech or as part of his regular duties. Plaintiffs contend there are triable issues of material fact as to whether Ong was on a special errand for Genentech at the time of the accident, and there were issues of credibility precluding summary judgment.

We conclude plaintiffs have failed to establish triable is-sues of material fact supporting the special errand exception sufficient to overcome summary judgment for Genentech. Accordingly, we affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

In the early morning of December 13, 2012, Ong’s vehicle collided with a vehicle driven by Louis Deandre Gonzalez, Jr. A passenger in the Gonzalez vehicle, Marisol Morales, was killed in the collision. The accident occurred at approxi-mately 3:35 a.m. on State Route 92 on the San Mateo Bridge. Ong owned the vehicle he was driving.

California Highway Patrol Officer Michael Aquino re-sponded to the scene of the accident and served as the lead in-vestigator. He interviewed Ong first on-scene and three more times in the following days. During the first interview at the scene of the collision, Ong said he was driving to Genentech in South San Francisco on his night off to collect resumes for “some upcoming interviews he had.” Ong told Officer Aquino that he worked the night shift at Genentech. Officer Aquino did not recall Ong mentioning any other purpose for his trip. At about midnight, a few hours before the accident, Ong told his friend Dan Alvarez that he was going to Genen-tech to do something important for work.

During his deposition, Ong gave various reasons for his trip to Genentech that morning. Ong testified that he intended to stop at Genentech to retrieve old resumes he had left in his mailbox and some personal belongings from his locker on his way to visit his grandmother in hospice care in South San Francisco. He also said one purpose of the trip to Genentech was to pick up the resume of his unemployed friend, Dan Alvarez, who had asked Ong if he could recommend Alvarez for a job. Ong’s testimony with respect to Alvarez’s resume was impeached; Alvarez stated he does not have a resume and never gave one to Ong.

Genentech is a biotechnology company that uses human genetic material to develop and manufacture pharmaceuti-cals. At the time of the accident, Ong was employed as a lead technician on the N1 (night) shift of Genentech’s Equip-


ment Preparation division at its headquarters in South San Francisco, California. The Equipment Preparation division cleans and sterilizes the tanks used to manufacture drugs at Genentech facilities. Marc Tumaneng was Ong’s supervisor. Ong’s regular shift at Genentech was Sunday, Monday, and Tuesday nights, and alternating Saturday nights, from 7:00 p.m. to 8:00 a.m. Ong’s duties as lead technician included assessing workload and assigning tasks to the other techni-cians on his shift. Genentech presented evidence that all of Ong’s lead technician duties were performed at Genentech during work hours.

Ong resided in Hayward, California and commuted to Ge-nentech in his own vehicle. Genentech never owned, leased, or possessed Ong’s 1999 Range Rover or Land Rover, the vehicle he was driving at the time of the accident. Genentech did not require Ong to drive or own a vehicle, and did not compensate Ong for travel time or expenses.

As lead technician on his shift, Ong participated with Tu-maneng in conducting interviews and hiring. Beginning in the summer of 2012, Genentech increased its run rate for drug production. That same year, Genentech began receiving more tanks for sterilization, at least in part due to a prob-lem with mold found in tanks that were improperly cleaned in Singapore. As a result, the Equipment Preparation divi-sion’s workload increased in 2012, and Genentech added an additional night shift and hired more labware technicians. Tumaneng testified that this December 2012 hiring was con-ducted at least in part to replace “several” technicians who had recently quit the N1 shift. Genentech hired through an agency called PRO Unlimited. Tumaneng’s role in the hiring process included using a computer program called WAND to select candidates from PRO Unlimited to interview.

A few days before the accident, Ong and Tumaneng to-gether interviewed six candidates for two open positions on the N1 shift. On Monday, December 10, 2012, after complet-ing the six interviews, Tumaneng and Ong chose two candi-dates to hire. The work week for Ong and Tumaneng ended at 8:00 a.m. on Wednesday, December 12. On Wednesday, December 12, 2012 at 3:37 p.m., while he was off-duty, Tu-maneng received an email from Maybelle Gonzales, a Client Services Coordinator at PRO Unlimited, advising him that Genentech’s human resources department had rejected one of the two candidates he and Ong had chosen. At 5:53 p.m., Tumaneng replied to Gonzales’s email to say he would look into other candidates; Tumaneng copied Ong on the reply email. By 6:06 p.m., through WAND, Tumaneng had chosen four additional candidates to schedule for interviews.

At 6:06 p.m. on December 12, 2012, PRO Unlimited, also through WAND, sent Ong four automated messages. The body of each email stated that it was an “automated email from the WAND system.” Each email stated that Tumaneng had requested an interview and gave the candidate’s name, but did not show that any interviews had been scheduled. The evidence does not establish whether Ong opened any of those emails before the time of the accident at 3:35 a.m. on

December 13, 2012; however, Ong stated he can access his work email on his personal cell phone.

Plaintiffs filed a complaint in May 2013 alleging Ong and Genentech were both liable for the accident that caused Marisol Morales’ death, asserting causes of action for mo-tor vehicle negligence and general negligence, together with a survivorship action. Plaintiffs’ claim against Genentech was based on the doctrine of respondeat superior. Genentech moved for summary judgment. Although the trial court is-sued a tentative ruling in plaintiffs’ favor,2 following argu-ment it reversed course and granted the motion. The court then entered judgment in favor of Genentech, dismissing it from the case and leaving Ong as the sole defendant. This timely appeal followed.

III. DISCUSSION

A. Standard of ReviewWe review the trial court’s entry of summary judgment de

novo. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 253.) “[S]ummary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judg-ment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A moving defendant can meet its initial burden by showing that one or more elements of the plaintiff’s cause of action cannot be separately established. (Nazir, supra, 178 Cal.App.4th at p. 253.) Once the defendant meets the initial bur-den, the burden shifts to the plaintiff to show the existence of a triable issue of material fact. (Ibid.)

On appeal, we view the evidence in the light most favor-able to the plaintiffs as the parties opposing summary judg-ment, and we liberally construe the plaintiffs’ evidence and strictly scrutinize the defendant’s evidence, resolving ambi-guities in the plaintiffs’ favor. (Wiener v. Southcoast Child-care Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) On appeal, “we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law.” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)

The weight of authority holds that the standard for review-ing the trial court’s evidentiary rulings is abuse of discretion (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852), but there is some dispute as to whether evidentiary rul-ings made in the summary judgment context should instead be reviewed de novo (see In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 141). We need not resolve this issue, because, as we discuss below, our conclusions as to the evidentiary issues raised on appeal would be the same under either standard. An appellate court’s review of the evi-dence on summary judgment does not include evidence to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c).)

2. The trial court’s tentative ruling of March 2, 2015 does not ap-pear in the record, despite plaintiffs’ request that it be included.


B. Applicable Principles of Respondeat Superior, the Going and Coming Rule, and the

Special Errand Exception

Under the doctrine of respondeat superior, an employer is vicariously liable for the tortious conduct of its employees within the scope of their employment. (Jorge v. Culinary In-stitute of America (2016) 3 Cal.App.5th 382, 396.) “ ‘[T]he modern justification for vicarious liability is a rule of policy, a deliberate allocation of a risk. [¶] The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing busi-ness.’ ” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959–960 (Hinman).) The principal justification for the application of the doctrine of respondeat superior is that the employer may spread the risk through insurance and carry the expense as part of its costs of doing business. (Johnston v. Long (1947) 30 Cal.2d 54, 64.)

The scope of employment has been interpreted broadly under the respondeat superior doctrine in California. (Farm-ers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004.) Acts necessary for the employee’s comfort or convenience at work, or where an employee is tending to his own business at the same time as that of his employer, do not remove the employee from the scope of employment, “ ‘ “unless it clearly appears that neither directly nor indirectly could he have been serving his employer.” ’ ” (Ibid.) The employer’s liability extends to risks inherent in or incidental to the employer’s enterprise. (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618–619.)

Nevertheless, there are exceptions to the respondeat supe-rior doctrine. (Hinman, supra, 2 Cal.3d at p. 960.) Under the going and coming rule, for example, an employee commut-ing to or from work is typically outside the scope of employ-ment, and the employer is not liable for the employee’s torts. (Id. at p. 961, citing 1 Witkin, Summary of Cal. Law (7th ed. 1960) pp. 448–449.) “The ‘going and coming’ rule is some-times ascribed to the theory that the employment relationship is ‘suspended’ from the time the employee leaves until he returns [citation], or that in commuting he is not rendering service to his employer [citation].” (Hinman, supra, 2 Cal.3d at p. 961.) With a few exceptions, employees are not within the scope of employment while commuting. (Ibid.)

One exception to the going and coming rule is the special errand rule, which provides that an employee is within the scope of his employment while performing an errand either as part of his regular duties or at the specific order or request of his employer. (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789 (Boynton).) “[T]he employee is considered to be in the scope of his employment from the time he starts on the errand until he has returned or until he deviates therefrom for personal reasons.” (Ibid.) The employer is liable for the employee’s torts in the course of a special errand because the errand benefits the employer. (Ibid.) It is not necessary that the employee is directly engaged in his job duties; in-

cluded also are errands that incidentally or indirectly benefit the employer. (Ibid.) It is essential, however, that the errand be either part of the employee’s regular duties or undertaken at the specific request of the employer. (Ibid.)

Many court decisions on the going and coming and special errand rules include some discussion of workers’ compensa-tion law. (Harris v. Oro-Dam Constructors (1969) 269 Cal.App.2d 911, 913–914 (Harris).) Workers’ compensation de-cisions construe the scope of employer liability more broadly than do tort cases. (Munyon v. Ole’s, Inc. (1982) 136 Cal.App.3d 697, 702–703 (Munyon).) Instead of the tort law re-quirement that an employee be acting within the “scope of employment,” workers’ compensation cases use the phrase, “ ‘arising out of and occurring in the course of employ-ment,’ ” which has been interpreted to include activities such as collecting a paycheck or commuting to work where the employee receives a per diem allowance for travel expenses. (Id. at pp. 701–702; see Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th 254, 259 (Anderson).) One rea-son for the broader interpretation is that the goal of work-ers’ compensation law is to reimburse the injured worker, whereas the object in tort cases is to determine whether vi-carious liability should be extended beyond those who were directly negligent. (Munyon, supra, 136 Cal.App.3d at p. 702.) “Workers’ compensation decisions can be helpful in determining whether an employer should be vicariously li-able, but they are not controlling precedent.” (Anderson, su-pra, 14 Cal.App.4th at p. 259.)

Whether an employee was acting within the course and scope of his employment is generally a question of fact, but if the facts are undisputed and no conflicting inferences are possible, the question is one of law. (Munyon, supra, 136 Cal.App.3d at p. 701.)

C. Plaintiffs’ Three Causes of Action

Plaintiffs seek damages pursuant to three causes of action against Ong and Genentech: two in the form of negligence claims (for motor vehicle negligence and general negligence, respectively), and one in the form of a survivorship action incorporating the negligence allegations. Plaintiffs allege they suffered injuries and sustained damages as a result of the negligence of defendant Ong when his vehicle struck the vehicle of Marisol Morales, resulting in her injury and death. It is undisputed that Ong was the driver and owner of the ve-hicle that hit the vehicle in which Marisol Morales was a pas-senger. Accordingly, the only theory of Genentech’s liability as to all three causes of action is the doctrine of respondeat superior, as Ong’s employer.

Genentech asserts the material facts show that, at the time of the accident, Ong was not performing a special errand for Genentech as a matter of law, since he was not acting on a special request from Genentech or as part of his regular du-ties. Plaintiffs contend there are triable issues of material fact as to whether, at the time of the accident, Ong was perform-ing a special errand for Genentech. Plaintiffs advance three


arguments to bring Ong’s trip within the special errand ex-ception: 1) Ong, as a lead technician tasked with hiring, could order himself to perform a special errand in connection with that task; 2) the emails of December 12, 2012 were a request to Ong to perform a special errand to complete the hiring; and 3) Ong’s trip to Genentech on his night off to review resumes was within his regular duties at Genentech.

We address each argument in turn to determine whether it creates a triable issue of material fact as to whether, at the time of the accident, Ong was engaged in a special errand either at Genentech’s request or as part of his regular duties.

1. Ong, As a Shift Lead Who Was Tasked with Hiring, Could Not Request Himself to Perform a Special Errand on

Genentech’sBehalf.First, plaintiffs contend the evidence supports a reason-

able inference that Genentech delegated authority to Ong as a shift lead tasked with hiring responsibilities, and that Ong’s decision to drive to Genentech on December 13, 2012 to re-view resumes was a reasonable exercise of that authority. Plaintiffs argue this creates a triable issue of material fact as to whether Ong had the authority to request the errand of himself on Genentech’s behalf. We disagree.

The appellate court in Vivion v. National Cash Register Co. (1962) 200 Cal.App.2d 597, 601, 603–606 (Vivion) af-firmed a jury verdict releasing the employer from liability, holding the jury could determine that the employee was not acting within the scope of employment when she decided independently to drive to her workplace outside of working hours, without any request or expectation from her employer. In Vivion, an employee (Rauscher) decided to return to her workplace after her shift to practice using an accounting ma-chine she was responsible for demonstrating the following day. (Id. at p. 603.) On her drive home after practicing at the office, Rauscher was involved in a collision. (Ibid.) Rauscher, like her fellow employees, had a key to the office, but her employer did not require her to work overtime or to come in after hours for additional training. (Id. at pp. 603–604.) No supervisor or any other employee had asked Rauscher to go to the office that evening. (Id. at p. 604.)

Vivion was not decided at summary judgment, but in-stead went to the jury, which found in favor of the employer. (Vivion, supra, 200 Cal.App.2d at pp. 600–601.) In affirm-ing the judgment, the appellate court in Vivion observed that the mere fact that a trip may be related to an employee’s job does not impose liability on the employer. (Id. at p. 606; see Harris, supra, 269 Cal.App.2d at p. 917 [“It is said that the right of control ‘goes to the very heart of tortious responsibil-ity.’ [Citation.] . . . [Citation.] The question is one of a right to control the trip.”].) The Vivion court held that, to bring an employee’s trip within the special errand exception, the employer must request or at least expect it of the employee. (Vivion, at p. 606.)

Furthermore, in Munyon, supra, 136 Cal.App.3d at pp. 706–707, the appellate court affirmed summary judgment for the employer because there were no triable issues of ma-terial fact as to whether the employee (Edwards) was on a special errand when she went to her workplace on her day off to pick up her paycheck. Edwards, a hardware store ca-shier, did not use her car at work, and her employer did not require her to have a car. (Id. at p. 700.) After picking up her paycheck, Edwards was involved in a traffic accident on her way home. (Ibid.) The court rejected plaintiff’s argument that the employer created the risk by holding her paycheck, reasoning that such a theory was “too attenuated and does not comport with the realities of commercial and industrial relationships.” (Id. at p. 706.) The Munyon court held that Edwards’ trip to pick up her paycheck was undertaken for her own convenience, not at the request of her employer, and therefore did not come within the special errand exception. (Id. at pp. 700, 706.)

On the other hand, in Jeewarat v. Warner Bros. Enter-tainment Inc. (2009) 177 Cal.App.4th 427, 436 (Jeewarat), the court reversed summary judgment for the employer (Warner), holding that an employee’s attendance at a busi-ness conference authorized and funded by the employer may come within the special errand exception. There, the em-ployee (Brandon) was vice-president of anti-piracy internet operations at Warner. (Id. at p. 431.) Brandon was involved in a traffic accident while driving home from the airport after attending an out-of-town business conference sponsored by one of Warner’s anti-piracy vendors. (Id. at pp. 431–432.) The Jeewarat court held the evidence Warner paid for Bran-don’s airfare, hotel, and airport parking, coupled with the reasonable inference that Warner would benefit from the in-formation Brandon learned at the conference, created triable issues of material fact as to whether the business trip was a special errand. (Id. at pp. 437, 438–439.)

In this case, like the employees in Vivion and Munyon, Ong, on his own, for his own reasons in the pre-dawn hours of December 13, chose to drive to Genentech. The record shows no evidence that anyone from Genentech requested that Ong drive to Genentech in the dead of night. Ong testi-fied in his deposition that he did not expect to be paid for the trip. And in contrast to Jeewarat, there was no evidence Ge-nentech authorized Ong’s trip by paying his travel expenses.

Plaintiffs point out that, unlike the employee in Vivion who had no authority to assign or delegate tasks, Ong was a shift lead whose duties included assigning tasks to other technicians on his shift. They assert that Ong, as a superviso-rial employee tasked with hiring, had authority to act on Ge-nentech’s behalf and, in essence, request himself to complete a special errand connected to that task. This argument finds no support in the extensive body of going and coming case law, and we decline plaintiffs’ invitation to expand the spe-cial errand exception in the manner they suggest. What they propose is an invitation to self-serving pretense by anyone with a plausible claim to supervisorial authority.


Even in Jeewarat, where the employee was a vice-presi-dent, the court did not base its conclusion on a theory that the vice-president had the authority to order himself to go on the business trip on Warner’s behalf; instead, an important factor in the court’s decision was Warner’s authorization of the trip by paying the vice-president’s travel expenses. (Jeewarat, supra, 177 Cal.App.4th at p. 437.) Ong was a shift lead with less authority than the vice-president in Jeewarat, and he worked under his direct supervisor, Tumaneng. We cannot accept the theory that Ong had the authority to order himself to perform a special errand for Genentech. Such reasoning would expand the special errand rule to allow employees at various levels to request special errands of themselves on behalf of their employers, thereby stripping the employer of the ability to control when it will be liable for an employee’s off-shift activities.

In its order granting summary judgment for Genentech, the trial court observed that even in workers’ compensation cases, which embrace the more lenient standard of “ ‘arising out of and occurring in the course of employment’ ” (see Mu-nyon, supra, 136 Cal.App.3d at pp. 701, 702), an employee’s decision to take work home or to drive to work at an unusual time does not bring the trip within the scope of employment. Plaintiffs cite several workers’ compensation cases in order to distinguish them from the facts here, but as noted, work-ers’ compensation cases are not controlling precedent in tort cases. (Anderson, supra, 14 Cal.App.4th at p. 259.) Even accepting as true plaintiffs’ assertion that Ong took it upon himself to drive to Genentech on his day off to respond to a hiring crisis, under Vivion, an employee’s unilateral decision to commute to work after hours does not bring the trip within the special errand rule. (Vivion, supra, 200 Cal.App.2d at p. 606.) We reject the argument that Ong could order himself to perform a special errand on Genentech’s behalf.

2. The Hiring Assignment, Coupled with the Genentech Emails of 12/12/12

Advising Further Action Was Necessary, Was Not a Request to Ong to Perform a Special Errand to Complete theAssigned

Hiring Task.Next, plaintiffs argue that, because Genentech gave Ong

the ongoing assignment of assisting with the allegedly urgent hiring, and because Ong received emails on December 12, 2012 advising further action was necessary, it can be inferred that those emails constituted a request by Genentech to Ong to perform a special errand. Again, we must disagree.

In Boynton, supra, 139 Cal.App.2d at p. 791, the appel-late court upheld the verdict against the employer (McKales), holding the jury could reasonably infer that the employee (Brooks) was on a special errand for his employer when he caused an accident on his way home from a company ban-quet. While McKales argued the banquet was purely a social function Brooks chose to attend for his own enjoyment, the facts showed it was an annual company banquet where the

vice-president of sales honored employees for their years of service. (Id. at pp. 790–791.) Attendance was not compul-sory, but was expected, and McKales may have benefitted from the banquet by encouraging long-term employment. (Id. at p. 791.) Nonetheless, Boynton made clear that it is not enough for the errand to benefit the employer; the employer must also request or expect the employee to attend. (Id. at pp. 789, 791.)

In Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1059–1060 (Tognazzini), the appellate court affirmed a jury verdict releasing the employer (the District) from liability for an accident caused by the em-ployee (Ho) while she was on her way home from finger-printing. Ho worked for the District as a tutor, and the state required all persons working with children to be fingerprint-ed. (Id. at p. 1056.) The District itself did not mandate finger-printing, but Ho’s supervisor at the District told her about the state law requirement and gave her a phone number to call to make an appointment. (Ibid.) Ho was free to choose the date, time, and location of the fingerprinting appointment, and the District did not pay her travel expenses. (Id. at p. 1058.) The Tognazzini court upheld the conclusion that Ho was not on a special errand for the District at the time of the collision, noting that the fingerprinting was not a direct request of the District, but rather was a state mandate, and because Ho paid her own travel expenses, controlled her own method of travel, and chose when and where to fulfill the requirement. (Id. at pp. 1058–1059.)

In contrast to Boynton, the facts in this case do not cre-ate a reasonable inference that Genentech expected Ong to drive to work on the early morning of December 13, 2012, to respond to a hiring crisis. In Boynton, the employee received an invitation to attend a company banquet, and the practice of honoring employees for their service created an inference that attendance was not only invited, but expected. (Boynton, supra, 139 Cal.App.2d at pp. 790–791.) Here, the day before the accident, Ong was copied on an email from Tumaneng, and received automated emails from PRO Unlimited, letting him know that one of the new hires had fallen through and further interviews were necessary. It is not clear whether Ong read these emails before the collision, but even assum-ing he did, and assuming he decided to drive to Genentech on the morning of December 13, 2012 to prepare for those interviews, there is still no evidence that anyone at Genen-tech requested or expected that Ong would drive to work that morning.

Moreover, even if it could be inferred that Ong read the emails before driving to Genentech and those emails con-stituted a request that Ong continue to assist with the hiring process, it is clear they did not require Ong to come in at a specific day or time. Even though Tognazzini involved finger-printing ordered by the state and not by the employer, it was also germane to the court’s decision that the employee had full control over when and where she completed the require-ment, and over her means of transportation. (Tognazzini, su-


pra, 86 Cal.App.4th at pp. 1058–1059.) On this record, even if the December 12 emails to Ong could be interpreted as a request to continue work on the overall assignment of hiring, they cannot be interpreted as a request that Ong drive to Ge-nentech on December 13, or on any of his days off.

3. Ong’s Trip to Genentech Was Not Part of His Regular Duties of Hiring for the N1

Shift.Finally, Plaintiffs assert there are triable issues of material

fact concerning the extent of Ong’s hiring duties and whether they included driving to Genentech on his day off to review resumes. Again, we disagree.

In Harvey v. D & L Constr. Co. (1967) 251 Cal.App.2d 48, 49, 52–53 (Harvey), the appellate court reversed a nonsuit in favor of the employer (D & L), holding that the jury could reasonably infer that the employee (Chism) was on a special errand as part of his regular duties when he was involved in a collision while driving himself and a coworker (Richards) from their work site in Yuma, Arizona to their homes in Pasa-dena, California. Chism, an experienced cement finisher, first worked for D & L in California. (Id. at p. 49.) The D & L superintendent in Yuma, Arizona asked Chism several times to come to work there, and eventually he accepted. (Ibid.) The superintendent sought out Chism because he was hav-ing trouble keeping skilled cement finishers on the Yuma job due to the heat and the remoteness of the location. (Id. at pp. 50, 52.)

While Chism worked for D & L in Yuma, he drove home to Pasadena every weekend, sometimes using his own truck, which he was allowed to fill with D & L gas, or sometimes using his superintendent’s truck. (Harvey, supra, 251 Cal.App.2d at p. 51.) Chism often used his truck to haul company supplies, both at the work site and as part of his commute. (Ibid.) Chism hired other cement finishers from California at D & L’s request. (Ibid.) One of his hires, Richards, regularly rode with Chism on his weekend commute, and was a pas-senger in his truck at the time of the accident. (Ibid.) Chism testified that, on the weekend of the accident, D & L did not ask him to bring any employees or equipment on his return trip. (Ibid.) The Harvey court found that, even though D & L made no specific request of Chism that weekend, there was sufficient evidence to support an inference that Chism was performing an errand for D & L as part of his regular duties at the time of the accident. (Id. at pp. 52–53.)

Here, the evidence does not support an inference that Ong’s regular duties of hiring at Genentech included driving to work on his day off to review resumes. Unlike Harvey, where the employer regularly expected the employee to haul materials and recruit employees as part of his long-distance commute, there is no evidence Genentech ever expected Ong to come in outside of his normal working hours to assist with hiring. The evidence plaintiffs introduced to the con-trary included that Ong sometimes worked overtime, and did so on December 10, 2012, to help Tumaneng complete the

interviews scheduled that day. Plaintiffs also point to evi-dence that Ong attended once-monthly off-shift leadership meetings and occasionally communicated with coworkers on his days off by text or by phone. Evidence that an employee sometimes worked overtime, attended scheduled work meet-ings, and communicated with coworkers outside of work-ing hours cannot support a reasonable inference that he was regularly expected to come into the office on his days off to review resumes.

Finally, plaintiffs rely on Jeewarat, supra, 177 Cal.App.4th at p. 437, contending that, like the vice-president whose regular duties were to prevent internet piracy, Ong’s regular duties included hiring, and he was carrying out those duties at the time of the collision. They further argue that the Jeewarat court found that driving home from the airport was part of the vice-president’s regular duties, without discussing whether the vice-president had ever driven a car as part of his job. The Jeewarat court, as we note above, did not base its holding on a theory that driving home from the airport was part of the vice-president’s regular duties. (Jeewarat, supra, 177 Cal.App.4th at pp. 436–437.) Instead, the court conclud-ed that the special errand doctrine may be applied to a busi-ness trip, and that Warner’s payment of the vice-president’s travel expenses could support a reasonable inference that Warner authorized the trip and expected to derive a benefit from the vice-president’s attendance. (Ibid.) Jeewarat’s rea-soning cannot support an argument that Ong was engaged in his regular duties at the time of the accident. Since plaintiffs put forth no evidence that Ong had even once before made a special trip to Genentech to review resumes or perform any task connected to hiring, it cannot be inferred that such a trip was part of his regular duties in hiring.

D. Credibility and Summary Judgment

Plaintiffs argue that contradictions in the declarations and deposition testimony of both Ong and Tumaneng raise cred-ibility questions for the jury. They invoke Code of Civil Pro-cedure section 437c, subdivision (e), which provides, “[i]f a party is otherwise entitled to summary judgment pursuant to this section, summary judgment shall not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact . . . .” (Code Civ. Proc., § 437c, subd. (e); see Preis v. American Indemnity Co. (1990) 220 Cal.App.3d 752, 760.)

Plaintiffs contend that Ong and Tumaneng are the sole witnesses to the material fact of whether Tumaneng asked Ong to perform an errand connected to the hiring between 3:37 p.m. on December 12 and 3:35 a.m. on December 13, 2012. Ong denies that anyone from Genentech asked him to perform an errand during that time period, and Tumaneng


states that he cannot remember whether he made any request of Ong. Plaintiffs note, further, that Ong gave inconsistent testimony about his reasons for driving to Genentech on De-cember 13, 2012, and that one of those reasons, to pick up Alvarez’s resume, was proven false. In addition, they point to supposed contradictions in Tumaneng’s testimony as to the scope of Ong’s duties as shift lead, the extent of Ong’s involvement in hiring, when future interviews at Genentech were scheduled, and whether overtime at Genentech must be pre-approved.

Code of Civil Procedure section 437c, subdivision (e) fo-cuses on the inability to cross-examine a witness who has not been deposed, but has submitted a declaration or affidavit. Here, Ong and Tumaneng both gave deposition testimony. Genentech deposed Ong in November 2013. Plaintiffs were unable to depose Ong because Ong asserted his Fifth Amend-ment rights, and the criminal proceeding concerning the col-lision concluded on July 28, 2015. Meanwhile, according to plaintiffs, the civil action was stayed pending appeal from entry of summary judgment on June 16, 2015.

In its summary judgment order, the trial court acknowl-edged that Ong gave inconsistent testimony concerning his reasons for driving to Genentech that morning. The court then stated that, even resolving the conflict in plaintiffs’ fa-vor by taking as true Ong’s statement that he was driving to Genentech to pick up resumes for upcoming interviews, there was still no evidence that anyone from Genentech asked Ong to drive to work on the early morning of December 13, 2012. In essence, the court found that any credibility issues surrounding Ong’s testimony were not material to the resolu-tion of the special errand issue on which the motion turned. Suffice it to say we agree.

E. Evidentiary Objections

As noted, there is an outstanding issue as to whether the standard for reviewing the trial court’s evidentiary objections is de novo or abuse of discretion (In re Automobile Antitrust Cases I & II, supra, 1 Cal.App.5th at p. 141; Serri v. Santa Clara University, supra, 226 Cal.App.4th at p. 852), but we need not resolve the issue. Here, the trial court sustained ob-jections to plaintiffs’ Exhibits G, H, and I as irrelevant and immaterial. The trial court also noted its decision on summa-ry judgment would be the same regardless of whether those exhibits were in evidence.

The sustaining of an objection to Exhibit I appears to have been inadvertent error, since Genentech did not raise an ob-jection to that exhibit. Exhibit I is plaintiffs’ Second Request for Production of Documents to Genentech and relevant por-tions of Genentech’s responses, including Tumaneng’s email of December 6, 2012, advising Genentech’s hiring agency that he and Ong would be conducting the interviews of De-cember 9 and 10, 2012. Since Genentech raised no eviden-tiary objection to Exhibit I, the trial court erred in excluding it from evidence, and we view it as properly admitted into

evidence before the court. Having found it to be admissible, however, we do not see it as material.

The trial court sustained Genentech’s objections to Exhib-its G and H as irrelevant and immaterial. Exhibit G contains portions of plaintiffs’ Second Request for Production of Doc-uments to Ong, and Ong’s responses, including documenta-tion of his overtime hours in 2012 and a chart showing the number of employees on Ong’s shift in March 2013. Exhibit H contains portions of plaintiffs’ First Request for Production of Documents to Genentech, and responses, including Ong’s December 2012 work schedule and another chart showing the number of employees on his shift in April 2012. The trial court found that evidence of Ong’s overtime and the number of employees on his shift was irrelevant and immaterial to its decision. Whether under the de novo standard or the abuse of discretion standard, we find no error on this point, since Ong’s overtime hours and the number of employees on his shift are not essential to our analysis of whether Ong was on a special errand for Genentech at the time of the accident.

IV. DISPOSITION

Affirmed.

Streeter, J.We concur: Ruvolo, P.J., Rivera, J.



DRYDEN OAKS, LLC et al., Plaintiffs and Appellants,

v.SAN DIEGO COUNTY REGIONAL

AIRPORT AUTHORITY et al., Defendants and Respondents.

No. D069161In The Court of Appeal of the State of CaliforniaFourth Appellate DistrictDivision One(Super. Ct. No. 37-2014-00004077-CU-EI-NC)

APPEAL from a judgment of the Superior Court of San Diego County, Earl H. Maas, III, Judge. Affirmed.

Filed September 26, 2017Modified and Certified for Pub. October 19, 2017

COUNSEL

Freeland McKinley & McKinley, Steven A. McKinley and Karen G. McKinley for Plaintiffs and Appellants.

San Diego County Regional Airport Authority and Amy Gonzalez; Gatze Dillon & Ballance LLP, Lori D. Ballance, Stephen F. Tee and Michael P. Masterson for Defendant and Respondent San Diego County Regional Airport Authority.

Thomas E. Montgomery, County Counsel, Judith A. McDonough and John P. Cooley, Deputy County Counsel for Defendant and Respondent County of San Diego.

ORDER MODIFYING OPINION AND DENYING REHEARING, CERTIFYING OPINION FOR

PUBLICATION NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on September 26, 2017, is modified as follows:

1. The paragraphs that start at or near the end of page 32 and continue to the end of page 33 are replaced with the fol-lowing four paragraphs:

Citing Terminals Equipment Co. v. City and County of San Francisco (1990) 221 Cal.App.3d 234, 245 (Termi-nals Equipment), Durkin suggests that his claims are viable regardless whether a formal announcement was made because the planning for the airport at some point transitioned to an acquisition phase. While it is true that Terminals Equipment allows for the possibility that something less than a “formal announcement” will sup-port a claim for Klopping damages, the case does not say that intent alone is sufficient. Indeed, Terminals

Equipment expressly recognizes that under Klopping, the intent to condemn must in some way be communi-cated to the public so as to cause a diminution in the value of the property. (221 Cal.App.3d at p. 245, citing Klopping, supra, 8 Cal.3d at p. 52.)

There are several problems with Durkin’s theory as ap-plied to the facts of this case. He relies primarily on the County’s 1995 FAA grant application seeking funds to acquire Lots 24 and 25 and a March 1996 letter request-ing authorization to use the grant funds for purposes other than acquisition of the property. These documents fall short of demonstrating a publicly communicated unequivocal intent to acquire the property. Rather, they represent a desire to explore possible purchase of the lots if it proved feasible. (See Terminals Equipment, su-pra, 221 Cal.App.3d at p. 246.) Durkin’s own evidence shows it was not feasible. Negotiations with Durkin’s predecessors in interest proved fruitless, and rising land prices meant that any purchase would exceed the amount of the grant, thus making it impractical.

Interest in purchasing property if an acceptable price can be agreed upon is a far cry from an unequivocal in-tent to acquire. Moreover, even if the 1995 FAA grant application somehow rose to the level of actual intent to condemn the property, the very documents relied on by Durkin show that any intent on the County’s part was short-lived. By March 1996, five years before Durkin purchased the two lots, the County abandoned any plan or interest in acquiring Lots 24 and 25. If there was any artificial effect depressing the price of the two lots, it was necessarily transitory and had long dissipated by the time Durkin acquired his interest in the properties.

Durkin also cites the County’s 2013 grant application to the Federal Aviation Administration for funds for the County’s Master Plan to “continue the facility planning process described in previous McClellan-Palomar Air-port Master Plan Studies (1995–2015), into the next planning period of 2015–2035,” which will “define the type and extent of development needed to accommodate the current and future aviation needs as a Federal Avia-tion Regulation (FAR) Part 139 Certificated National Plan of Integrated Airport Systems (NPIAS) airport.” The document, however, contains no reference to ac-quiring any specific property in connection with plan-ning for the airport. Durkin thus failed to meet his bur-den on summary judgment to overcome Respondents’ showing that there was no unreasonable conduct on their part to support a claim under Klopping.

2. In the final paragraph of the modified language prior to the disposition, in the second sentence after “any specific


property in connection with planning for the airport,” insert footnote 15 as follows:

Similarly, Durkin asserts that “respondents[‘] violation of acquisition guidelines is prima facie evidence of un-reasonable pre-condemnation conduct” and that “[f]ed-eral guidelines require prompt acquisition of properties needed for the RPZ, without forcing property owners to bring an action for inverse condemnation.” But he pro-vides no evidentiary citations to support this claimed wrongful conduct by the County. (See Citizens For A Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 113 [“[F]ailure to present all rele-vant evidence on the point ‘is fatal.’ [Citation.] ‘A re-viewing court will not independently review the record to make up for appellant’s failure to carry his bur-den.’ “].) In his reply brief, Durkin also points to a 2005 FAA grant agreement in which the County represented that it will acquire “fee title or less than fee interest in the Runway Protection Zones for runways that presently are not under its control within 10 years of this Grant Agreement.” Durkin did not raise this argument in his opening brief and we decline to address it. (See Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830. [“ ‘A contention made for the first time in an appellant’s reply brief, unaccompanied by any reason for omission from the opening brief, may be disregarded.’ “].)

Appellants’ petition for rehearing is denied.There is no change in judgment.The opinion in the above-entitled matter filed on Septem-

ber 26, 2017 was not certified for publication in the Official Reports. As the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), it is ordered that the words “Not to Be Published in the Official Reports” appearing on page 1 of said opinion be deleted and the opinion be published in the Official Reports.

NARES, Acting P. J.Copies to: All parties

OPINION

In 2001, Michael Durkin used two limited liability compa-nies—Dryden Oaks LLC and Durkin-CAC Lot 24, LLC—to purchase two lots directly adjacent to the McClellan Palomar Airport (Airport) in the City of Carlsbad, California (City). His development plans for the two lots were initially success-ful despite determinations by the San Diego County Regional Airport Authority (Authority) that the proposed projects were not compatible with the Airport. Overriding the Authority’s objections, the City issued a planned industrial permit and Durkin completed the construction of a commercial building on one of the lots in 2005. He also obtained a permit from the

City for construction of a second building on the other lot. Both permits included provisions in which Durkin agreed to hold the City harmless for any liability arising out of ap-proval of the projects.

Durkin’s permit on the second lot expired in 2012 without the commencement of any construction. By the time Durkin sought to restart the permitting process with the City, the Au-thority had adopted an Airport Land Use Compatibility Plan (ALUCP) that designated Durkin’s properties as being within a Safety Zone that carries specific limiting recommendations for compatible land uses. Despite having approved Durkin’s previous permit application, the City now refused to override the recommendations in the ALUCP.

Under California law, it is the City that bears ultimate re-sponsibility for deciding which property development proj-ects to permit. But apparently unable or unwilling to sue the City, in February 2014 Durkin filed an inverse condemnation action against the Authority and the County of San Diego (County). Durkin’s complaint asserted that the value of his property was depressed by the Authority’s 2010 adoption of the ALUCP and that the decrease in value constituted a gov-ernmental taking requiring the County and the Authority to provide compensation.

We conclude the trial court properly entered summary judgment in favor of the County and the Authority on the ground that undisputed evidence shows there was no taking by these defendants. To the extent Durkin has any arguable claim, which we express no opinion on, it would be against the City. Based on established legal principles, nothing done by the Authority or the County amounts to a taking of Dur-kin’s property. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At the time the complaint was filed, Dryden Oaks owned a parcel of real property known as Lot 25 and Durkin-CAC owned a parcel known as Lot 24. The two lots are located in the County of San Diego and the City of Carlsbad at the west end of the Airport, adjacent to the end of a runway. When Durkin purchased the lots, they were designated as part of the Airport’s Runway Protection Zone (RPZ) on the Coun-ty’s Airport Layout Plan (ALP), a long-range planning tool that preceded the ALUCP. The Federal Aviation Administra-tion defines a RPZ as “[a]n area at ground level prior to the threshold or beyond the runway end to enhance the safety and protection of people and property on the ground.” In March 2000, Durkin entered into an agreement to purchase Lots 24 and 25 (and a third lot, Lot 23, not at issue in the litigation), which were part of a development known as the Carlsbad Airport Centre, from the Callaway Golf Company. Durkin visited the property 14 times prior to signing the purchase agreement and observed the lots’ proximity to the airport.

The transaction was in escrow for approximately 15 months, closing in June 2001. Durkin paid $474,000 for Lot 24 and $310,000 for Lot 25. Prior to the close of the transac-


tion, Durkin submitted an application to the City for a permit to construct a 29,000 square foot industrial building on Lot 24. In December 2001, the City submitted the application to the Authority for a determination as to whether the proposed project was consistent with the 1994 Comprehensive Land Use Plan for the Airport, a predecessor plan to the ALUCP. Roughly two months later, the Authority issued a determina-tion that it could not make an administrative finding that the project was consistent with that plan because the property was “located within the 75 CNEL zone of the McClellan-Palomar Airport” and the proposed industrial development was not compatible. The Authority’s letter communicating its decision indicated that the City could pursue the develop-ment through the override procedures contained in Public Utilities Code section 21676.1

In June 2002, the City passed a resolution overriding the Authority’s determination “as to noise compatibility only” conditioned on “internal noise reduction, Notices of Restric-tions, Hold Harmless Agreements, and exemptions from out-door eating area requirements . . . .” It also issued planned industrial permits (PIP No. 00-04 and PIP No. 00-04(A)) to Durkin. Each permit contained an indemnification clause in which Durkin agreed to hold the City harmless from all li-abilities arising out of the approval, development and opera-tion of the project and to execute “a Hold Harmless Agree-ment regarding aircraft operations and aircraft noise prior to issuance of grading or building permits” to be “reviewed and approved by the City Attorney . . . .” Durkin also gave the County an avigation easement for Lot 24 in the process of developing the property. Thereafter, the project was finished and the building has been leased to various tenants since 2005.2

Plans for Lot 25 proceeded on a slower schedule, and it was not until October 2006 that Durkin submitted an applica-tion to the City for a planned industrial permit to construct a 30,000 square foot two-story industrial building. As with the project on Lot 24, after Durkin submitted his permit ap-plication the plans were submitted to the Authority for a de-termination as to whether the project was consistent with the applicable airport compatibility plan, which at that time was the 2004 Airport Land Use Compatibility Plan. In February 2007, the Authority provided notice to the City that the Lot 25 project was not consistent with that compatibility plan.

The City also submitted the project proposal to the Cali-fornia Department of Transportation (Caltrans) for com-ment. In its October 2007 response, Caltrans noted that the proposed development was within the “Runway Protection Zone (RPZ) as depicted on the Federal Aviation Administra-tion (FAA) approved Airport Layout Plan” and was therefore

1. Undesignated statutory references are to the Public Utilities Code.

2. Durkin and Michael Lamb formed Durkin-CAC in November 2004, with each retaining 50% ownership of the new entity. The oper-ating agreement required Durkin’s family trust to convey Lot 24 and Lamb to convey stock worth approximately $250,000 and a $400,000 note to the new entity in exchange for ownership.

“ ‘very high risk’ due to its proximity to the end of the run-way.” The letter also noted that the “Caltrans Airport Land Use Planning Handbook (Handbook) generally recommends prohibiting all new structures within the RPZ.”

Thereafter, as it had with respect to Lot 24, the City voted to override the Authority’s determination that the project was inconsistent with the Compatibility Plan and approved Durkin’s permit application (PIP No. 06-19). Also, as with Lot 24, the permit required Durkin to hold the City harm-less with respect to its development of the property. The per-mit for Lot 25 stated that “the project is consistent with the safety requirements of the Runway Protection Zone of the currently adopted Airport Land Use Compatibility Plan for the McClellan-Palomar (ALUCP), dated October 2004 . . . . However, according to the Department of Transportation, Division of Aeronautics and the Federal Aviation Adminis-tration, the project is located within the Runway Protection Zone as depicted on the May 13, 2004 Federal Aviation Ad-ministration approved Airport Layout Plan.”

In October 2009, the City issued a three-year extension of the permit for Lot 25, extending its expiration date to 2012.3 Durkin, however, did not pursue the development of the property before the permit expired. In the interim, the Authority adopted the ALUCP based, in part, on the County’s existing ALP. The ALUCP designates six different Safety Zones for purposes of determining compatible land uses. The most restrictive is Safety Zone 1, which encompasses the RPZ designated in the ALP. In 2012, the City amended its general plan to ensure its consistency with the ALUCP.

On November 5, 2013, Durkin submitted a preliminary review application to the City to restart the process for the development of Lot 25. The City responded with a letter dated December 3, 2013, outlining the history of the project and explaining that despite the earlier approval the proposed development was no longer feasible because the ALUCP was more restrictive than the prior compatibility plan and the ap-plication’s proposed use of “research and development” was not permissible. Thereafter, Durkin took no further step to develop the property and in early 2015 sold Lot 25 to Baker Parking LLC for $1.5 million.4

Prior to the sale of Lot 25, in February 2014, Durkin filed the underlying complaint against the Authority and the County. The complaint contains four causes of action—two separate claims for inverse condemnation for each lot (causes of action one and three), and two separate claims for “unrea-sonable pre-condemnation delay and conduct” for each lot (causes of action two and four). It alleges that the Author-ity’s adoption of the ALUCP designating Lots 24 and 25 as part of the RPZ condemned an avigation easement over the

3. Durkin formed Dryden Oaks, LLC in June 2009 and conveyed Lot 25 to the new entity the same month.

4. A condition of the sale closing was that Baker Parking LLC first obtain a site development permit to use the property as an auto storage facility. The City issued the permit on February 3, 2015, approving development of the lot for that use.


property and that the Authority and the County have not paid just compensation for that taking. The complaint also claims that, after the adoption of the ALUCP, one of the two ten-ants who leased the building on Lot 24 refused to perform its obligation under its rental agreement to expand its use of the property to “include full human occupancy and a higher rent commencing January 1, 2014.”5

Durkin alleges that “as a subterfuge to avoid condemna-tion procedures and the payment of just compensation for the taking of the Properties for Airport purposes, Defendants adopted the amended ALUCP . . . thereby prevent[ing] the City of Carlsbad, which has zoning authority over the Proper-ties, from permitting development in accordance with its own zoning regulations, and . . . with the adopted Specific Plan for the Properties.” The complaint advances the theory that the adoption of the ALUCP declaring Lots 24 and 25 part of the RPZ was effected to allow the County to acquire the properties for an airport expansion, thereby taking Durkin’s rights to develop and use the property. The complaint seeks “compensatory damages according to proof,” as well as at-torneys fees and litigation costs.

The Authority responded to the complaint with an unsuc-cessful demurrer. The County answered and shortly thereaf-ter filed a motion for judgment on the pleadings that was also rejected by the trial court. After conducting discovery, the Authority and the County filed motions for summary judg-ment. Durkin also filed a motion for summary adjudication of some of the affirmative defenses asserted by the Authority and the County. After extensive briefing and a hearing on the motions, the trial court granted both defendants’ motions.6

With respect to the County, the court concluded that Dur-kin failed to establish a triable issue of material fact as to whether the County took any direct action constituting a tak-ing, or that the Authority acted as the agent of the County in its adoption of the ALUCP. With respect to the Authority, the court found Durkin did not establish a triable issue of mate-rial fact that the Authority had completed a regulatory taking because it “lack[ed] the authority to make a land use deci-sion” with respect to Durkin’s property. The court also reject-ed Durkin’s unreasonable precondemnation claims, finding Durkin failed to raise “a triable issue of material fact as to

5. The only evidence in the appellate record related to this precon-demnation allegation for Lot 24 are two emails in September 2014, after the litigation was commenced, between Durkin and City senior planner Van Lynch. In the initial email, Durkin asked Lynch if the City would allow a new lease for the property that would increase the occupancy from the existing lease. Lynch responded that under “[s]ec-tion 2.2.18(b) of the [ALUCP] ‘A new occupancy is proposed within an existing building, provided the new occupancy remains within the same or reduced level of occupancy as the most recent one. A new occupancy which increases intensity shall not qualify as an existing land use.’ So the existing uses within the building are fine, and can be replaced with permitted uses of the same intensity or of less intensity. Any use that increases intensity of the building would not be found compatible with the ALUCP.”

6. The trial court also granted Durkin’s motion in part, finding that the action was filed within the applicable statute of limitations.

whether [the] Authority made a public announcement of an intention to acquire either property.” The court subsequently entered judgment in favor of the County and the Authority.

DISCUSSION

On appeal, Durkin contends the County and the Authority failed to meet their burden on summary judgment to negate any element of its inverse condemnation claim. Alternatively, Durkin asserts that even if the County and the Authority did meet their burden, he showed the existence of a triable issue of fact as to whether the 2010 ALUCP constituted a “dis-guised taking” that obligated the County and the Authority to provide compensation. Finally, Durkin asserts his claims for unreasonable precondemnation conduct are not reliant on his inverse condemnation claims and that a triable issue of fact exists as to whether there was an announcement of intent to condemn his property.

I

STANDARD OF REVIEWCode of Civil Procedure section 437c, subdivision (c) pro-

vides that summary judgment is to be granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. A defendant “moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any tri-able issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant may meet this bur-den either by showing that one or more elements of a cause of action cannot be established or by showing that there is a complete defense. (Ibid.) If the defendant’s prima facie case is met, the burden shifts to the plaintiff to show the existence of a triable issue of material fact with respect to that cause of action or defense. (Id. at p. 849; Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.)

We review a summary judgment ruling de novo. (Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972.) “In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court’s determination of a motion for summary judgment.” (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th 1073, 1079.) “[W]e are not bound by the trial court’s stated reasons for its ruling on the motion; we review only the trial court’s ruling and not its rationale.” (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1402.)

II

INVERSE CONDEMNATIONIn its order granting summary judgment, the trial court

found that Durkin failed to show a triable issue of fact as to whether a regulatory taking occurred. Durkin now contends this finding was error because he showed the adoption of the ALUCP in 2010, reclassifying his property as part of the


RPZ, constituted a taking.7 In response, the Authority con-tends the trial court correctly concluded that the adoption of the ALUCP does not constitute a taking because the plan is not a final determination with respect to the permissible use of property. Rather, under the relevant statutory provisions, the local land use authority (here the City) is the governmen-tal authority responsible for the final land use decision.

A

“The Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth, [citation], provides that private property shall not ‘be taken for pub-lic use, without just compensation.’ As its text makes plain, the Takings Clause ‘does not prohibit the taking of private property, but instead places a condition on the exercise of that power.’ [Citation.] In other words, it ‘is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of other-wise proper interference amounting to a taking.’ “ (Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 536-537 (Lingle).) “The paradigmatic taking requiring just compensation is a di-rect government appropriation or physical invasion of private property.” (Id. at p. 537.)

In Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393, the United States Supreme Court “recognized that govern-ment regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appro-priation or ouster-and that such ‘regulatory takings’ may be compensable under the Fifth Amendment.” (Lingle, supra, 544 U.S. at p. 537) Two categories of regulatory action are generally “deemed per se takings for Fifth Amendment pur-poses. First, where government requires an owner to suffer a permanent physical invasion of her property—however mi-nor—it must provide just compensation. [Citation.] A second categorical rule applies to regulations that completely deprive an owner of ‘all economically beneficial us[e]’ of her prop-erty. Lucas [v. South Carolina Coastal Council (1992)] 505 U.S., at 1019, 120 L.Ed.2d 798, 112 S.Ct. 2886[].” (Lingle, at p. 538.) In this second category, “the government must pay just compensation for such ‘total regulatory takings,’ ex-cept to the extent that ‘background principles of nuisance and property law’ independently restrict the owner’s intended use of the property.” (Ibid.)

In addition to these two narrow categories of per se regula-tory takings, two other types of regulatory taking are gener-ally recognized. As explained in Lingle, another type of tak-ing may be established under the multifactor test discussed in Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104 (Penn Central). Penn Central considered a takings claim based on New York City’s denial of a development per-mit to the owner of Central Station because of the property’s historical landmark designation. The Penn Central decision

7. As set forth in the factual background, the ALUCP did not re-classify Durkin’s property as within the RPZ. Rather, it categorized it as part of Safety Zone 1.

noted the lack of uniformity in how courts had determined what constitutes a “regulatory” taking, then identified the factors that should be used to make that determination. (Id. at pp. 123-124.) The first is “ ‘the economic impact of the regu-lation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.’ “ (Lingle, supra, 544 U.S. at pp. 538-539.) Secondly, “the ‘character of the governmental action’—for instance whether it amounts to a physical invasion or instead merely affects property interests through ‘some public pro-gram adjusting the benefits and burdens of economic life to promote the common good’—may be relevant in discerning whether a taking has occurred. [Citation.]” (Id. at p. 539)

Each of these first three categories of taking, “physical invasion, complete deprivation of beneficial use, or the Penn Central multifactor test,” share a “common focus on identi-fying regulatory actions that are ‘functionally equivalent’ in whole or in part to a direct appropriation of the property or ouster of the owner.” (Powell v. County of Humboldt (2014) 222 Cal.App.4th 1424, 1436-1437, quoting Lingle, supra, 544 U.S. at p. 539.) The fourth category of taking (not at is-sue here) arises from “challenges to adjudicative land-use ex-actions—specifically, government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit.” (Lingle, at p. 546.) Such demands constitute a taking requiring appropri-ate compensation if they are “ ‘so onerous that, outside the exactions context, they would be deemed [a] per se physical taking.’ “ (Powell, at p. 1438, italics omitted.)

Penn Central emphasized language from earlier prece-dent that “ ‘[g]overment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law,’ “ and “ac-cordingly recognized, in a wide variety of contexts, that gov-ernment may execute laws or programs that adversely affect recognized economic values” without running afoul of the takings clause. (Penn Central, supra, 438 U.S. at pp. 124-125.) In such cases, the court properly dismisses a “ ‘taking’ challenge[] on the ground that, while the challenged govern-ment action caused economic harm, it did not interfere with interests that were sufficiently bound up with the reasonable expectations of the claimant to constitute ‘property’ for Fifth Amendment purposes.” (Ibid.; see Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1027 [the expecta-tions of a property owner are “guided by the understandings of our citizens regarding the content of, and the State’s power over, the ‘bundle of rights’ that they acquire when they obtain title to property.”)

Penn Central recognized that zoning laws are “the classic example” of such permissible “regulations that destroy[] or adversely affect[] recognized real property interests” but do not require compensation. (Penn Central, supra, 438 U.S. at p. 125.) The court noted examples where the rejection of a takings claim was proper even where “the challenged gov-ernmental actions prohibited a beneficial use to which indi-


vidual parcels had previously been devoted and thus caused substantial individualized harm.” (Id. at pp. 125-126, citing Miller v. Schoene (1928) 276 U.S. 272, 279 [upholding stat-ute mandating property owners remove ornamental red cedar trees that jeopardized apple trees cultivated nearby without providing compensation for the value of the red cedar trees] and Hadacheck v. Sebastian (1915) 239 U.S. 394 [uphold-ing law prohibiting claimant from continuing operation of brickyard because the legislature reasonably concluded the use was not consistent with neighboring uses].) “ ‘It follows from the nature of a regulatory takings claim that an essential prerequisite to its assertion is a final and authoritative deter-mination of the type and intensity of development legally permitted on the subject property. A court cannot determine whether a regulation has gone “too far” unless it knows how far the regulation goes.’ “ (Calprop Corp. v. City of San Di-ego (2000) 77 Cal.App.4th 582, 590-591 (Calprop Corp.).)

In Calprop Corp. this court examined the threshold inqui-ry of finality in holding that the denial of a requested amend-ment to a community plan and a conditional use permit to develop a private landfill could not form the basis of a takings claim because it did not indicate what, if any, development would be permitted. (Calprop Corp., supra, 77 Cal.App.4th at p. 598.) The denial was not ripe because it did not “by any stretch of the imagination establish” that no economically viable development would be permitted by the City. (Ibid.) In our explanation of the ripeness requirement we explained that “ ‘[u]ntil a property owner has “obtained a final deci-sion regarding the application of the zoning ordinance and subdivision regulations to its property,” “it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests ha[ve] been de-stroyed.’ “ (Id. at p. 591.) The law requires “ ‘an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulations that purport to limit it.’ “ (Id. at p. 592.)

B

Durkin’s argument muddles the type of regulatory taking he claims is at issue in this case. It is clear, however, that Durkin does not assert his property has been subjected to a permanent physical invasion. There also has been no per se facial regulatory taking under Lucas v. S. Carolina Coastal Commission, supra, 505 U.S. 1003. Even Durkin does not allege that the adoption of the ALUCP denied him “all eco-nomically beneficial use” of the property.8

Rather, Durkin contends that his economic expectations for the properties were diminished by the Authority’s adop-tion of the ALUCP. He argues specifically that the adoption of the plan constituted a “disguised” regulatory taking. The Authority responds, as the trial court concluded, that there is

8. Indeed, as of the time the appeal was filed Durkin-CAC Lot 24, LLC continued to receive significant rental income each month and Dryden Oaks LLC sold Lot 25 after filing suit for almost five times what he paid for the property.

no established category for a “disguised” taking, and, there-fore, Durkin’s inverse condemnation claims fail. We agree with the Authority that the cases Durkin relies on to support his inverse condemnation claim do not establish a separate category of “disguised” regulatory taking. Instead, they are examples of the various established categories of regulatory takings discussed above.

For instance, Durkin’s primary authority, Sneed v. River-side County (1963) 218 Cal.App.2d 205, is a physical takings case. There, plaintiff raised inverse condemnation claims based on Riverside County’s adoption of a zoning ordinance that created a new aircraft approach zone above the plain-tiff’s property with severe height limitations—something between 3 inches and 4 feet—that were lower than existing structures. (Id. at p. 207.) In reversing the order sustaining the County’s demurrer, the court emphasized that commonly accepted and traditional height restrictions have “long been recognized as a valid exercise of the police power.” (Id. at p. 209.) The plaintiff, however, alleged that the Riverside or-dinance was not a traditional height restriction, but that the county was allowing the physical invasion of his property by low-flying aircraft. It was “actual use” of the airspace imme-diately above plaintiff’s land. (Ibid.) In purpose and effect, it amounted to the appropriation of an avigation easement, and that might require compensation as a physical taking for public use. (Id. at p. 211.) Here, of course, we are not deal-ing with severe height restrictions, existing structures are not impaired, and Durkin is not claiming anything that could be construed as a physical invasion of his property.

In Peacock v. County of Sacramento (1969) 271 Cal.App.2d 845, the Court of Appeal held that substantial evi-dence supported the trial court’s finding that a taking had occurred. The court concluded that height limitations im-posed on the plaintiff’s property by an ordinance adopted in contemplation of the zoning authority purchasing a private airport for public use, in concert with the denial of devel-opment permits, operated to “ ‘freeze’ development of any meaningful kind” and denied the plaintiffs “any practical or beneficial use of their affected property.” (Id. at p. 862.) Both these cases present examples of zoning changes “ ‘which arguably [were] designed to obtain ends which the regulat-ing governmental body was only entitled to obtain through paying fair compensation.’ “ (Helix Land Co. v. City of San Diego (1978) 82 Cal.App.3d 932, 942 (Helix Land).)9

9. Kissenger v. City of Los Angeles (1958) 161 Cal.App.2d 454, cited by Dryden as another example of a “disguised taking,” struck an emergency zoning ordinance rezoning the plaintiff’s property from R-3 (which allowed multiple dwelling units) to R-1 (which did not) after the city had approved permits for a new multi-unit building and the plaintiff had begun construction. The Court of Appeal upheld the trial court’s conclusion that the emergency ordinance was “arbitrary, discriminatory and that it in effect, [was] an attempt on the part of the city to use its police power to take plaintiffs’ property without due process of law and without payment of compensation for that taking.” (Id. at p. 460.) Kissenger is significantly distinguishable from the facts of this case. Helix Land, supra, 82 Cal.App.3d 932, also cited by Dur-kin, upheld the trial court’s order sustaining the defendants’ demurrer


Because the adoption of the ALUCP is neither a physical invasion nor the denial of any economically beneficial use of his property, we analyze Durkin’s argument as a challenge based on the multi-factor test set forth in Penn Central. In essence, Durkin argues that the value of his property was di-minished by the adoption of the plan and, contrary to the Au-thority’s assertion that the plan is an appropriate exercise of the state’s police power, the ALUCP is “functionally equiva-lent to [a] classic taking.” (Lingle, supra, 544 U.S. at p. 539.)

Durkin’s argument omits an important first step required in any regulatory takings analysis. Specifically, was the adop-tion of the ALUCP a sufficiently final land use determination to support Durkin’s inverse condemnation claims? None of the cases relied on by Durkin had occasion to address this critical issue. Here, importantly, the Authority did not have the ability to make a final land use decision with respect to Durkin’s property. On that basis, we conclude the adoption of the plan was not a sufficiently final land use decision to support Durkin’s claims.

The State Aeronautics Act (§§ 21001 et seq.) requires each county in which an airport is located to establish a seven-member Airport Land Use Commission (ALUC), which oc-cupies an advisory role to “assist local agencies in ensuring compatible land uses in the vicinity of” airports. (§ 21674, subd. (a), see § 21670.) By statute, these advisory bodies consist of two representatives of the cities within the county (appointed by a selection committee of the cities’ mayors); two representatives of the county, appointed by the coun-ty’s board of supervisors; two aviation experts appointed by a selection committee comprised of the managers of all of the public airports in the county; and one representative of the general public, appointed by the other six members. (§ 21670, subd. (b).) The Aeronautics Act provides that the ALUC in San Diego County is the Authority and that it “shall be responsible for the preparation, adoption, and amendment of an airport land use compatibility plan for each airport in San Diego County.” (§ 21670.3, subd. (a).)

By statute, the Authority’s airport compatibility plans may be overruled by local agencies that have responsibility for ultimate zoning determinations. (§ 21676.) Under section 21676, subdivision (b), “[p]rior to the amendment of a gen-eral plan or specific plan, or the adoption or approval of a zoning ordinance or building regulation within the planning boundary established by the [ALUC] pursuant to Section 21675, the local agency” must “first refer the proposed action to the [ALUC].” However, “[i]f the commission determines that the proposed action is inconsistent with the [ALUC]’s plan, the referring agency” is notified and the local agency may then, “after a public hearing, propose to overrule the commission by a two-thirds vote of its governing body if it makes specific findings that the proposed action is consistent

where the plaintiff’s complaint made no factual allegations “demon-strating that the zoning ordinance or the flood plain zone classification [at issue] were a property-taking device rather than a regulation of the use of land.” (Id. at p. 943.)

with the purposes of this article stated in Section 21670.”10 (§ 21676, subd. (b).) The ALUCP itself also confirms that the local agency retains the final decision making authority for land use determinations within the plan’s purview. The document’s introduction states that “[a]lthough the ALUC has the sole authority to adopt this Compatibility Plan and to conduct compatibility reviews, the authority and responsi-bility for implementing the compatibility policies rests with the local agencies that control land uses within the [Airport Influence Area].”11

Significantly, in the course of Durkin’s ownership of Lot 24 and Lot 25 he twice overcame the Authority’s findings that his proposed developments were inconsistent with prior versions of the compatibility plan, and obtained permits from the City overruling the Authority and allowing development of the lots. Because the Authority did not have the ability to make the final land use determination at issue in this case, we agree with the trial court that the Authority met its burden on summary judgment to show Durkin could not establish this element of its takings claim and Durkin failed to show there was a triable issue of material fact.

Our conclusion is further bolstered by decisional law ad-dressing takings claims based on the adoption of general land use plans. In Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110 (Selby), the California Supreme Court stated plainly “that the enactment of a general plan for the fu-ture development of an area, indicating potential public uses of privately owned land, [does not] amount[] to inverse con-demnation of that land.” (Id. at p. 119.) The court explained that “[i]f a governmental entity and its responsible officials were held subject to a claim for inverse condemnation merely because a parcel of land was designated for potential public use on one of these several authorized plans, the process of community planning would either grind to a halt, or dete-riorate to publication of vacuous generalizations regarding the future use of land. [Footnote omitted.] We indulge in no hyperbole to suggest that if every landowner whose property might be affected at some vague and distant future time by

10. Section 21670, titled “Establishment of county airport land use commissions” states, in relevant part: “(a) The Legislature hereby finds and declares that: [¶] (1) It is in the public interest to provide for the orderly development of each public use airport in this state and the area surrounding these airports so as to promote the overall goals and objectives of the California airport noise standards adopted pursuant to Section 21669 and to prevent the creation of new noise and safety problems. [¶] (2) It is the purpose of this article to protect public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public’s exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible uses.” (§ 21670, subd. (a).)

11. The ALUCP defines the Airport Influence Area (AIA) as the ALUC’s area of jurisdiction and “is the area where airport-related noise, safety, airspace protection, and overflight factors may signifi-cantly affect land use compatibility or necessitate restrictions on cer-tain land uses as determined by the ALUC. Land use actions that affect property within the AIA are subject to the compatibility policies and criteria in this Compatibility Plan.”


any of these legislatively permissible plans was entitled to bring an action in declaratory relief to obtain a judicial dec-laration as to the validity and potential effect of the plan upon his land, the courts of this state would be inundated with fu-tile litigation.” (Id. at pp. 120-121; see Helix Land, supra, 82 Cal.App.3d at p. 944 [“Moreover, the adoption of a general plan with areas designated for acquisition cannot give rise to a claim for inverse condemnation.”].)

The Authority is a distinct legal entity from the County and the cities in which airports are located. Its function is to prepare and adopt land use compatibility plans for each airport in San Diego County. These plans, by statute, serve “[t]o assist local agencies in ensuring compatible land uses in the vicinity of all new airports and in the vicinity of existing airports to the extent that the land in the vicinity of those air-ports is not already devoted to incompatible uses.” (§ 21674, subd. (a), italics added.) Like a general plan, the ALUCP is a recommendation subject to variance by the City. Also like a general plan, the ALUCP is an overarching planning docu-ment. (Selby, supra, 10 Cal.3d at p. 119.) The California Su-preme Court has recognized the similarity: “The adoption of an airport land use compatibility plan and the amendment of a general plan are analogous to the extent each ‘embod[ies] fundamental land use decisions that guide the future growth and development of cities and counties.’ “ (Muzzy Ranch Co. v. Solano County Airport Land Use Com (2007) 41 Cal.4th 372, 385 (Muzzy Ranch).)

The arguments advanced by Durkin to overcome the con-clusion that adoption of the ALUCP is not a sufficiently final land use determination to constitute a compensable taking are unpersuasive. First, Durkin asserts that the Authority, not the City, is the decision maker because its jurisdiction pre-empts that of the local planning agencies. This assertion is contradicted by the statutes that created the Authority. As discussed, the Authority does not have the final say on the development of Lot 24 and Lot 25; under the procedures es-tablished by the State Aeronautics Act and the ALUCP itself, the City maintains the ultimate power to determine the fate of a specific property.

Durkin’s reliance on Muzzy Ranch to state otherwise is misplaced. In Muzzy Ranch, the court held that an ALUC’s compatibility plan must pass through the review required by the California Environmental Quality Act (CEQA) (Pub. Re-sources Code, §§ 21000 et seq.). In arguing against imposi-tion of this requirement, the ALUC defendant—the Solana County Airport Land Use Commission (Commission)—as-serted its plan was not a sufficiently final land use determina-tion to qualify as an “activity that may cause direct physical change or a reasonably foreseeable indirect physical change in the environment . . . so as to constitute a project” subject to review under CEQA. (Muzzy Ranch, supra, 41 Cal.4th at p. 382.) The Commission asserted the freeze in development that could be caused by its plan’s purported restriction of residential development to levels currently permitted under existing general plans and zoning regulations was “inherently

too speculative to be considered a reasonably foreseeable effect of an [ALUCP]” and “that because the [plan] merely advises the jurisdiction it affects, it cannot be the legal cause of environmental changes that result if the jurisdictions fol-low its advice.” (Ibid.)

The Muzzy Ranch court rejected these arguments, holding that the fact “[t]hat further governmental decisions need to be made before a land use measure’s actual environmental im-pacts can be determined with precision does not necessarily prevent the measure from qualifying as a project” requiring CEQA review. (Muzzy Ranch, supra, 41 Cal.4th at p. 383.) In so holding, the court noted that the compatibility plan “carries significant, binding regulatory consequences for local government” in that the local government is required to ensure its general and specific plans are consistent with the ALUC’s compatibility plan and any amendment to such plans which affects an area within the compatibility plan must refer proposed action to the ALUC for a consistency determination and any override must still be consistent with the State Aeronautics Act. (Id. at p. 384.)

Muzzy Ranch’s conclusion that an airport compatibility plan is a sufficiently final project for purposes of triggering CEQA review, however, is not inconsistent with our conclu-sion that such a plan is not a final land use determination for purposes of establishing a taking. Muzzy Ranch itself ex-plains “the definition of project for CEQA purposes is not limited to agency activities that demonstrably will impact the environment. ‘ . . . CEQA does not speak of projects which will have a significant effect, but those which may have such effect.’ “ (Muzzy Ranch, supra, 41 Cal.4th at p. 383.) In con-trast, finality is required to adjudicate a takings claim. (See Calprop Corp., supra, 77 Cal.App.4th at p. 591 [“ ‘[u]ntil a property owner has ‘obtained a final decision regarding the application of the zoning ordinance and subdivision regula-tions to its property,” “it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests ha[ve] been destroyed” ‘ “]; Jones v. People ex rel. Dept. of Transportation (1978) 22 Cal.3d 144, 151 (Jones) [“The adoption of a general plan is considerably short of a firm declaration of an intention to condemn; the plaintiff in an inverse condemnation action must show the invasion of a property right which directly and specially af-fects him to his injury”].) Muzzy Ranch’s holding that CEQA review applies to airport compatibility plans does not lead to the conclusion that such a plan is sufficiently final to show a taking has occurred.12

Durkin next contends the Authority itself construes its de-cisions as binding on the City. In support, Durkin points to three documents: (1) An unsigned resolution of the Author-

12. Muzzy Ranch also noted the rule “[t]hat the enactment or amendment of a general plan is subject to environmental review under CEQA . . . .” (Muzzy Ranch, supra, 41 Cal.4th at p. 385.) As stated, a general plan cannot support a takings claim, reinforcing our conclu-sion that the finality required to trigger CEQA review is not the same finality required for a takings claim.


ity finding the City’s general plan amendment is consistent with the ALUCP; (2) the introductory section of the ALUCP, discussed above, which states that the document “provides compatibility policies and criteria applicable to local agen-cies in their preparation or amendment of general plans and to landowners in their design of new development;” and (3) a comment letter from the Authority to the City concerning Lot 23, which suggests that the City should prepare an en-vironmental impact report pursuant to CEQA before adopt-ing a statement of overriding concerns. Contrary to Durkin’s assertion, none of these documents show that the Authority views the ALUCP as binding on the City and the ALUCP explicitly states otherwise. In sum, we conclude the adoption of the ALUCP by the Authority was not a sufficiently final land use determination to support a takings claim. Thus, the trial court properly found Durkin had not shown a triable is-sue of material fact on his claims for inverse condemnation.13

C

In addition to asserting that the Authority took his prop-erty interest by adopting the 2010 ALUCP, Durkin also con-tends the County should be held liable for the Authority’s purported taking because the Authority acted as the County’s agent. Given our conclusion that the adoption of the ALUCP did not constitute a regulatory taking, Durkin’s claim that the County is vicariously liable for the Authority’s action as its principal is moot. (Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1205.)

D

Durkin attempts to make an additional vicarious liability claim based on an indirect beneficiary theory. He argues the County should be held liable for inverse condemnation as the beneficiary of the Authority’s adoption of the ALUCP. In support Durkin cites two cases: People ex rel. Dept. of Transportation v. Diversified Properties Company (1993) 14 Cal.App.4th 429 (Diversified) and Jones, supra, 22 Cal.3d 144. But this theory of indirect liability suffers from the same defect as his regulatory takings claims. It was the City’s de-cisions to deny his permit application for Lot 25 and pre-clude increased occupancy of the Lot 24 building—not the adoption of the ALUCP by the Authority or any action by the County—that arguably resulted in a regulatory taking. Durkin, however, asserts only that the Authority’s adoption of the ALUCP decreased the value of his property. Because this action was not a sufficiently final land use determination to support a takings claim, the County cannot be held liable as a beneficiary.

Diversified and Jones do not support a different conclu-sion. Both involve claims of precondemnation damages

13. A corollary issue to the finality required to establish a taking is the determination of the governmental actor responsible for compen-sating the deprived landowner—here the City. As noted in the intro-duction, because Durkin did not bring his claims against the City, we have no occasion to address the issue of whether such a claim is viable.

against Caltrans caused by its delay in pursuing condemna-tion of property it announced was needed for proposed free-way expansions. The theory of recovery is based on the Su-preme Court’s decision in Klopping v. City of Whittier (1972) 8 Cal.3d 39 (Klopping). (Diversified, supra, 14 Cal.App.4th at p. 440; Jones, supra, 22 Cal.3d at p. 150.) In both cases, Caltrans was held responsible for precondemnation damages suffered by the property owners as a result of a local zoning authority’s denial of permits based on Caltrans’s prior an-nouncements of intent to condemn the property in question. (Diversified, at p. 442; Jones, at p. 152.)

As we later explain (post, pp. 28-33), Durkin has no claim for precondemnation damages on a Klopping theory because there is no evidence that anyone announced the County’s in-tent to condemn his property. More importantly for our pur-poses, Klopping as applied in Diversified and Jones simply does not support a claim for inverse condemnation every time one governmental agency allegedly receives some economic benefit from another agency’s otherwise legitimate land use decision.

In the end, Durkin’s “indirect benefit” theory suffers from the same fundamental flaw as his other theories of inverse condemnation. It is based on the Authority’s adoption of the ALUCP, which was not a sufficiently final land use determi-nation to support a takings claim.

III

PRECONDEMNATION CONDUCTDurkin’s final contention is that his second and fourth

causes of action should not have been dismissed because tri-able issues of fact remain concerning whether the Respon-dents engaged in unreasonable precondemnation conduct. The Authority responds that the trial court properly conclud-ed the claims are not viable because Durkin failed to provide any evidence of a public announcement of intent to acquire the properties.

A

“In Klopping, the Supreme Court held that the [Fifth Amendment’s] ‘just compensation’ requirement is also trig-gered where, prior to a taking, ‘the condemner acts unrea-sonably in issuing precondemnation statements, either by excessively delaying eminent domain action or by other op-pressive conduct.’ [Citation.] In such circumstances, Klop-ping held, the Constitution also requires that ‘the owner be compensated,’ and announced the following rule: in an emi-nent domain action, ‘a condemnee must be provided with an opportunity to demonstrate that (1) the public authority acted improperly either by unreasonably delaying eminent domain action following an announcement of intent to condemn or by other unreasonable conduct prior to condemnation; and (2) as a result of such action the property in question suffered a diminution in market value.’ “ (Redevelopment Agency of San Diego v. Mesdaq (2007) 154 Cal.App.4th 1111, 1134, quoting Klopping, supra, 8 Cal.3d at pp. 51-52)


The Supreme Court’s Selby decision, discussed above, clarified the limits of a takings claim based on Klopping’s rationale. “In Selby, after the city and county had adopted a general plan indicating the general location of proposed streets, an owner of property depicted as the location through which some of the proposed streets would run brought an action seeking a declaration that there had been a taking under Klopping. (Selby, supra, at pp. 118-119.) The court disagreed, holding that ‘[t]he adoption of a general plan is several leagues short of a firm declaration of an intention to condemn property’ because such plans are ‘subject to altera-tion, modification or ultimate abandonment, so that there is no assurance that any public use will eventually be made of [the specified] property.’ (Id. at pp. 119, 120.) The court ex-plained that the holding in Klopping applied only where the public entity had ‘acted unreasonably in issuing precondem-nation statements, either by excessively delaying eminent domain proceedings or by other oppressive conduct.’ (Selby, 10 Cal.3d at p. 119.)” (City of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, 224 (City of Los Angeles).) Sim-ply put, the Supreme Court held that the adoption of the gen-eral plan at issue in Selby was not an announcement of intent to condemn the plaintiff’s property. (Ibid.)

“Following Klopping and Selby, numerous courts have held that a property owner may recover damages under an inverse condemnation theory where the public entity indi-cates a firm intention to acquire his or her property and either unreasonably delays prosecuting condemnation proceedings or commences and abandons such proceedings. [Footnote omitted.] (See, e.g., Tilem v. City of Los Angeles (1983) 142 Cal.App.3d 694, 698-699, 708 [city ‘ “took” . . . [plaintiff’s] ability to use his land for a substantial period of time’ where it announced a plan to widen road through his property and commenced and abandoned condemnation proceedings]; Ta-per v. City of Long Beach, supra, 129 Cal.App.3d at pp. 602, 615 [plaintiffs entitled to precondemnation damages where their beach property was rendered ‘unsaleable and unusable’ due to ‘widely and publicly disseminated pre-condemnation announcements’ and other activities indicating the city in-tended and desired to acquire the property, such as having the property appraised, applying for a grant to use toward acquisition, and informing plaintiffs’ counsel that it would not permit plaintiffs to develop the property]; People ex rel. Dept. Pub. Wks. v. Peninsula Enterprises, Inc. [(1979)] 91 Cal.App.3d [332], 341-343, 356 [precondemnation damages awardable where two years prior to initiating condemnation action, entity approached owners regarding possible acquisi-tion of their property, informed owners that acquisition would take place within a year, provided owners a map depicting the property affected, and made an offer of purchase].)” (City of Los Angeles, supra, 194 Cal.App.4th at pp. 224-225; italics added.)

B

The trial court found Durkin’s claims under Klopping failed because he did not show “a triable issue of material fact as to whether [the] Authority made a public announcement of an intention to acquire either property.” We agree. In his briefing, Durkin asserts “[t]he ALUCP announces an intent to condemn in the form of direct statements of the intent.” This announcement, Durkin argues, precluded his development of Lot 25 and caused the loss of a prospective tenant and limits his ability to garner higher rents on Lot 24.

In support of this claim that the ALUCP was a public an-nouncement of an intent to condemn the property, Durkin cites five documents: (1) the map contained in the ALUCP which shows the Safety Zones around the airport; (2) section 3.4.12 of the ALUCP, which states there is a presumption “that the airport owner owns or intends to acquire property interests—fee title or easements—sufficient to effectuate” its policy of precluding in Safety Zone 1 “most uses, includ-ing any new structures and uses having an assemblage of people”; (3) section 2.11.5 of ALUCP, which states that the local zoning authority should require an avigation easement as a condition for approval of projects located in Safety Zone 1; (4) a 2008 letter from the Authority’s airport planner Ma-randa Thompson to Caltrans seeking acceptance of the en-closed ALP for use by the Authority in connection with its “compatibility planning and preparation of the ALUCP”; and (5) definition pages from the ALUCP.

Contrary to Durkin’s assertions, these documents do not evidence the announcement of a plan to condemn Durkin’s property. With the exception of section 3.4.12 of the ALUCP, which mentions acquisition of property in Safety Zone 1 by the Airport’s owner, none of these documents contain any statement, either explicitly or implicitly, concerning acquisi-tion of Durkin’s property. Section 3.4.12 of the ALUCP con-tains a policy statement of the Authority’s preference that the Airport’s owner acquire property within Safety Zone 1, but it does not direct such action. The provision is also clear that acquisition is not contemplated in all circumstances since it identifies acceptable uses of property “[i]n instances where the affected property is privately owned and the airport owner does not intend to acquire property interests.” (Italics added.) This provision of the ALUCP is a far cry from the clear announcements of future condemnation found in the cases on which Durkin relies. (See Klopping, supra, 8 Cal.3d at p. 42 [City adopted resolution that included list of proper-ties to be condemned to form a new parking district]; Jones, supra, 22 Cal.3d at p. 147 [“Department of Transportation [] announced plans to construct a freeway . . . requiring acquisi-tion of two and one-half acres of plaintiffs’ land.”]; and Tilem v. City of Los Angeles, supra, 142 Cal.App.3d at p. 698 [filing of an eminent domain action]).14

14. Durkin also cites San Diego Metropolitan Transit Develop-ment Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517 in support of this proposition. The case, which held the plaintiff could not pursue its precondemnation damage claim because it had no compensable


Durkin’s additional argument—that his claims are viable regardless of whether a formal announcement was made be-cause the planning for the airport has transitioned to an ac-quisition stage—is also not supported by in the record. Dur-kin states that the County “repeatedly entered into new grant agreements with the FAA wherein it certified that it would acquire interests in all property within the RPZ sufficient to prevent incompatible uses.” Durkin states that the County “repeatedly entered into new grant agreements with the FAA wherein it certified that it would acquire interests in all prop-erty within the RPZ sufficient to prevent incompatible uses.”

Durkin’s only citation, however, is to the County’s grant application to the Federal Aviation Administration for funds for the County’s Master Plan to “continue the facility plan-ning process described in previous McClellan-Palomar Air-port Master Plan Studies (1995-2015), into the next planning period of 2015-2035,” which will “define the type and extent of development needed to accommodate the current and fu-ture aviation needs as a Federal Aviation Regulation (FAR) Part 139 Certificated National Plan of Integrated Airport Systems (NPIAS) airport.” The document contains no refer-ence to acquiring any specific property in connection with planning for the airport.15 Durkin failed to meet his burden on summary judgment to overcome the Respondents’ show-ing that there was no unreasonable conduct on their part that could support a claim under Klopping.

DISPOSITION

The judgment is affirmed. Respondents are awarded costs of appeal.

DATO, J.WE CONCUR: NARES, Acting P. J., AARON, J.

property interest at stake, provides no support for Durkin’s claim. (Id. at p. 532.)

15. Similarly, Durkin asserts that “respondents[‘] violation of acquisition guidelines is prima facie evidence of unreasonable pre-condemnation conduct” and that “[f]ederal guidelines require prompt acquisition of properties needed for the RPZ, without forcing property owners to bring an action for inverse condemnation.” Durkin, howev-er, provides no evidentiary citations to support this claimed wrongful conduct by the County. (See Citizens For A Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 113 [“[F]ailure to present all relevant evidence on the point ‘is fatal.’ [Citation.] ‘A reviewing court will not independently review the record to make up for appel-lant’s failure to carry his burden.’ “].)


THE PEOPLE, Plaintiff and Respondent, v.DOMINGO RODRIGUEZ III, Defendant

and Appellant.

No. F070900In The Court of Appeal of the State of CaliforniaFifth Appellate District(Kern Super. Ct. No. BF146893A)

APPEAL from a judgment of the Superior Court of Kern County. Cory J. Woodward, Judge.


CERTIFIED FOR PARTIAL PUBLICATION*

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II of the Discussion.

COUNSELJonathan D. Roberts, under appointment by the Court of

Appeal, for Defendant and Appellant.Kamala D. Harris, Attorney General, Gerald A. Engler,

Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

INTRODUCTIONAppellant/defendant Domingo Rodriguez III was released

from custody with an ankle monitor pursuant to the Kern County Sheriff’s Department’s Electronic Monitoring Pro-gram (EMP), subject to several terms and conditions, includ-ing that he could not leave Kern County without permission. The ankle monitor transmitted signals to the EMP’s com-puter tracking system via a Global Positioning Device (GPS).

The GPS signals showed that defendant repeatedly left Kern County and went to other counties and states without asking for or receiving permission from his supervising dep-uty or any deputy in the department’s EMP office. When a deputy reached defendant by telephone, defendant said he was a long-haul truck driver, he drove to other areas as part of his job, and he falsely claimed he had received permission to leave Kern County from an unnamed deputy.

The EMP office issued an arrest warrant for defendant for violating the terms of his release by leaving Kern County without permission. After a jury trial, he was convicted of violating Penal Code section 4532, subdivision (b)(1) – that


he willfully and unlawfully, while being a prisoner convicted of a felony, escaped from the EMP on or about December 28, 2012. He was sentenced to eight months for this conviction as part of an aggregate term of nine years eight months based on unrelated convictions in other cases.

In the published portion of this opinion, we find the court properly admitted a report about the GPS signals sent by the ankle monitor that showed defendant left Kern County at cer-tain dates and times.1 We affirm.

FACTS

On December 12, 2012, defendant was in custody in coun-ty jail. Defendant was a prisoner who had been previously convicted of a felony.

Late that evening, defendant was released on the EMP un-der the supervision of the Kern County Sheriff’s Department. Deputy Bryceton Patterson was assigned to the department’s EMP office. Patterson advised inmates of the terms of the program upon their release. Patterson was also responsible for monitoring inmates on EMP, and ensuring they were complying with their curfew periods and the terms of their release.

Deputy Patterson testified he met with defendant and an-other inmate at the EMP office, adjacent to the Lerdo jail facility, to advise them of the terms of their EMP release. Patterson reviewed defendant’s EMP application form and every page of the EMP’s “rule book.” Defendant initialed each line to indicate that he had been advised of the terms.

In his application for EMP release, defendant wrote that he lived in Bakersfield, that he was self-employed and was the “owner” of Rodriguez Transportation/Colotl Trucking on Union Avenue in Bakersfield. He wrote that he worked five days a week, the distance from home to work was three miles, and the driving time was five minutes. Defendant wrote he drove a Pontiac, a motorcycle, and a 2010 Peterbilt commercial vehicle.

The “rulebook” stated that “[w]hen not at work, ap-proved court appearances, or probation visits I understand that I will be required to stay at home and AGREE TO RE-MAIN INSIDE MY RESIDENCE. I must request permis-sion in advance of leaving the premises and must bring back documentation verifying my absence ….” (Capitalization in original.) “I understand that if I fail to return home within the prescribed time or leave home at an invalid time, I may be considered an escapee and subject to immediate arrest. I may be charged with escape” under the Penal Code. Defen-dant signed the statement of rules, attesting that he read and understood the conditions, and that any violation could result in criminal charges and/or removal from the program.

Deputy Patterson testified that when inmates are initially released from custody pursuant to EMP, they are placed on “a

1. In the nonpublished portion of this opinion, we will address de-fendant’s argument that the court erroneously admitted evidence that he left Kern County on dates other than those alleged as the charged offense.

seven-day blackout period. They are to remain at their house inside for the first seven days unless they have permission to leave from us. After that, the deputy who is in charge of that inmate, it’s their determination on how much time an indi-vidual may need outside the house whether they are working a job, maybe just have errands to run, those kind of things. So they will set their own curfews.” After the initial blackout period, the inmates’ supervising deputy “would discuss with them their needs as far as time away from their house and they will establish a curfew they believe fits what the inmate needs.” Once inmates finish the seven-day blackout period and receive their curfew periods, “they will be able to leave within those home retention hours.”

Deputy Patterson testified about the most common terms stated in the rulebook:

“[T]hat inmates are to remain at their residence during the [initial] home confinement time, not be allowed to leave the county or the state without permission from the office. Inmates are not to consume alcohol or drugs nor associate with any persons on probation or parole, outstanding warrants for their arrest, must be courteous and kind to office staff as well as deputies. Those are the majority of them.” (Italics added.)

Patterson testified that he advised defendant about the “terms of confinement.”

“[T]hat they cannot leave their house before their [ini-tial] home confinement time starts and after it stops, that time being any permission we’ve given them to leave. That permission must be obtained verbally or in per-son. Messages don’t count. In this case the application is stating similar that if they are not home within those times, that we are going to charge them with escape from custody.” (Italics added.)

Deputy Patterson testified that after reviewing the terms, he gave the rulebook to defendant. Patterson also gave de-fendant his desk and cell phone numbers, and the contact numbers for defendant’s supervising deputy.

Deputy Patterson testified he placed an ankle monitor on defendant that had a specific identification number (No. NF0002048). The identification number was used to track the inmate on the EMP office’s GPS system.

Deputy Patterson testified the entire release process usu-ally took about 15 to 30 minutes. During that initial advise-ment meeting, Patterson did not discuss the inmate’s work schedule since the inmate was being released pursuant to the seven-day blackout period. After that initial period, the su-pervising deputy would then meet with the inmate, discuss the inmate’s work schedule, and set the curfew period.

Deputy Patterson testified the deputies who worked in the EMP office had access to the computer program that con-tained electronic files for every inmate released on EMP. An


inmate’s electronic file contained information from the in-mate’s application, notes about contacts and messages, cur-few hours, and “[a]ll their GPS locations and histories.” If an inmate wanted to leave his house during the initial seven-day blackout period or stay out beyond their curfew, he had to call the supervising deputy or the deputy at the EMP office for permission, and that call would be noted in their electronic file.

Deputy Patterson had been assigned to the EMP program for two years. He had never personally given permission to any inmate to leave the state. To the best of his knowledge, he did not believe such permission had been given to any inmate.

EVIDENTIARY HEARING ABOUT ADMISSIBILITY OF OF GPS

EVIDENCE AND REPORT

The primary evidentiary issue in this case was whether the prosecution could introduce evidence about the GPS data transmitted by defendant’s electronic ankle monitor, includ-ing a printed report that stated defendant’s whereabouts and his travels outside of Kern County while he was released pur-suant to the EMP.

The People moved to introduce the testimony of Sergeant Kessler and Deputy Veon from the EMP office about how the GPS data showed defendant’s location at particular dates and times. The People argued the report about the GPS data was not hearsay, it was computer-generated evidence, and it was presumed authentic and admissible under Evidence Code2 section 1552.3

Defendant moved to exclude all evidence of the GPS data obtained from the computer tracking system for the ankle monitor. Defendant argued the evidence was inadmissible unless the People established the foundation for the authen-ticity of the data. Defendant further argued the entirety of the GPS evidence was inadmissible hearsay.4

2. All further statutory citations are to the Evidence Code unless otherwise indicated.

3. As we will explain in issue I, post, section 1552, subdivision (a) states: “A printed representation of computer information or a comput-er program is presumed to be an accurate representation of the com-puter information or computer program that it purports to represent. This presumption is a presumption affecting the burden of producing evidence. If a party to an action introduces evidence that a printed rep-resentation of computer information or computer program is inaccu-rate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the ex-istence and content of the computer information or computer program that it purports to represent.”

4. As we will explain in issue II, post, defendant also moved to exclude any evidence that he was not at his residence on dates other than December 28, 2012, as charged in the information, and argued evidence of other incidents constituted irrelevant and inadmissible propensity evidence. The court overruled this motion.

Evidentiary hearing

The court conducted an evidentiary hearing prior to ad-mitting any evidence about the GPS data. Sergeant David Kessler of the Kern County Sheriff’s Department, who was the supervisor of the EMP office, was the only witness called by the People. He had testified in court four or five previous times about ankle monitors and GPS data.

Sergeant Kessler testified the sheriff’s department rented the ankle monitors and tracking software from the Alco-hol Monitoring System (AMS) company, formerly known as Gryphex. He was trained at a four-hour session with an engineer from Rocky Mountain Offender Systems, who discussed how the ankle monitors and accompanying soft-ware worked. Kessler received additional training during his regular interactions with AMS personnel, either by telephone or email, and received updates about the system. Kessler’s knowledge about the system was based on the training class, his communications with AMS personnel, and his experience working with GPS data in his EMP assignment.5

Sergeant Kessler testified that the GPS was “actually just a receiver and then the transmitting to the software is done through a cellular card or air card, and that is built into the unit. It is exactly like a cell phone but in a different case with-out all the fancy features.” However, the inmate’s location is not determined by his proximity to a cell phone tower:

“GPS is done by satellites. There [are] over 30 satellites orbiting the Earth that are run by the government. It de-livers a time and place, space to the device, and that, depending on how many satellites are tracking it, will calculate how far and what position it is on Earth.”

The ankle monitor “takes a GPS point” every three min-utes, and transmits the inmate’s location through a GPS sig-nal every 15 minutes. “Every three minutes … the device stores the information of where the offender is located, and then every 15 minutes of the day it is uploaded into the serv-ers unless you request a location from it, then it calls up the device at that time.” Since the device calculates a new GPS point every three minutes, there are five GPS locations ob-tained within 15 minutes. If the device does not have a cell connection, it will store that information up to 50,000 loca-tion points, and then transmit that information when the con-nection is restored. If the deputy requests the inmate’s loca-tion, the GPS system can “call[] up the device at that time.”

Sergeant Kessler testified that errors usually occur when the inmate is inside a building where the GPS signal is not as accurate. Such errors are usually limited to a few hundred feet. In order to avoid the inaccuracies inside an inmate’s house, the deputies “put up a zone or a geo-fence around that house” of approximately 300 feet, to avoid a false alarm that the inmate violated curfew.

5. In issue I, post, we will address defendant’s contentions about whether Sergeant Kessler’s testimony was insufficient to authenticate the report about the GPS data.


“When you see someone moving on a GPS, you will see them plot along a certain route. Usually these errors or what we call them drift, you will see a point that is out of the ordinary, so it won’t be along the road. Sometimes they pop up into weird places. But usually it is within, I would say, an eighth of a mile around the actual location of where it is. And it is caused because it is inside of a residence. When it is out in the open, GPS is actually very accurate.” (Italics added.)

Sergeant Kessler testified he had never experienced a situ-ation where the GPS data indicated an inmate was in Califor-nia, when the inmate was actually in Texas.

Sergeant Kessler testified the sheriff’s department used computer software called Insight to access the GPS informa-tion transmitted from each inmate’s ankle monitor. “The de-vice calls the server, downloads the information to the server; the information is then … stored within the software. When you call up the location history, it takes the GPS points and plots them into addresses through using Google Maps and displays that information onto the screen.” The deputies were able to “pull up reports” on each inmate from the software.

Sergeant Kessler testified about the GPS report prepared from defendant’s ankle monitor, which the People sought to introduce at trial. Kessler testified it was similar to other reports produced about inmates released on ankle monitors. Kessler testified the deputies could obtain reports about the inmate’s activities directly from the software on the computer system. However, sometimes the reports are archived to save space in the server, and the officers then request the reports from AMS. “Unfortunately, just due to the size and not over-loading the system, sometimes they are archived reports to save the space for the active participants.”

Sergeant Kessler testified that defendant’s GPS report had been “produced by the company [referring to AMS]. If it is a report that we are producing, it pulls the offender I.D. by the GPS number or name. You could pull it by several dif-ferent factors, and then it provides us with GPS locations, addresses, and times and dates.”

Sergeant Kessler explained that a deputy is able to track a particular inmate using his name and the ankle monitor’s serial number, which is unique to each inmate. The software “comes up with just the location, the date and time, and it also plots it onto a Google Map for us.” The deputies can track the inmate’s movements by watching the computer screen, which shows the inmate’s monitor number.

“[T]he information doesn’t … go up to the satellite. Nothing goes to the satellite. The satellite gives dates and times, and its position within space and broadcasts the signals constantly down to Earth. So pretty much a giant clock in the sky. [¶] Depending on how many sat-ellites are hitting the device receiver, it will calculate the distance between each satellite to find out which longi-tude and latitude it is on Earth, and that’s the point on

Earth where it is located. [¶] What happens then is every 15 minutes it puts all those GPS points and transmit it up into the servers. By placing those GPS coordinates into a mapping software, Google, Safari, whichever map-ping software you want, those will give you an approxi-mate address of where the device is located; similar to the GPS devices in your car and everything else, it could track along those points.”

Sergeant Kessler testified that all the GPS points “are stored in the [Insight] software” and “put into a user-friendly format to where the officers can read it.” “[The ankle moni-tor] device calls the server, downloads the information to the server; the information is then … stored within the software. When you call up the location history, it takes the GPS points and plots them into addresses through using Google Maps and displays that information onto the screen.”

Sergeant Kessler believed the main servers for AMS are located at the company’s headquarters in Atlanta, Georgia. Once the information is in the servers, a deputy can access the information on the Internet using the assigned password for the secured site “just like any normal web-based software or account that is out there.” The information can be printed out in different ways, “[d]epending on what kind of informa-tion you are looking for,” including in map form.

“Q. So basically what happens is a deputy puts in a pass-word into a web site to get somebody’s information to get their location; is that correct?

“A. Well, it is a web-based program that’s used through secured encryption software that transmits back and forth that a deputy puts their information in, the user I.D. along with the password [in] order to access the data we allow them to access.

“Q. So what the deputy is looking at after they typed in their password and identification, things like that, what they are looking at is simply information that’s given to them by this server, correct?

“A. Well, it is not given. We put in information into the system. We change information that it put into the sys-tem. We adjust schedules. We do a lot of interacting with the system. It is just not the system feeding us the information. We actually have to put in the information in order for it to connect up and work.

“Q. Can you change somebody’s location?

“A. No.

“Q. Do you know how the information from the servers gets transmitted to the software, the web-based soft-ware, like deputies yourself, sergeants like yourself,


look at with regard to the ankle monitors used by the Kern County Sheriff’s Department?

“A. It is all one system. The servers run the software and hold the data. It is kind of like your computer at home. It has all the stuff on it. It is just [a] bigger unit, I would say.

“Q. So what the deputies do is basically log on to the software, and they can get – they can obtain information from the server or put information into the program; is that right?

“A. Correct. Similar to remote access to your computer. If you were off site—if you want somebody to access your work computer or home computer, you could do that through that the internet. Those computers are just somewhere else and deputies are accessing them.” (Ital-ics added.)

Sergeant Kessler explained that the software consisted of both the inmate’s electronic file and the GPS data. “It is like having your Windows computer and having a calendar in it. It is just part of the software. It is all built in.” The depu-ties could correct the inmate’s personal information in his electronic computer file, such as his schedule and any notes about the case.

“Q. So what a deputy could change would be, for ex-ample, somebody’s—an offender’s name, right?

“A. Yes. They could change the name. There is a history that goes along with it, too. They could change their schedules. They could add notes to it. They can’t delete any notes or anything like that. They could add excep-tions to the schedule. So if someone says they are not going to be home at a certain time, they could add an exception to the schedule. That allows them a little more time so we don’t get a violation in the system.”

However, Sergeant Kessler further explained that the deputies could not tamper with the hardware, the software program, or alter the GPS data.

“Q. Are deputies within the Kern County Sheriff’s De-partment able to fix bugs or problems with the servers are located in Atlanta, Georgia?

“A. If you are talking about the hardware portion of it, no. That’s over any deputy’s head. That’s usually used for experts to fix. If you are asking if there are ways that deputies can fix data that might be wrong in the system, yes. If it is data related [to] the GPS points, no. The GPS points are, again, sent from the satellites to the device, the device calculates it where it is on Earth and

then puts it into the server. We cannot change the points and those are longitude/latitude points that are made.” (Italics added.)

Sergeant Kessler testified that on hundreds of occasions, he had relied on the GPS data to go to a location to find an inmate, and found both the inmate and the ankle monitor.

Sergeant Kessler was familiar with the GPS report pre-pared about defendant, and testified he did not see any inac-curate location information.

“[Y]ou see consistent locations of travel on those points. [I]t would be inaccurate if he was saying he was in Cali-fornia and you get one point in Texas and then all of sudden he is back in California three minutes later. We would know that point is inaccurate. You don’t have that. You have a consistent trail. And if you type in most of these addresses, you will see that trail along major roadways or highways and stuff like that ….”

The defense cross-examined Sergeant Kessler, but did not call any witnesses or introduce any evidence to dispute his hearing testimony.

The parties’ argumentsThe prosecutor argued Sergeant Kessler’s testimony es-

tablished that ankle monitors electronically transmitted the inmate’s location to the GPS system, and no one could ma-nipulate or change that information. The prosecutor argued the data was entirely electronic, they could tell when some-thing was wrong based on the travel routes, and it was not hearsay. The prosecutor further argued that she was not re-quired to call a witness from the software company to testify about the accuracy of the server, and defendant’s objections on those points went to the weight and not the admissibility of the evidence.

Defense counsel replied that prior cases had found that only electronic photographic data was not hearsay. Counsel discounted Sergeant Kessler’s testimony because he was not the custodian of records from the AMS company. Counsel argued that the prosecutor could not introduce the electronic evidence without foundational testimony from the custodian of records for the AMS company about how the information was compiled, and the evidence did not satisfy any hearsay exceptions.

The court’s rulingThe court overruled defendant’s objections, and held the

GPS evidence and the printed report were admissible:

“[T]he information that is being received by the sheriff’s department is not hearsay. It is certainly not testimony in any fashion in this Court’s view. Consequently, we are not dealing with necessarily establishing the exceptions


to the hearsay rule, but the Court is relying upon … sec-tion 1552 to allow that information to come forward.”

TRIAL EVIDENCE ABOUT THE GPS DATA

At trial, Sergeant Kessler repeated much of his hearing testimony about the operation of the ankle monitors and the GPS system used by the EMP office, and that it was rented from AMS and used software from Insight.

Sergeant Kessler testified before the jury about how the system worked, and that each ankle monitor contains a cel-lular card, similar to those in a cell phone. “Every so often it calls up the network and downloads the [location] informa-tion that it stores … into the servers and from that it’s put into a software where we could interface with it and see the data that’s needed.” The ankle monitor sends signals for GPS readings every three minutes. The GPS readings are loaded into the network and recorded into the system every 15 min-utes. The system can store up to 50,000 location points for each ankle monitor. The software program contains the list of inmates and their assigned monitors, and different color dots “will tell us if that device is working properly or not, loca-tion, the equipment and also … if they are within their area.”

Sergeant Kessler testified that mapping software was used to create an electronic zone for each inmate. The inmate’s ankle monitor and GPS data recognize that zone. The sher-iff’s department receives an alert if the inmate goes beyond that zone.

Sergeant Kessler testified the deputies are able to down-load data from the computer program about the inmate’s lo-cations and movements. The AMS company holds the older data that has been archived, and it is provided upon request.

Sergeant Kessler testified that if the inmate and the ankle monitor are moving outside a building, the GPS data is “very accurate.” When the inmate is moving outside or traveling on a street, “you will see where the points all line up and actually connect that path along the road and stuff there’s an interface with Google Maps that allows it to plot it along the highways, roadways so you could actually see where they are.” A deputy on patrol can access to the computer program to track the inmate’s location.

“[F]rom the GPS unit, it’s cell service to the servers, from the servers it’s translated latitude and longitude to the addresses through Google Map software and you are able to print out the information in different forms. If it’s archived, the company will send us the data that we re-quest either electronically or in the mail.”

If the inmate walks into a house or building, the GPS data would show the point of entry, but the information is not as accurate inside the structure itself.

Sergeant Kessler testified that a GPS signal is not trans-mitted if the ankle monitor’s battery expires. The ankle moni-tor will vibrate if the battery starts to fail and needs to be

charged. The inmates are instructed to charge the ankle moni-tor every 12 hours. Once the battery expires, the EMP office cannot track the inmate and the electronic file is no longer updated.

Sergeant Kessler testified that if an inmate leaves the state, the GPS computer program will receive a notification with a red dot, and the supervising deputy will receive a text mes-sage. Kessler had never seen an ankle monitor erroneously report that an inmate was in Texas when he was actually in California.

Sergeant Kessler testified that a “Generation 3” ankle monitor was placed on defendant when he was released on EMP. There were no problems with those devices aside from having to charge the battery. The device would indicate if the charger was working. The inmates are instructed to notify their supervising deputy if they have problems with the ankle monitor or the charger.

TRIAL EVIDENCE ABOUT DEFENDANT’S LOCATION

Defendant’s supervising deputyDeputy Jared Wilson was assigned to supervise defendant

on electronic monitoring. Wilson testified that every deputy in the EMP office had access to the inmates’ electronic case files, and could enter case notes on their records. The case notes were stored within the computer system, and the depu-ties could print out the notes.

Deputy Wilson testified that after an inmate completed the seven-day blackout period, he was assigned a curfew period that was usually between 8:00 p.m. to 8:00 a.m. unless there were work considerations. An inmate on EMP could break curfew only after receiving permission from a deputy at the EMP office. Such a request would be noted in the inmate’s electronic file.

An inmate could not leave Kern County without receiving permission from a deputy at the EMP office. Deputy Wilson testified, “We didn’t allow anybody to leave the state.”

Deputy Wilson testified that if defendant had advised him that he worked as a long-haul truck driver, Wilson would have told defendant that he could not leave the county. Wil-son explained that “[a]ll of the subjects that are on the [EMP] are in custody with our county and are actually serving felony sentences so we don’t allow them to go out of county of [sic] the chance they may escape or not return.” Wilson testified that even if a deputy gave an inmate permission to leave the state, that deputy would have entered that information in de-fendant’s electronic file.

Deputy Wilson testified defendant never called him or asked him for permission to leave Kern County between De-cember 12, 2012, and January 31, 2013.

Defendant’s initial contacts with the EMP office

Deputy Wilson testified he reviewed the notes in defen-dant’s electronic file, and that on December 17, 2012, five


days after he was released, defendant called the EMP office and spoke to the clerk. Defendant requested permission to leave his house and attend a gatekeeper meeting, and said he would be home at a certain time.6

On December 26, 2012, defendant called the EMP office, spoke to Senior Deputy Nelson, and requested permission to go to Shafter; Lieutenant Pluggae granted permission.

Defendant speaks with the EMP OfficeDeputy James Veon testified that on December 28, 2012,

he was working in the EMP office. He noticed on the com-puter screen that defendant committed a zone violation. The GPS data showed that defendant was in Monrovia in South-ern California, and he was traveling north towards Bakers-field. Veon reviewed defendant’s GPS history and discovered he had been in Arizona two days earlier. Veon checked de-fendant’s file and did not find any information that he had permission to leave Kern County.

Deputy Veon testified he called Deputy Wilson, and asked whether defendant had permission to leave Kern County. Wilson testified defendant never called him prior to leaving Kern County, and he never gave permission for him to go to Monrovia.

Deputy Veon testified he called defendant’s cell phone. Defendant answered, and Veon asked why he was outside Kern County. Defendant said he was a long-haul truck driver and part of his job was to leave the county. Veon asked de-fendant if he had received permission to leave. Defendant said he got permission from a deputy, but he did not give the deputy’s name or phone number. Veon told defendant to call Deputy Wilson and gave his contact information. Veon en-tered notes about this exchange in defendant’s electronic file.

Deputy Wilson testified defendant never called him about being in Monrovia after being ordered to do so by Deputy Veon.7

Issuance of arrest warrantDeputy Veon testified that on January 21, 2013, he was

on duty at the EMP office and checked defendant’s records. According to defendant’s GPS information, he had been in McGregor, Texas, three days earlier. Veon testified there were no further signals from the ankle monitor. The computer pro-gram indicated the battery had not been recharged and it was dead. Veon called defendant’s cell phone, but defendant did not answer and it did not switch to voicemail.

Deputy Veon testified he advised Deputy Wilson about de-fendant’s location and the status of his ankle monitor. Wilson

6. The electronic file notes were introduced as Exhibit No. 2, and consist of a single page separate and apart from the GPS report. These notes have columns for date/time of entry, the event, the deputy’s name, and the action taken.

7. The information in this case charged defendant with commit-ting the escape based on the December 28, 2012, incident, when the GPS data reflected that defendant was in Monrovia in Southern Cali-fornia, and defendant admitted during the cell phone call that he was not in Kern County.

said that he did not give permission for defendant to leave Kern County.

Deputy Veon testified that when the battery in an inmate’s ankle monitor fails, he tries to contact the inmate by tele-phone or in person to resolve the matter. Veon again tried to call defendant, and defendant did not answer. Veon went to defendant’s residence in Bakersfield and no one was there.

Deputy Veon testified that on January 24, 2013, an arrest warrant was issued for defendant because of his violation of the EMP release.

The GPS reportSergeant Kessler also testified about defendant’s where-

abouts for the entirety of his time on EMP, based on the printed GPS report compiled from the data transmitted from his ankle monitor, and which the court had admitted into evi-dence over defendant’s objections.8

Kessler testified that on the afternoon of December 21, 2012, defendant had traveled on a highway through Pixley and Tulare, outside of Kern County. On December 22, 2012, he was back at his house in Bakersfield.9

On December 27, 2012, defendant was in the area of Phoenix, Arizona. On December 28, 2012, he was in Brawley and Sylmar. On December 29 and 30, 2012, he was in Visa-lia, Hanford, Tulare, Tipton, McFarland, and Bakersfield. On December 31, 2012, he was at his house in Bakersfield; later that day, he was in Castaic, just south of Kern County.

On January 2, 2013, defendant was back at his Bakersfield home. On January 3 and 4, 2013, defendant left Bakersfield, and went to Barstow, the Tehachapi area, and several cities in Arizona.

Deputy Wilson testified that according to the separate notes in defendant’s electronic file, Deputy Blanks reported on January 4, 2013, the GPS data reflected that defendant was in Mojave. Blanks called defendant’s cell phone, but there was no answer.

Sergeant Kessler testified that according to defendant’s GPS report, defendant traveled from Bakersfield, to Tehacha-pi (Kern County) and Needles (San Bernadino County) in California, and several cities in Arizona, New Mexico, and Texas, on January 17 and 18, 2013. The last GPS signal was from McGregor, Texas, and there were no further GPS sig-nals after January 18, 2013.

8. The court admitted the entirety of the GPS report into evidence. It consists of approximately an inch of documents in a three-ring bind-er. Each page has approximately 50 single-space entries with columns for defendant’s name, identification number, the time and date, and his specific location at that time, for the period of December 12, 2012, to January 18, 2013. The locations were specified as either street address-es (e.g., “1158 Bunker Road, McGregor, TX 76657, USA”) or high-ways (“Blue Star Memorial Highway, Needles, CA, 92363, USA”). The GPS report is entirely separate from the single-page of case notes that the deputies entered into defendant’s electronic file.

9. In the nonpublished portion of this opinion, we will address defendant’s argument that the court erroneously permitted the pros-ecution to introduce evidence that he left the county and the state on occasions other than the charged offense on December 28, 2012.


Sergeant Kessler testified to his opinion that the GPS reports were accurate because the GPS data showed defen-dant’s travel routes were loops from Bakersfield to Arizona or Texas, and then back to Bakersfield.

Deputy Wilson testified defendant never called him to re-quest permission to leave Kern County on these occasions. If an inmate had called another deputy in the EMP office and requested permission to leave the county and/or the state, that would have been important enough for the deputy to make a note in the electronic record.

Defendant calls the EMP officeSenior Deputy Josh Brooks testified he was working at

the EMP office on February 11, 2013, and received a tele-phone call from defendant. Defendant said he left his charg-ing device at home. Brooks asked defendant where he was. Defendant said he was a truck driver, he was in Utah, and he would return the following day, around 2:30 a.m. or 3:00 a.m. Brooks directed defendant to return immediately. Brooks asked defendant for whom he worked. Defendant said he worked for Lanic Transportation and gave a telephone number.

After he talked to defendant, Deputy Brooks discovered there was an outstanding arrest warrant for him in this case. He did not call defendant back and advise him about the warrant.10

The parties stipulated that when defendant was arrested and taken into custody, ankle monitor No. NF0002048 was secured to his ankle.

Conviction and sentenceAfter a jury trial, defendant was convicted as charged of

violating Penal Code section 4532, subdivision (b)(1), that he willfully and unlawfully, while being a prisoner convicted of a felony, escaped from the EMP on or about December 28, 2012, based on the Monrovia incident.

Defendant was sentenced to an aggregate term of nine years eight months on a series of cases. Within that aggre-gate term, he was sentenced to eight months (one-third the midterm) for his escape conviction in this case.

DISCUSSION

I. ADMISSION OF GPS EVIDENCEDefendant contends the court erroneously admitted the

report on the GPS data, and permitted the deputies to rely on that report to testify about defendant’s whereabouts and that he violated the terms of the EMP by leaving Kern County and California.

Defendant argues the report about the GPS data transmit-ted by the ankle monitor was not properly authenticated, the court improperly relied on section 1552 to admit the evi-dence, and Sergeant Kessler’s testimony at the evidentiary

10. On cross-examination, Deputy Wilson acknowledged that Deputy Brooks failed to make any notes about the February 11, 2013, conversation in defendant’s electronic file.

hearing was insufficient to establish the foundation for the report. Defendant asserts that Sergeant Kessler did not know anything about the underlying software and could not authen-ticate the hundreds of location points in the GPS report since it was generated by software produced by the AMS company and not by the sheriff’s department. Defendant contends the court should have excluded the GPS report at the evidentiary hearing because the People failed to call an expert from the company that created the tracking software and managed the servers to authenticate the evidence.

Defendant further argues that the GPS report was hear-say and was not admissible as either an official record or a business record. Defendant acknowledges a series of cases have found computer generated photographs are not hearsay, but asserts that photographic evidence is different from GPS data because it is automatically generated without human manipulation. Defendant asserts the GPS data in this case was subject to manipulation because the deputies could enter notes and modify defendant’s electronic records.

Defendant raises another hearsay issue based on the serial number on the ankle monitor, and argues that the GPS data was linked to that serial number but the testimony about that identification was hearsay.

Finally, defendant asserts the GPS report constituted in-admissible “testimonial hearsay” because it was solely pro-duced to prosecute him for the escape charge in this case.

We review the trial court’s evidentiary rulings on authen-tication, foundation, and hearsay for an abuse of discretion. (People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith); People v. Waidla (2000) 22 Cal.4th 690, 725; People v. Smith (2009) 179 Cal.App.4th 986, 1001.) We will not disturb the court’s ruling “ ‘except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]” (Goldsmith, supra, 59 Cal.4th at p. 266.)

A. Authentication

We begin with defendant’s argument that Sergeant Kes-sler’s testimony at the evidentiary hearing was insufficient to authenticate the computer records of defendant’s GPS data. Defendant asserts the GPS data could not have been authen-ticated unless the People introduced the testimony of a cus-todian who worked for AMS or the appropriate company that produced the software, operated the servers and hardware, and could have explained how the ankle monitor generated the GPS data and the computer report was produced.

“Authentication of a writing … is required before it may be admitted in evidence. [Citations.] Authentication is to be determined by the trial court as a preliminary fact [citation] and is statutorily defined as ‘the introduction of evidence suf-ficient to sustain a finding that it is the writing that the pro-ponent of the evidence claims it is’ or ‘the establishment of such facts by any other means provided by law’ [citation].” (Goldsmith, supra, 59 Cal.4th at p. 266.)


“The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered. [Citation.] Essentially, what is necessary is a prima facie case. ‘As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document’s weight as evidence, not its admissibility.’ [Citation.]” (Goldsmith, supra, 59 Cal.4th at p. 267.)

Section 1552, subdivision (a) states a presumption that printed representations of computer information are accurate representations of such information:

“A printed representation of computer information or a computer program is presumed to be an accurate repre-sentation of the computer information or computer pro-gram that it purports to represent. This presumption is a presumption affecting the burden of producing evi-dence. If a party to an action introduces evidence that a printed representation of computer information or computer program is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representa-tion of the existence and content of the computer infor-mation or computer program that it purports to repre-sent.” (§ 1552, subd. (a), italics added.)11

Section 1552’s presumption “operates to establish only that a computer’s print function has worked properly. The presumption does not operate to establish the accuracy or reliability of the printed information. On that threshold is-sue, upon objection the proponent of the evidence must offer foundational evidence that the computer was operating prop-erly.” (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1450 (Hawkins), italics added.)

However, a series of cases have clarified the type of au-thentication required for the admission of computer records. “It is settled computer systems that automatically record data in real time, especially on government-maintained comput-ers, are presumed to be accurate. Thus, a witness with the general knowledge of an automated system may testify to his or her use of the system and that he or she has down-loaded the computer information to produce the recording. No elaborate showing of the accuracy of the recorded data is required. Courts in California have not required ‘testimony regarding the “ ‘acceptability, accuracy, maintenance, and reliability of ... computer hardware and software’ ” in similar situations. [Citations.]’ [Citation.] [¶] The rationale is that while mistakes may occur, such matters may be developed on cross-examination and should not affect the admissibility of the printout or recording of the data itself. [Citations.]”

11. Section 1553, subdivision (a) states a similar presumption for a “printed representation of images stored on a video or digital medium.”

(People v. Dawkins (2014) 230 Cal.App.4th 991, 1003 (Dawkins), italics added; see Goldsmith, supra, 59 Cal.4th at p. 272; People v. Martinez (2000) 22 Cal.4th 106, 132; People v. Lugashi (1988) 205 Cal.App.3d 632, 642; People v. Nazary (2010) 191 Cal.App.4th 727, 755 (Nazary), over-ruled on other grounds in People v. Vidana (2016) 1 Cal.5th 632, 648.)

1. AnalysisThe court did not abuse its discretion when it relied on

Sergeant Kessler’s testimony at the pretrial evidentiary hear-ing to authenticate the GPS data and admit the report. Kes-sler extensively testified about his familiarity and knowledge of how the ankle monitor transmitted defendant’s location through GPS data, the computer software used to track the ankle monitor and the GPS data, and how the GPS report was generated. Kessler also testified about the accuracy and reliability of the GPS report generated from the ankle moni-tor’s signals.12

Defendant asserts the court erroneously relied on section 1552 to authenticate the report. While defendant challenged Sergeant Kessler’s testimony on cross-examination, he did not introduce any evidence that the computer that produced the GPS data transmitted by the ankle monitor was not work-ing properly, question the reliability of the GPS data pro-duced by the computer, or undermine Kessler’s testimony on this point, to shift the burden to the People to establish such a foundation. (People v. Martinez, supra, 22 Cal.4th at p. 133; cf. People v. Rekte (2015) 232 Cal.App.4th 1237, 1246 [de-fendant undermined presumptions created by sections 1552 and 1553 by introducing expert testimony and evidence that computer-generated information and digital images were in-accurate and unreliable, shifting burden to proponent who failed to refute defense expert, such that evidence was not authenticated].)

Defendant argues that Sergeant Kessler’s testimony did not provide the requisite foundation and authentication, and that an expert from AMS should have testified as custodian about the operation of the hardware and software that produced the GPS data and the report. A similar argument was rejected in People v. Lugashi, supra, 205 Cal.App.3d 632, which ad-

12. In Commonwealth v. Thissell (Mass. 2010) 457 Mass. 191 [928 N.E.2d 932], the court explained that GPS technology “is widely used and acknowledged as a reliable relator of time and location data.” (Id. at p. 198, fn. omitted.) “A review of the origins of GPS technology provides further assurance of its reliability. See National Space-Based Positioning, Navigation, and Timing Coordination Office, The Global Positioning System (‘U.S.-owned utility that provides users with po-sitioning, navigation, and timing [PNT] services’). The GPS system consists of three segments operated and maintained by the United States Air Force. [Citation.] The space segment is comprised of twen-ty-four satellites which transmit one-way signals giving the current GPS location and time. The control segment consists of monitor and control stations that command, adjust, track, maintain, and update the satellites. Finally, the user segment includes the GPS receiver equip-ment that utilizes the transmitted information to calculate a user’s po-sition and time. [Citation.]” (Id. at p. 198, fn. 15.)


dressed the foundational evidence required for the business records exception to the hearsay rule in section 1271, for the admission of computer-generated credit card records. De-fendant argued that “only a computer expert, who could per-sonally perform the programming, inspect and maintain the software and hardware, and compare competing products, could supply the required testimony. However, a person who generally understands the system’s operation and possesses sufficient knowledge and skill to properly use the system and explain the resultant data, even if unable to perform every task from initial design and programming to final printout, is a ‘qualified witness’ ” for authentication purposes. (Lugashi, at p. 640; see also Goldsmith, supra, 59 Cal.4th at p. 272 [police employee’s testimony about operation of automated traffic enforcement cameras was sufficient for authentication of automatically-produced digital photographs; testimony from a technician for company that maintained automated traffic cameras, or other person with special expertise, was not required]; Dawkins, supra, 230 Cal.App.4th at p. 1003 [deputy’s testimony sufficient to authenticate computer gen-erated audio recording of 911 call].)13

Defendant argues Sergeant Kessler’s testimony about the GPS system was insufficient for authentication because he admitted that the report about defendant’s GPS data was not produced by the sheriff’s department, but instead it was re-quested from and obtained from the company. Kessler testi-fied that the GPS points are “sent from the satellites to the device, the device calculates it where it is on Earth and then puts it into the server. We cannot change the points and those are longitude/latitude points that are made.” Kessler testified that the officers could obtain reports about the inmate’s ac-tivities directly from the system, but explained that “just due to the size and not overloading the system, sometimes they are archived reports to save the space for the active partici-pants.” While the report prepared for defendant’s GPS data was requested from the company, defendant did not intro-duce any evidence to undermine Kessler’s testimony that the GPS data could not be altered once it was transmitted by the ankle monitor.

We conclude the trial court did not abuse its discretion when it overruled defendant’s authenticity objections to the computer-generated GPS report. Sergeant Kessler’s hearing testimony was sufficient to authenticate the report, and defen-

13. In United States v. Espinal-Almeida (1st Cir. 2012) 699 F.3d 588 (Espinal-Almeida), the court similarly held that expert testimony was not required to authenticate a computer-generated report of GPS data: “The issues surrounding the processes employed by the GPS and software, and their accuracy, were not so scientifically or techno-logically grounded that expert testimony was required to authenticate the evidence, and thus the testimony of … someone knowledgeable, trained, and experienced in analyzing GPS devices, was sufficient to authenticate the GPS data and software generated evidence. [Cita-tion.]” (Id. at pp. 612–613; see also Gross v. State of Maryland (2016) 229 Md.App. 24, 35–36 [142 A.3d 692] [agrees with Espinal-Almeida that expert testimony not necessary to admit records of GPS data, and officer’s testimony sufficient to authenticate records].)

dant did not introduce any evidence to undermine the reliabil-ity of the evidence and refute section 1552’s presumption.

We further note that the reliability of the GPS data was corroborated by defendant’s admissions to Deputy Veon on December 28, 2012, that he had left Kern County and claimed he had received permission to do so because of his trucking job; and his admissions to Deputy Brooks on Febru-ary 11, 2013, when he said he was in Utah.

B. Hearsay

Defendant next contends that even if the computer report of the GPS data generated from defendant’s ankle monitor was properly authenticated, it still constituted hearsay and was inadmissible.

In California, a series of cases previously held that com-puter records were hearsay, and admissible if the proponent satisfied the requirements for either the official or business records exceptions to the hearsay rule. (§ 1271; see, e.g., People v. Lugashi, supra, 205 Cal.App.3d at pp. 641–642; Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 797–799.)

In Hawkins, supra, 98 Cal.App.4th 1428, however, the court held that not all information stored or generated by a computer constituted hearsay. In that case, the defendant was accused of improperly accessing his employer’s com-puter. The prosecution moved to introduce computer gener-ated printouts that showed the time that defendant accessed certain computer files. A computer expert testified about the accuracy of the computer clock when the records were made. The defendant argued the computer records were inadmis-sible hearsay. (Id. at pp. 1446–1447.)

Hawkins reviewed various cases that held computer print-outs were admissible if they fell within the hearsay excep-tions for business or official records. However, Hawkins noted that “these cases have not discriminated among the different types of information that computers can print out. A computer can be used to store documents and informa-tion entered by human operators. A computer can also be programmed to generate information on its own, such as a record of its internal operations. Some jurisdictions have rec-ognized that the latter type of computer-generated informa-tion is not hearsay because it is not a statement by a person.” (Hawkins, supra, 98 Cal.App.4th at p. 1449, italics added.)

Hawkins relied on this distinction to find that printouts of “computer-generated information,” as opposed to “comput-er-stored information,” were not hearsay based on the Evi-dence Code definitions. (Hawkins, supra, 98 Cal.App.4th at p. 1451.)

“ ‘ “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the mat-ter stated.’ [Citation.] ‘ “Statement” means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written


verbal expression.’ [Citation.] ‘ “Person” includes a natural person, firm, association, organization, partner-ship, business trust, corporation, limited liability com-pany, or public entity.’ [Citation.] The Evidence Code does not contemplate that a machine can make a state-ment.” (Id. at p. 1449, italics added.)

Hawkins agreed with cases from other jurisdictions that held automatically generated computer evidence was not hearsay:

“ ‘The printout of the results of the computer’s internal operations is not hearsay evidence. It does not represent the output of statements placed into the computer by out of court declarants. Nor can we say that this printout it-self is a “statement” constituting hearsay evidence. The underlying rationale of the hearsay rule is that such statements are made without an oath and their truth can-not be tested by cross-examination. [Citations.] Of con-cern is the possibility that a witness may consciously or unconsciously misrepresent what the declarant told him or that the declarant may consciously or unconsciously misrepresent a fact or occurrence. [Citation.] With a ma-chine, however, there is no possibility of a conscious misrepresentation, and the possibility of inaccurate or misleading data only materializes if the machine is not functioning properly.’ [Citations.] ‘The role that the hearsay rule plays in limiting the fact finder’s consider-ation to reliable evidence received from witnesses who are under oath and subject to cross-examination has no application to the computer generated record in this case. Instead, the admissibility of the computer tracing system record should be measured by the reliability of the system, itself, relative to its proper functioning and accuracy.’ [Citation.]” (Hawkins, supra, 98 Cal.App.4th at p. 1449.)14

Thus, data that is automatically generated by a computer is not hearsay because it is not a statement of a person. (Gold-smith, supra, 59 Cal.4th at pp. 273–274 [digital photographs automatically taken by a machine and data, such as date and time, which a computer automatically generates and imprints are not hearsay]; Nazary, supra, 191 Cal.App.4th at p. 754 [computer generated receipts, which show the date, time, and totals, are not statements inputed by a person].)

1. Cases in Other JurisdictionsSimilar distinctions about computer-generated data have

been reached by courts in other jurisdictions. In United States

14. Hawkins further concluded that “the true test for admis-sibility of a printout reflecting a computer’s internal operations is not whether the printout was made in the regular course of business, but whether the computer was operating properly at the time of the print-out,” referring to the foundational and authenticity issues discussed above. (Hawkins, supra, 98 Cal.App.4th at pp. 1449–1450.)

v. Lizarraga-Tirado (9th Cir. 2015) 789 F.3d 1107 (Lizarra-ga-Tirado), an arresting officer used a GPS device to obtain the coordinates of the location where defendant was arrested. The court held that a Google Earth satellite image, created using those GPS coordinates, did not constitute hearsay. The court noted that a photograph was not hearsay because it “merely depicts a scene as it existed at a particular time. The same is true of a Google Earth satellite image. Such images are produced by high-resolution imaging satellites, and though the cameras are more powerful, the result is the same: a snapshot of the world as it existed when the satel-lite passed overhead. Because a satellite image, like a photo-graph, makes no assertion, it isn’t hearsay.” (Id. at p. 1109.)

Lizarraga-Tirado also held that “[a] tack placed by the Google Earth program and automatically labeled with GPS coordinates isn’t hearsay,” because the relevant assertion “isn’t made by a person; it’s made by the Google Earth pro-gram. Though a person types in the GPS coordinates, he has no role in figuring out where the tack will be placed. The real work is done by the computer program itself. The program analyzes the GPS coordinates and, without any human inter-vention, places a labeled tack on the satellite image. Because the program makes the relevant assertion – that the tack is accurately placed at the labeled GPS coordinates – there’s no statement as defined by the hearsay rule.” (Lizarraga-Tirado, supra, 789 F.3d at pp. 1109–1110.)

Lizarraga-Tirado concluded that evidentiary concerns about the machine itself would be addressed by the appro-priate authentication. (Lizarraga-Tirado, supra, 789 F.3d at p. 1110; see also United States v. Hamilton (10th Cir. 2005) 413 F.3d 1138, 1142–1143 [computer generated header in-formation on digital images, which showed date when im-ages were posted, did not constitute hearsay]; United States v. Khorozian (3d Cir. 2003) 333 F.3d 498, 506 [information generated by a fax machine, including the date when the fax was sent, was not hearsay].)

In State v. Kandutsch (2011) 336 Wis.2d 478 [799 N.W.2d 865] (Kandutsch), the defendant was convicted of operating a motor vehicle “while under the influence of an intoxicant.” (Id. at p. 482, fns. omitted.) His conviction was “based in large part upon inference from a report generated by an elec-tronic monitoring device (EMD) that [the defendant] was wearing” (ibid.), that showed the defendant had been driving for approximately 20 minutes before he was stopped by the police and arrested for being heavily intoxicated. The defen-dant argued the report was hearsay. (Ibid.)

Kandutsch held the report generated from the defendant’s electronic monitoring device was not hearsay. In doing so, the court similarly distinguished “between computer-stored records, which memorialize the assertions of human declar-ants, and computer-generated records, which are the result of a process free of human intervention.” (Kandutsch, supra, 336 Wis.2d at p. 505, italics added.) As in Hawkins, the court held that computer generated records do not implicate the concerns of the hearsay rule “when the evidence is not the


product of human intervention. [Citation.]” (Kandutsch, at p. 505).)

“A record created as a result of a computerized or me-chanical process cannot lie. It cannot forget or misun-derstand. Although data may be lost or garbled as a re-sult of some malfunction, such a malfunction would go to the weight of the evidence, not its admissibility. The record does not present the danger of being taken out of context, because the opposing party has a right to put it in context. [The law enforcement agent] perhaps sum-marized it best when she testified regarding the [Elec-tronic Monitoring Device], ‘It doesn’t have a mind of its own, it’s a computer device, it’s a high-tech device, it reports things when they happen.’ ” (Ibid., fns. omitted.)

Kandutsch concluded that since the report about defen-dant’s movements “was generated as ‘the result of an au-tomated process free of human intervention,’ it was not hearsay,” and the evidence was admissible since the general authentication requirements were satisfied through the testi-mony of two law enforcement officers. (Kandutsch, supra, 336 Wis.2d at p. 506; see also Commonwealth v. Thissell, supra, 457 Mass. 191 [928 N.E.2d 932]; Commonwealth v. Royal (2016) 89 Mass.App.Ct. 168, 171–172 [46 N.E.3d 583] [similarly relying on the distinction between “comput-er-generated” as compared to “computer-stored” records for hearsay analysis].)

2. AnalysisThe computer-generated report of the GPS data generated

by defendant’s ankle monitor did not consist of statements of a person as defined by the Evidence Code, and did not constitute hearsay as statutorily defined. The ankle monitor automatically sent signals of defendant’s location to the GPS, which automatically generated the computer data about de-fendant’s location at the specific dates and times, so that there was “no statement being made by a person regarding the data information so recorded.” (Goldsmith, supra, 59 Cal.4th at p. 274; Hawkins, supra, 98 Cal.App.4th at p. 1449; Nazary, supra, 191 Cal.App.4th at pp. 754–755; Dawkins, supra, 230 Cal.App.4th at p. 1004.)

Defendant argues that the GPS report in this case was not automatically generated by a computer because Sergeant Kessler testified the data was subject to manipulation by the deputies who had access to the GPS software. As explained above, however, Sergeant Kessler testified that the deputies could enter information into an inmate’s electronic file about his curfew, schedule, and contacts with them, and they could not delete those notes. More importantly, Kessler testified the deputies could not alter or manipulate someone’s actual location or the GPS location data transmitted by the ankle monitor and depicted in the computer. “We cannot change the points and those are longitude/latitude points that are made.”

Defendant next contends that testimony about the identifi-cation number on defendant’s ankle monitor, that connected him to the report about the GPS data, also consisted of hear-say. At the evidentiary hearing, defendant raised two founda-tional evidentiary objections: that the printed report about the GPS data was hearsay, and it was not properly authenticated. However, defendant never raised any hearsay or evidentiary objection about how the sheriff’s department identified him as the person wearing the ankle monitor that generated the GPS data contained in the report.

By failing to object below, defendant deprived the pros-ecution of the opportunity to introduce evidence on this point and has thus waived the hearsay claim. (People v. Bolin (1998) 18 Cal.4th 297, 320; People v. Blacksher (2011) 52 Cal.4th 769, 797.) If such an objection had been made, the People could have called Deputy Patterson to testify at the evidentiary hearing in a manner consistent with his subse-quent trial testimony, that he personally attached the ankle monitor to defendant, and read aloud the identification num-ber on that device that corresponded to the GPS report. Pat-terson would have been available for cross-examination as to the correctness of the identification number on defendant’s ankle monitor and the number stated in the GPS report. (Cf. People v. Lopez (2012) 55 Cal.4th 569, 583.)

We further note that defendant also waived any hearsay objection on this point based on a stipulation that he agreed to, and that was read to the jury at the end of the trial: that when defendant was arrested and taken into custody, ankle monitor No. NF0002048 was secured to his ankle.

Finally, defendant argues that the computer-generated report of GPS data was also inadmissible because it consti-tuted testimonial hearsay within the meaning of Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305. We have already found the evidence was not hearsay. In addition, it was not “testimonial” because it was originally transmitted from the ankle monitor to the Kern County Sheriff’s Department to administer defendant’s release pursuant to the EMP, and was thus “created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial ….” (Id. at p. 324.)

[ II, See FOOTNOTE*, Ante ]

DISPOSITIONThe judgment is affirmed.

POOCHIGIAN, J.WE CONCUR: LEVY, Acting P.J., SMITH, J.



THE PEOPLE, Plaintiff and Respondent, v.THOMAS D. BONA, Defendant and

Appellant.

2d Crim. No. B277751In The Court of Appeal of the State of CaliforniaSecond Appellate DistrictDivision Six(Super. Ct. No. 16PT-00428)(San Luis Obispo County)


ORDER MODIFYING OPINION AND DENYING REHEARING; NO

CHANGE IN JUDGMENTTHE COURT:

It is ordered that the opinion filed on September 20, 2017, be modified as follows:

On page 9, at the end of the first paragraph, the following is added as footnote 6:

For the first time on appeal, appellant contends the Peo-ple failed to comply with rule 3.1332 of the California Rules of Court (rule 3.1332), which governs the grant-ing of continuances in “civil cases” in which a date has been “set for trial.” This contention is forfeited because it was not raised below. In any event, appellant fails to demonstrate that rule 3.1332 applies to MDO proceed-ings, which are brought under the Penal Code. His ob-jections to the continuances were expressly based upon his right to have his petition heard within 60 days of its filing, as provided in section 2996(b). Moreover, he was only aggrieved by the continuances to the extent they violated that right.

Because a new footnote 6 is being added, all subsequent footnotes in the opinion must be renumbered accordingly.

There is no change in the judgment. Appellant’s petition for rehearing is denied.