2026 CAJPA - Case Law Update

CAJPA 2026

CASE LAW UPDATE JPA ADMINISTRATION AND INSURANCE CASES.......... 2-6 WORKERS’ COMPENSATION CASES............................. 7-14 CIVIL RIGHTS CASES........................................................ 14-18 TORT, DANGEROUS CONDITION, IMMUNITIES CASES................................................................................18-24 EMPLOYMENT CASES......................................................25-29

CAJPA 2026 CASE LAW UPDATE JPA ADMINISTRATION AND INSURANCE CASES By: Eric R. Brenneman & David Agosto of Demler Armstrong & Rowland, LLP1 Black v. Los Angeles County Metropolitan Transportation Authority (2025) 116 Cal.App.5th 677

and section 946.4 excuses claim presentation where no conforming statement is on file during the 70 days after the cause of action accrues.

Summary: A nonprofit public benefit corporation created by a governmental entity to carry out that entity’s mission is a “public entity” subject to the Government Claims Act’s (GCA) claims-presentation requirement, even if it lacks the powers of taxation or eminent domain.

But a plaintiff may be excused from presenting a claim, and is entitled to amend to allege as much, if the corporation has not shown it registered on the Registry of Public Agencies as required.

When a plaintiff alleges a public agency has not complied with the registration requirements, it is the public agency's burden to prove compliance. (§ 946.4, subd. (b).) PTSC failed to offer compliance with Government Code section 53051 and PTSC’s relationship with MTA did not extend MTA’s registered status to PTSC. Here, PTSC showed only that it registered with the Secretary of State—not with the county clerk as required. Because Black’s invocation of these statutes was a permissible proffer of how he would amend, the trial court abused its discretion in denying leave. Black is allowed leave to amend his complaint to show that he is excused from GCA’s claim presentation under §946.4(a).

Discussion: Andrew Black, a former employee, sued the Los Angeles County Metropolitan Transportation Authority (MTA) and Public Transportation Services Corporation (PTSC) for wrongful termination and violation of Labor Code section 970.” Black did not present a pre-suit claim to either entity, as required by the GCA. The trial court sustained PTSC’s demurrer without leave to amend, finding that PTSC is a public entity. MTA created PTSC as a nonprofit public benefit corporation to supply and manage the workers who carry out MTA’s mission. MTA’s administrative code provides that PTSC “functions solely as an organizational unit of the MTA. Thus, the PTSC met the definition of a public entity and that it did not need to register separately on the Registry of Public Agency and that Black had raised the registration issue too late.

County of San Bernardino v. Insurance Company of the State of Pennsylvania (2026) 174 F.4th 587 Summary: Under California law, the court can look to extrinsic evidence including historical industry context and internal party documents to resolve ambiguous terms in a coverage agreement.

Before a court concludes that a prior judicial construction renders an ambiguous provision unambiguous as a matter of law, it must “determine whether the context in which the construed term appears is analogous to the context of the term before it.”

Discussion: The County of San Bernadino (“the County”) sought declaratory relief against Insurance Company of the State of Pennsylvania (ICSOP) over insurance coverage for environmental remediation costs at the County-owned Chino Airport. The County sought coverage under three umbrella insurance policies issued by ICSOP from 1966 to 1975, claiming that ICSOP was liable for all property damage up to $9 million per occurrence. ICSOP, however, argued that it is liable only for damages up to $9 million per year in the aggregate.

The Court of Appeal held PTSC is a public entity for claims-presentation purposes. Determining public-entity status is a multi-faceted, case-specific inquiry in which an entity’s powers are not the only consideration; the circumstances of its creation and its relationship with other governmental entities are also significant factors. PTSC was created by a governmental entity pursuant to statute, its authority is limited to what MTA assigns, and it acts as the instrument of MTA, making it analogous to entities held public in Stone v. Alameda Health System (2024) 16 Cal.5th 1040, 1067 and Allen v. San Diego Convention Center Corp., Inc. (2022) 86 Cal.App.5th 589.

Initially the central issue of the case was the number of occurrences, not aggregate limits. Early in litigation ICSOP admitted there was no aggregate limit. However, ICSOP later moved to withdraw that admission, and the Magistrate allowed it as it was of “mammoth importance.” The District Court ruled that this was not clearly erroneous or contrary to law. ICSOP also sought, and was granted, declaratory judgment that the aggregate provision included a general aggregate limit that included property damage.

The court also clarified its ruling in Hagman v. Meher Mount Corp.

(2013) 215 Cal.App.4th 82, stating that Hagman merely held that an entity’s status as a nonprofit public benefit corporation doesn’t automatically confer public entity status. Hagman did not state that a nonpublic benefit corporation cannot be a public entity if it contains the attributes of a public entity that vests it with a degree of sovereignty.

The fact that PTSC lacks taxation or eminent-domain powers did not defeat its status as a public entity because: (1) PTSC was created by a government entity that dictates its authority; and (2) it serves a governmental purpose.

The district court ruled in favor of ICSOP and entered a final judgment as to the County’s declaratory action. The County appealed this decision. The Ninth Circuit Court of Appeals reviewed the case de novo and found the policies to be “not just ambiguous, but nearly incoherent”.

The Court of Appeals distinguished the facts before it as distinct from the previous case law that ICSOP relied on. The Court considered extrinsic evidence, including historical context and internal ICSOP documents, to find that the policies did not specify an aggregate limit for property damage.

The court nonetheless reversed the denial of leave to amend ruling that litigant is excused from the GCA’s claim presentation if the public agency fails to properly register with the Registry of Public Agencies as required by Government Code section 53051. (§ 946.4, subd. (a); see Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 715, 269) Government Code section 53051 serves to facilitate the GCA claims presentation requirement. It requires a public agency to file registration information with the Secretary of State and with the county clerk of each county where it maintains an office,

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The Court of Appeals affirmed that, when ambiguous, policies should be construed in favor of the insured, reversing the district court's decision and remanding the case for further proceedings.

With special thanks to James Chuong, Iryna Kulba-Verezub, and Scott Murrish.

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Fox Paine & Company, LLC v. Twin City Fire Insurance Company (2026) 2026 WL 2148053

An actual controversy over insurance coverage may exist even when coverage depends on the satisfaction of a future contingency, because actions for declaratory judgment in the insurance context nearly always depend upon several contingencies. Plaintiffs alleged that: (1) they suffered a loss; (2) the loss is covered by specific policy provisions described in the complaint; (3) they submitted “virtually all of their invoices” to defendants, seeking reimbursement; but (4) defendants have failed to reimburse them for these losses. The Court therefore rejected the position that a lack of exhaustion categorically makes a coverage dispute involving an excess policy unduly abstract or hypothetical. Imposing a blanket exhaustion prerequisite would place too much emphasis on the fact that a contingency exists and too little on the likelihood it will occur.

Summary: An insured may state a claim for declaratory relief regarding coverage under an excess policy even without alleging exhaustion of all underlying insurance, and need not allege exhaustion to state a bad-faith claim against an excess insurer. The Court adopted the reasonable likelihood standard for evaluating ripeness at the pleading stage, disapproved two prior Court of Appeal decisions that had imposed a blanket exhaustion prerequisite, and provided important guidance on the pleading sufficiency of covered-loss allegations. At the pleading stage, a coverage declaratory claim involving an excess policy is ripe if it is reasonably or practically likely that the insured’s liability will reach the excess layer; absolute proof of triggering is not required.

A party must still adequately allege covered losses implicating that policy. Without such an allegation, any disagreement regarding coverage and liability is merely academic, because the plaintiff has provided no reason to believe that the contingency of reaching the excess policy's attachment point will ever occur. It must be practically or reasonably likely that the insured's potential liability will reach into the excess coverage; absolute proof that the policies will be triggered is not required.

Discussion: After years of litigation between the principals, the primary insurer paid its full limit, and two excess insurers settled for a combined $9 million, leaving the first-layer limit not fully paid. The insureds alleged more than $43 million in covered loss and recoverable interest. Twin City, St. Paul, and Liberty Mutual all demurred, arguing that plaintiffs' claims concerning the higher-layer excess policies failed for lack of exhaustion of all underlying insurance.

The Court agreed the allegation was flawed, but it held that it was not objectionable insofar as it described a particular amount of loss as covered. While such language does assert a legal conclusion — that the losses are covered by the insurance policies — when that representation is supported by other allegations in the complaint describing what the loss involves and the policy provisions that allegedly provide coverage (both of which appeared in plaintiffs' complaint), it has enough of a factual basis to be credited at the pleading stage and to inform a court's assessment of whether the insured's losses will reach, or are reasonably likely to reach, an excess policy.

The trial court allowed plaintiffs' claims against Twin City to proceed as to its first excess layer, finding sufficient exhaustion of the primary HCC policy, but sustained the demurrers of St. Paul and Liberty Mutual — and Twin City as to its third-layer policy — without leave to amend, reasoning that Twin City had paid only $6 million of its $10 million firstexcess-layer limit and therefore exhaustion had not yet occurred for the higher layers. The Court of Appeal affirmed, treating non-exhaustion as fatal because the plaintiffs could not show coverage under those excess insurance policies, as required to support a claim for bad faith.

The California Supreme Court reversed. An actual controversy may exist even when coverage depends on a future contingency; courts should focus on “the practical likelihood that the contingencies will occur.” Plaintiffs alleged that there are actual controversies regarding whether: (1) the insurer's policy is “triggered by the exhaustion of” all underlying insurance; (2) “Plaintiffs’ losses constitute covered ‘Loss’ under the policy”; and (3) the insurer “should be held liable to pay, and must actually pay” policy benefits to plaintiffs. A blanket exhaustion prerequisite would overemphasize the existence of a contingency and force insureds into piecemeal litigation “scaling the tower of excess insurance policy-by-policy,” risking inconsistent results.

The court stated that the issue with Plaintiff’s allegation was the commingling of covered loss with recoverable interest as those are two different things, and only covered loss contributes to the exhaustion of coverage limits and is thereby capable of causing higher-layer policies to attach. Because the allegation bundled both figures into a single number, it was impossible to determine from the complaint alone whether the covered loss component — standing alone — was sufficient to reach the attachment points of the higher-layer excess policies.

Prejudgment interest on policy benefits owed does not exhaust policy limits and cannot trigger excess coverage, no matter how large the interest figure may be.

The court found plaintiffs' claims for declaratory judgment were ripe even though plaintiffs did not allege exhaustion of all underlying insurance. For a declaratory coverage action on an excess policy to be ripe at the pleading stage, “it must be practically or reasonably likely that the insured’s potential liability will reach into the excess coverage.”

The Cal. Civ. Proc. Code § 1060 expressly permits declaratory relief before any breach of the obligation has occurred. The court applied a two-part test: (1) whether the dispute is sufficiently concrete that declaratory relief is appropriate; and (2) whether withholding judicial consideration will result in the parties suffering hardship. A controversy is ripe when the facts have sufficiently congealed to permit an intelligent and useful decision to be made.

The Court also found that the hardship component of the actual controversy inquiry independently supported its conclusion. Treating a lack of exhaustion as sufficient on its own to defeat a claim for declaratory relief would impose significant hardship on insureds, require unnecessary and wasteful proceedings, and lead to potentially inconsistent outcomes and piecemeal litigation.

An insured need not allege exhaustion to sue an excess insurer for bad faith. An insurer “may breach the implied covenant of good faith and fair dealing while remaining in technical compliance with the express terms of its policy,” and its own bad faith may prevent the insured from satisfying coverage conditions.

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CAJPA 2026 CASE LAW UPDATE JPA ADMINISTRATION AND INSURANCE CASES – CONTINUED By: Eric R. Brenneman & David Agosto of Demler Armstrong & Rowland, LLP Los Angeles Unified School District v. Lexington (2026) 2026 WL 1506573

without prejudice, including the defamation cause of action. Navigators promptly declared it was withdrawing from SVO's defense, asserting that the defamation dismissal eliminated any potential for coverage.

Summary: Under California law, an “occurrence” in a liability policy can refer to the more temporally distant negligent act of the defendant insured party, rather than the directly harmful acts of the third party.

Here, the relevant occurrence was a singular incident of the LAUSD’s hiring of the employee, not the employee’s multiple harmful actions.

Under California law, the duty to defend does not depend on whether a formally labeled covered cause of action remains pending — it persists so long as the underlying factual allegations give rise to a potential for coverage. Even after Vertiv dismissed the defamation cause of action, the Fourth Amended Complaint continued to contain allegations that were functionally equivalent to defamation and disparagement — torts covered under the Navigators policy. The complaint alleged SVO engaging in seeking and/or causing third parties to issue false reports regarding the commissioning of equipment on the Project.

Discussion: LAUSD sought excess policy coverage from Lexington for the period covering 2006 — 2012 for damages arising from an employee’s sexual abuse of students from 2007 — 2012. The employee was hired in 2000.

Lexington filed a motion for summary judgement contending the employee’s multiple abusive acts spanning numerous years and victims were the relevant “occurrences” under the policies, while LAUSD alleged the 2000 hiring was the singular relevant negligent “occurrence.” The trial court agreed with Lexington, concluding that “occurrence” be interpreted to refer to the immediate injury-causing acts of the abusive teacher rather than LAUSD's alleged negligence in hiring, retaining, and supervising the teacher.

The court found that factual allegations that SVO caused third parties to issue false reports about Vertiv and that SVO disparaged Vertiv's work were sufficient to maintain the potential for a covered defamation or disparagement claim, regardless of how the causes of action were formally labeled. Duty to defend did not terminate upon dismissal of the defamation count, and Navigators was not entitled to reimbursement of defense costs incurred after such dismissal.

Navigators' also sought reimbursement for defense costs it argued were allocable solely to uncovered claims throughout the litigation.

Under California law in a mixed action where some claims are covered and some are not, an insurer may seek reimbursement only for costs it can prove by a preponderance of the evidence are allocable solely to claims that are not even potentially covered. Expert’s testimony was excluded because he assessed costs based on a standard of overwhelming import to covered claims – an incorrect legal standard.

Navigators had no admissible evidence to support its allocation claim and granted SVO’s motion for summary judgment.

The Court of Appeal reversed, finding that policy’s terminology ambiguous, as the definition of “occurrence” in the underlying policies do indicate that an “occurrence” is causal, but they do not indicate whether it is the most immediate cause (the acts of the employee) or a more distant cause (the hiring of the employee) in a situation where the insured is only directly responsible for one of the two. The Court held that LAUSD's proposed definition of “occurrence” as referencing its acts, i.e., the acts of the insured under the policy, was the most appropriate interpretation to resolve this ambiguity.

The court reasoned that, though the acts that most directly caused the injury to the students were the employee’s abusive acts, the employee was not the insured under the policy. LAUSD was the party being sued for negligence, and its expectations that the policy would cover its negligence were objectively reasonable. “Occurrence has generally been held to mean the underlying cause of the injury, rather than the injury or claim itself.”

N. River Ins. Co. v. James River Ins. Co. (C.D. Cal. 2026) 2026 WL 1455347 Summary: An excess insurer may pursue an equitable subrogation claim against a primary insurer for wrongfully refusing to settle within the primary limits. Following the Nevada Supreme Court’s confirmation that Nevada law aligns with California on this point, the claim survives a motion to dismiss where the excess insurer alleges the primary insurer rejected a within-limits demand despite knowing the case’s value exceeded those limits.

Of note, the Court rejected Lexington’s argument that both the occurrence and injury must take place during the policy period. The Court found that the policy’s clauses “merely state an “occurrence” is an act . . . during the policy period “which results in” specified injury or damage. They do not specify the injury or damage must also occur during the policy period.” The Court reversed the summary judgment ruling, and remanded the case for further proceedings consistent with this opinion

Discussion: After Marcus Collins was killed at a Las Vegas apartment complex, his estate sued the property owner, who held a $1 million primary policy with James River Insurance Co. and a $10 million excess policy with North River Insurance Co. Plaintiffs initially demanded $975,000 – an amount within James River’s policy – and James River’s defense counsel repeatedly warned that the case was worth more than $1 million. James River did not settle for the value of the initial demand.

Instead, the case was ultimately settled at $5 million, with North River contributing $4 million. North River then James River for equitable subrogation, alleging breach of the duty to settle.

Navigators Specialty v. SVO Building One (N.D. Cal., Apr. 30, 2026) 2026 WL 1180154 Summary: Insurer’s duty to defend continues even after the only expressly labeled covered claim is dismissed from the underlying lawsuit.

The district court initially granted James River’s motion to dismiss, predicting Nevada law barred the claim because the case settled within the combined limits. On appeal, the Ninth Circuit certified the question, and the Nevada Supreme Court held an excess insurer may state such a claim “when the insured would have suffered loss absent the excess

Discussion: SVO was covered by commercial general liability policy issued by Navigators Specialty insurance. The policy covered defamation. Vertiv sued SVO for breach of contract, and by July 2019 had filed a Fourth Amended Complaint asserting eighteen causes of action, including one for defamation. Vertiv dismissed several claims 4

insurer’s discharge of the liability, regardless of whether the suit settled within the combined policy limits.” N. River Ins. Co. v. James River Ins. Co. (2026) 582 P.3d 1113, 1115 On remand, because Nevada law now aligned with California, the court applied California law as the law of the forum.

after waiving punitive damages. Diblin assigned his coverage and bad-faith rights to Gagliardo, and State Farm filed a declaratory relief action, seeking a determination that it had no duty to indemnify Diblin because Gagliardo’s injuries were not the result of an “accident”, and therefore Gagliardo’s damages did not arise from a covered “occurrence” under the policy. The trial court held that State Farm had no duty to indemnify because the liability did not arise from an “occurrence,” and alternatively that the willful-conduct exclusion and Insurance Code section 533 barred coverage.

The court then denied the motion to dismiss. The aim of equitable subrogation is “to shift a loss for which the insurer has compensated its insured to one who caused the loss, or who is legally responsible for the loss caused by another and whose equitable position is inferior to the insurer's.” (State Farm Gen. ins. Co. v. Wells Fargo Bank, N.A., (2006) 143 Cal.App.4th 1098, 1112)

The Court of Appeal affirmed. It held that the meaning of “accident” is settled in California: an accident is “an unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.” (Liberty Surplus Ins. Corp. v.

Ledesma & Meyer Construction Co. (2018) 5 Cal.5th 216, 221; Delgado v. Interinsurance Exchange (2009) 47 Cal.4th 302, 308.) Because “accident” refers to the insured’s conduct, an injury is not accidental so long as the insured intended the act that produced it, regardless of subjective intent as to the harm. Gender violence – defined as violence “based on” the victim’s gender— is an intentional tort. Thus, the jury’s gender-violence finding established intentional conduct outside coverage.

An “excess carrier may maintain an action against the primary carrier for wrongful refusal to settle within the latter’s policy limits.”

(Commercial Union Assurance Cos. v. Safeway Stores, Inc. (1980) 26 Cal.3d 912, 917.) Courts tend to find the element of superiority of equities “favors the excess insurer in a subrogation dispute between a primary and an excess insurer." (Great Am. All. Ins. Co. v. Cont'l Cas. Co. (S.D. Cal. Aug. 12, 2025) No. 23-CV-1796-BAS-JLB, 2025 WL 2323512, at *24) Here, North River’s allegations—that James River refused a within-limits demand despite knowing the case’s value exceeded its limit, forcing North River to pay $4 million—sufficiently raised an inference that North River’s equitable position was superior. Whether an insurer acted unreasonably in rejecting a within-limits settlement is ordinarily a jury question, so the objection that the allegations were conclusory does not warrant dismissal.

The court also rejected the argument that the absence of a punitive award undercut the finding of intentional conduct. The jury found the elements supporting punitive damages, and California does not permit punitive damages for accidental conduct; Gagliardo’s waiver was strategic, not a factual determination of accident.

The court also found that a separate negligence finding did not mandate coverage because every cause of action, including negligence, was based on the same conduct - Diblin’s attack on Gagliardo – and the jury was never told intentional conduct precluded a negligence finding. Lastly, the court held that the concurrent-causes doctrine did not apply. Under this doctrine, an insurer has a duty to indemnify an insured if a covered risk is a proximate cause of the injury, even if a noncovered risk also jointly caused the injury in question. (State Farm Mut. Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 97.) Here, there was only one course of conduct that caused the harm: the assault. Thus, the Concurrent Causes Doctrine does not apply.

State Farm Fire & Casualty Co. v. Diblin (2025) 114 Cal. App.5th 1245 Summary: Under California law, injuries inflicted through intentional conduct – in this case, gender violence – are not considered an “accident” and therefore do not arise from an “occurrence” within the meaning of a homeowner’s liability policy. A concurrent finding of negligence does not convert the deliberate act into a covered accident or trigger a duty to indemnify if the finding of negligence rested on the same intentional conduct.

Discussion: Curtis Diblin attacked his housemate, Gagliardo, in their home in May 2015, allegedly intending to commit a sexual assault.

Diblin was criminally charged and pleaded guilty to assault with intent to commit a sex crime, admitting great-bodily-injury and dangerousweapon enhancements. Gagliardo then brought a civil action asserting causes of action for sexual assault, sexual battery, gender violence (Civ. Code § 52.4), violations of the Ralph Act and the Tom Bane Civil Rights Act, sexual harassment, and negligence. Every cause of action, including negligence, rested on the same conduct: Diblin’s attack on Gagliardo

Westchester Fire Insurance Company v. The Roman Catholic Bishop of Orange (C.D. Cal. 2026) 2026 WL 1945162 Summary: In an umbrella policy’s “defense settlement” provision requiring the umbrella insurer to defend suits arising from an occurrence “not covered” by the underlying policy, the phrase “not covered” refers to the scope of the underlying insurer’s indemnity coverage, not its broader duty to defend. Where the umbrella policy’s broader definitions capture injuries the underlying policy does not, the umbrella insurer owes a primary duty to defend—even in a co-primary capacity.

Diblin was insured under a State Farm homeowner’s policy that covered bodily injury caused by an “occurrence,” defined as “an accident,” and that excluded bodily injury “expected or intended by the insured” or resulting from the insured’s “willful and malicious acts.” State Farm defended under a reservation of rights.

Discussion: Westchester, a successor in interest to Industrial Underwriters, filed a declaratory relief action seeking a declaration that it owed no duty to defend or indemnify the Roman Catholic Bishop of Orange (RCBO) in more than two

The jury found Diblin liable for gender violence and negligence. The jury also found that Diblin acted with malice and oppression. Gagliardo was awarded $2,514,500 in economic and noneconomic damages 5

CAJPA 2026 CASE LAW UPDATE JPA ADMINISTRATION AND INSURANCE CASES – CONTINUED By: Eric R. Brenneman & David Agosto of Demler Armstrong & Rowland, LLP hundred California Child Victims Act (CCVA) actions. RCBO’s primary insurer, Centennial, had been liquidated and was paying nothing.

Industrial Underwriters’ issued an umbrella to RCBO that contained a Defense Settlement provision obligating the umbrella insurer to defend suits arising from an occurrence “not covered” by the Centennial policies but covered by the umbrella policies. The parties cross-moved for partial summary judgment on whether Westchester must “drop down” and defend.

The court held that “occurrences not covered” refers to the scope of Centennial’s indemnity coverage, not its broader duty to defend.

Because the duty to defend is broader than the duty to indemnify and can exist “even where the coverage is in doubt and ultimately does not develop” (Dillon v. Hartford Acc. & Indem. Co. (1974) 38 Cal.App.3d 335, 339; Gary v. Zurich Ins. Co. (1966) 65 Cal.2d, 263, 276-77), reading “not covered” to mean “no defense owed” would render this provision inoperative, since Centennial would plainly owe a defense.

The court also held that Westchester’s own authorities confirmed that “covered” refers to the narrower scope of underlying indemnity coverage, and that any ambiguity is construed against the insurer and in favor of coverage. (McClintick v. Leonards (1930) 103 Cal.App. 768,774). The Court also distinguishes Westchester’s policy from the excess policy in Ticor Title because that policy specifically referred to occurrences “for which no defense coverage is provided by the underlying insurance,” whereas Westchester’s policy merely refers to occurrences “not covered.” (Ticor Title Ins. Co. v. Employers Ins. of Wausau (1995) 40 Cal.App.4th 1699, 1707).

The court then held the CCVA actions allege occurrences not covered

by Centennial but covered by the umbrella policies, so Westchester owes a primary duty to defend. The umbrella policies’ broad definition of “occurrence”—reaching “shock, mental anguish and mental injury”— includes the emotional and psychological injuries the CCVA plaintiffs allege, whereas the Centennial policies cover only an “accident” causing physical bodily injury, creating a coverage gap.

The court further explained that even if RCBO’s negligent hiring and supervision constitutes an “occurrence” under Centennial under Liberty Surplus Insurance Corp. v. Ledesma & Meyer Construction Co. (2018), 5 Cal.5th 216, the court must also consider whether the alleged claims fell within the umbrella policy, but not the underlying policy. Where occurrences fall within the umbrella’s definition but outside Centennial’s, the umbrella insurer must drop down as a primary insurer. This applies even in a co-primary capacity.

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WORKERS’ COMPENSATION CASES By: Brenna Hampton, Tobin Lucks LLP Calvin Gaines v. ABM Aviation, Inc and Sedgwick CMS 2026 Cal. Wrk. Comp. LEXIS 32

Stone v. City of Ukiah (ADJ12812555) (SRO), Feb. 11, 2026, Decision After Reconsideration

Summary: This case involves 24 individual petitions related to orders suspending action on various compromise and release agreements.

The WCAB granted the petitions for removal, rescinded the orders, disqualified the WCJ, and ordered reassignment of the cases. The decision emphasized the importance of settlement adequacy and due process. This case can be used by any party as precedent defining the limitations of a judge’s ability to redirect discovery on an inquiry into adequacy.

Summary: A transfer from one public agency employer to another did not affect a single CT Claim finding.

Discussion: The applicant, a fire engineer, claimed a CT psychiatric injury arising from his work from 2009 through 2019. He had been employed by the Ukiah Valley Fire District (District) until 2017 and, beginning December 17, 2017, he became employed by the City of Ukiah pursuant to an employee transfer agreement. His rank, location, and duties remained unchanged.

Discussion: The commissioners provide summaries of each of 24 cases consolidated because of common issues of fact and law in which C&Rs were filed. The first case summarized involved Calvin Gaines, a ramp scrubber for ABM, who claimed cumulative injury through December 9, 2024, to his neck, psyche, and “in the form of high blood pressure due to enduring a hostile work environment.”

Evaluating psychiatrist Daniel Mandelbaum, M.D., assigned 35 percent causation of any present disability to a prior 2004 psychiatric industrial injury at Cal Fire, 5 percent each to CT from continuing firefighting duties at Cal Fire and the City, 45 percent to the applicant’s exposure to the 2017 Redwood Complex Fire, which involved extensive firefighting in the applicant’s own community with the deaths of neighbors and friends, and 10 percent to issues with safety at work and interactions with supervisors.

On February 3, 2026, the parties filed a C&R to resolve the case for $10,000. Defendant’s cover letter accompanying the C&R stated the agreement was reached because neither party wanted to engage in further discovery and they each wished to buy their peace. Defendant also confirmed that there was no EDD lien in the case. The following day the WCJ issued an OSA requesting further information, including medical reports to determine adequacy or an explanation of why there were none. In the alternative, applicant could obtain a medicallegal evaluation to ensure substantial medical evidence supported the settlement’s adequacy. The WCJ also asked for witness statements and any information about civil settlements applicant may have “pursued” against the employer. With regard to the claimed 15 percent attorney fee requested, the judge observed that “no significant activity appeared to have occurred in the court’s record” and thus applicant’s attorney needed to make an offer of proof to explain the requested 15 percent fee.

The workers’ compensation judge (WCJ) concluded that applicant had not sustained a compensable industrial psychiatric injury and that any injury was barred because the predominant cause was not connected to events occurring with his “current” employer, the City of Ukiah.

Applicant petitioned for reconsideration.

In the Reconsideration, the panel addressed the compensability of a cumulative psychiatric injury where an applicant’s employment spanned two public entities under a formal transfer agreement. The panel rejected the WCJ’s reliance on panel authority that suggested psychiatric causation could not be aggregated across multiple employers, distinguishing the earlier decisions as factually different. The present panel reiterated that cumulative injuries, by definition, require consideration of “all causes combined,” which may include exposure with more than one employer.

Another case described involved Dayvion Smith (ADJ 21614143), a delivery associate for Amplio Logistics, who claimed an injury on December 2, 2024, to the right knee, head, toes, left arm, and left foot, resulting from a slip and fall. The October 2025 application was denied the following month by defendant asserting a post-termination defense.

About two months later, the parties filed a C&R to settle the claim for $15,000 and three days later the same judge issued an OSA, asking for all medical evidence establishing injury, reasoning that there must be some corroborating medical evidence for an alleged traumatic brain injury and it is needed to determine adequacy. If no such evidence is provided, the partes were directed to explain why applicant should receive any settlement rather than have the claim dismissed with prejudice. The judge also requested information on any third-party suits, witness statements, and justification for the attorney fee requested.

Critically, the panel agreed with applicant that the transfer from the District to the City constituted a continuation of employment rather than a true change in employment. The existence of an indemnification clause allocating workers’ compensation responsibility between the entities did not alter the compensability analysis, as such agreements pertain to contribution and indemnity, not to whether an injury arose out of employment. The commissioners also noted that the prior employer, the District, had not been joined into the proceedings and the issue of contribution was not before the Board.

The panel further observed that the WCJ analyzed the claim solely under the “predominant cause” standard, despite evidence that the applicant’s injury resulted from direct exposure to a significant violent act—fighting the Redwood Complex Fire—which would trigger the lower “substantial cause” threshold under §3208.3(b)(2). Therefore, the medical evidence appeared sufficient to establish industrial causation.

In each of the cases, the judge is described as showing concern to protect “the interests of the insured defendants from overpaying claims.”

Though “noble,” that is decidedly not part of adequacy review. The only focus must be on protecting the applicant and the public to ensure that applicant does not become dependent on the state nor inappropriately use public resources. The employer has other remedies—requesting litigation costs against frivolous claims per WCAB Rule 10421 and reporting suspected fraud to appropriate authorities per Ins. Code §1877.3(b).

The commissioners further clarified that date of injury under §5412, and date of injurious exposure, must be analyzed separately. While the record suggested a single cumulative injury with a potential date of injury through 2019 under section §5412, the panel remanded all questions apart from causation to the trial level. The Board suggested 7

CAJPA 2026 CASE LAW UPDATE WORKERS’ COMPENSATION CASES – CONTINUED By: Brenna Hampton, Tobin Lucks LLP that the last year of employment with the City of Ukiah might well have constituted the last year of injurious exposure under §5500.5 but again deferred that issue to the trial judge.

the applicant required both inpatient neurological rehabilitation and 24-hour home care. Defendant initially denied inpatient rehabilitation through the UR process, but the denial was later overturned through IMR. Defendant subsequently authorized inpatient rehabilitation and attempted to arrange home health care services through its MPN. Applicant declined the offered MPN services and remained under his wife’s care until he entered hospice shortly before his death from unrelated metastatic colon cancer on February 29, 2020.

Torres Garcia (Dec’d), v. Sergio Andrade dba SA Farm Labor Service/Zenith Ins. Co., ADJ10966476 (LAO), May 29, 2026, Decision After Reconsideration Summary: A Board panel affirmed, with amendments, a trial judge’s (WCJ’s) findings and order (F&O) addressing reimbursement for home health care services provided by an injured worker’s widow and daughter. The panel concluded that the employer had received sufficient notice of applicant’s need for home health care through multiple physician reports and requests for authorization (RFAs), to have triggered its Labor Code §4600 duty to investigate. Because defendant failed to investigate or adequately respond to that need, the Board panel (1) concluded that the widow was entitled to reimbursement for an expanded period of family-provided home health care, and (2) rejected defendant’s contention that the services were not reimbursable because they were provided outside the employer’s medical provider network (MPN). The panel returned the matter for further proceedings regarding reimbursement owed to the daughter and the reasonable value of such services.

At trial, the sole issue was whether the absence of RFAs relating to the latter stages of applicant’s treatment, and that he was treated outside the employer’s MPN, diminished the employer’s liability to reimbursement for home health care services provided by the applicant’s wife and daughter. The WCJ concluded defendant had sufficient notice to require reimbursement of the widow and daughter and issued an F&O to that effect. Defendant petitioned for reconsideration.

The panel concluded that Labor Code §4600 requires employers to furnish all reasonable medical treatment necessary to cure or relieve the effects of an industrial injury, including both skilled and unskilled home health care services. Relying on the Board’s en banc decision in Neri Hernandez v. Geneva Staffing, Inc. (2014) 42 CWCR 143, 79 CCC 682, the commissioners reiterated that an award of home health care requires a physician’s prescription or recommendation that is communicated to the employer. The panel emphasized that Neri Hernandez adopted a broad definition of a qualifying prescription, which may consist of either an oral recommendation communicated to the employer or a written referral, recommendation, or order signed by a physician. The recommendation need not contain an exhaustive description of the services to be provided. Applying those principles, the commissioners concluded that multiple physician reports satisfied the statutory prescription requirement in the present case.

Discussion: Applicant, a 71-year-old farm laborer, sustained an admitted industrial traumatic brain injury on July 29, 2017, after falling approximately six feet from a ladder. He suffered an occipital skull fracture and bilateral frontal hemorrhagic contusions and remained hospitalized before being transferred to the Centre for Neuro Skills for several months of inpatient neurological rehabilitation. He was discharged home on January 31, 2018.

Following his discharge, applicant initially lived with his girlfriend, who assisted with his daily care. On March 14, 2018, his primary treating physician (PTP) reported that an RFA would be submitted requesting home health care services for approximately five days per week.

The physician subsequently submitted several RFAs increasing the requested level of care, eventually seeking authorization for eight hours per day, seven days per week. Defendant’s utilization review (UR) approved those requests, and defendant authorized home health care services through its contracted provider, Fresno Yosemite Health Care.

Applicant’s daughter happened to be a licensed medical assistant and was hired through that provider. She was paid to care for her father between April 2 and August 17, 2018.

The panel next explained that once defendant received notice of the applicant’s need for home health care, §4600 imposed an affirmative duty to investigate that need. Citing United States Casualty Co. v.

IAC (Moynahan) (1954) 122 CA2d 427, 19 CCC 8, and Braewood Convalescent Hosp. v. WCAB (Bolton) (1983) 34 C3d 159, 10 CWCR 190, 48 CCC 566, among others, the commissioners emphasized that an employer’s obligation extends beyond merely responding to reimbursement requests. Rather, the employer must actively investigate the applicant’s medical needs, offer appropriate treatment, and make reasonable efforts to furnish necessary care. The panel saw no evidence in the record that defendant undertook any meaningful investigation after receiving the physician reports documenting applicant’s need for continuing home health care during the disputed period. That failure supported reimbursement for the services provided by the applicant’s widow from July 4, 2018, through October 17, 2019.

In July 2018, the applicant’s girlfriend moved out, and his estranged wife moved back into the family home to provide full-time care.

Testimony established that she assisted the applicant with virtually every activity of daily living, including bathing, dressing, meal preparation, toileting, hygiene, mobility, and overnight supervision. Because of the applicant’s cognitive deficits, he required constant monitoring and eventually began using adult diapers after forgetting to use the restroom independently. The applicant’s daughter continued assisting with his care while also maintaining outside employment.

The commissioners also rejected defendant’s argument that reimbursement was barred because the widow’s services constituted unauthorized self-procured treatment outside defendant’s MPN, explaining that California law permits an injured worker to obtain such care from a family member capable of providing the required care.

The fact that the services were performed by applicant’s spouse rather than an MPN provider did not preclude reimbursement under those circumstances.

After applicant transferred his treatment to another physician in late 2018, no additional RFAs for home health care were submitted for several months, although his new treating physician continued reporting that he remained permanently disabled and required lifetime treatment.

On March 14, 2019, neurologist Dr. Ian Brodie again reported that 8

The panel looked at reimbursement sought on behalf of the applicant’s daughter somewhat differently. Although they found that she may be entitled to additional compensation, the commissioners determined that the evidentiary record did not adequately itemize the services she performed or the amounts claimed, as required by §§4603.2 and 5307.8. Because the invoices failed to separate the individual services rendered, the panel deferred that issue and returned the matter to the trial level for additional evidence. The commissioners likewise deferred determination of the reasonable hourly rate and total reimbursement owed, explaining that applicants retained the burden of proving the reasonableness of the claimed charges and that the trial court should consider the daughter’s prior earnings as a paid home health care provider.

Applicant petitioned for reconsideration, arguing that the appropriate way to calculate the reimbursement rate was not the wages of the equivalent service providers, but the cost to defendant of procuring equivalent services from third-party providers. The petition argued that calculating rates based on wages failed to consider other benefits enjoyed by an outside aide hired by a third-party service provider and that applicant’s spouse was not enjoying, such as accident and injury insurance, healthcare, retirement savings, sick and vacation time, and workers’ compensation coverage. Applicant asserted that the actual cost to defendant of those services was $80 per hour at the skilled nursing level, and $38 per hour at the nonskilled attendant level.

Applicant also argued that the complexities of the case and the amount of work performed by the attorney in obtaining this increase in wage warranted a higher fee of 15 or even 18 percent.

Harvey v. SoCal Machine Inc./Truck Ins. Exchange, ADJ17547374 (SDO), Jan. 7, 2026, Opinion After Reconsideration

The Panel rescinded the reimbursement rate awarded by the judge, substituting instead applicant’s demand for $38 per hour for nonskilled nursing and $80 for skilled nursing services based on the equivalent market cost to defendant for such services. While the panel did not disagree with the WCJ’s conclusion that applicant’s spouse was entitled to two different rates based on the type of care being provided, it concluded that basing her reimbursement rate on the wages of equivalent services workers was inappropriate.

Summary: A Board panel rescinded a trial judge’s findings and award (F&A) of an hourly reimbursement rate for home healthcare services provided by an applicant’s spouse, which had been based on average wages of equivalent third-party service providers, in favor of calculating the hourly reimbursement rate based on the cost to defendant of equivalent services provided by third parties. The panel agreed with applicant’s attorney’s contention that basing the reimbursement rate on hourly wages fails to account for other factors, such as health and accident insurance and retirement benefits, enjoyed by employees of third-party providers. The panel substituted its own, higher hourly reimbursement rates for different levels of provided care and remanded the matter for determination of other issues.

The commissioners reasoned that were applicant’s spouse “not providing the required home healthcare services, defendant would need to pay a third-party provider market rates . . . depending upon the nature of the services required.” In other words, but for the applicant’s spouse assuming his care, defendant would have to pay significantly higher rates of pay to equivalent service providers. The panel concluded that it was appropriate for the defendant to pay applicant’s spouse what it would otherwise have to pay to such providers, noting that the unrebutted evidence submitted at trial provided a basis for the rates that would otherwise be charged to the defendant by third-party providers but for applicant’s spouse assuming the role of caregiver to the applicant.

Discussion: Applicant’s injuries of November 2022 renderied him “equivalent to a quadriplegic” who required assistance 24 hours per day, 7 days per week. Applicant’s spouse provided this care to him.

Defendant’s insurer offered to pay her for her services at the rate of $17 per hour, citing Labor Code §4600(h) as calling for “equitable reimbursement for home healthcare services.” Applicant’s counsel contended that the proposed reimbursement rate was not adequate or representative of the “fair market value” of the multiple services the spouse performed as a caregiver and as a “skilled nurse.”

As for the attorney fee, the panel agreed with applicant’s petition that the complexity of the issues presented, and the amount of work performed in securing the higher rate of pay, could justify an award of 15 or even 18 percent but noted that the information supporting a higher rate was not submitted at trial. The panel observed that in the petition for reconsideration, both the applicant and the attorney submitted a “verified petition requesting the award of 15 percent fees,” and agreed to return the matter of attorney fees to the trial level for further determination and presentation of evidence, along with the determination of the commencement date for the SAWW increase to applicant’s permanent total disability rate.

At trial, the parties presented evidence that the applicant required around-the-clock care, except during eight hours per week when he was able to work, which consisted of care equivalent to that provided by an in-home caregiver and sometimes equivalent to a licensed vocational nurse (LVN). The parties presented evidence of the various rates of pay of both in-home caregivers and LVNs in the area where the applicant lived, finding that rates for caregivers were between $17.30 and $21.66 per hour, while rates for skilled third-party providers ranged from $39 to $80 per hour.

Takeaway: An issue for consideration in the future is whether all thirdparty providers consider health aides as employees who receive such benefits or as independent contractors where the worker receives the base pay and there are no added benefits. Had the employer provided evidence in this area, perhaps the decisions would have been different.

The WCJ awarded hourly reimbursement for care provided by the spouse at $17.53 when applicant’s spouse was engaged in “regular caregiver duties such as laundry, meal preparation, changing sheets, and assisting applicant in dressing and bathing” and $53.55, when engaged in activities “equivalent to nursing,” like moving the injured worker by Hoyer lift The judge awarded applicant attorney fees at 12 percent of applicant’s spouse’s increased wages for previous periods of services and payment.

9

CAJPA 2026 CASE LAW UPDATE WORKERS’ COMPENSATION CASES – CONTINUED By: Brenna Hampton, Work Comp By Design Sierra v. City of Los Angeles Police Department, ADJ22400130 (LAO), Jun. 1, 2026, Order Granting Reconsideration

16 CA4th 227, 21 CWCR 153, 58 CCC 323, the Board panel observed that an employee may sustain more than one industrial injury, whether specific, cumulative, or a combination of both, and that the number and nature of the injuries are questions of fact.

Although COVID-19 is generally considered a specific injury, the record established that applicant experienced three distinct COVID-19 infections separated by short periods of TD, followed by a return to police work each time. Consequently, the panel emphasized that the arbitrator could not merge those infections into a single CT without first determining the proper characterization of each alleged injury.

Summary: A Board panel granted a defendant’s petition for reconsideration and rescinded a workers’ compensation arbitrator’s (WCA’s) findings and award (F&A), concluding that further record development was needed to determine the nature and extent of a police officer’s injuries and the benefits flowing from such determination, including entitlement to permanent disability (PD) indemnity for medical conditions arising from applicant’s three separate COVID-19 illnesses.

The panel ruled that an agreed medical evaluator’s (AME’s) reporting had not supported the combining of PD indemnity for several events as being caused by a single cumulative trauma (CT) claim.

The panel emphasized that the WCAB’s findings had to be consistent with Labor Code §§3208.2 and 5303, which require separate factual and legal determinations for each industrial injury and prohibit one injury from merging into another. The panel noted that pursuant to Benson v. WCAB (2009) 170 CA4th 1535, 37 CWCR 27, 74 CCC 113, a combined award may be appropriate where PD from multiple injuries cannot reasonably be parceled out, but any opinion supporting intertwined disability must be based on substantial medical evidence, with adequate explanation of that conclusion.

Discussion: Applicant, a police officer, claimed a specific industrial injury in the form of COVID-19, respiratory injury, and neurological injury, the date not included in the decision. After retaining counsel, applicant amended the claim to allege a CT injury from January 1, 2020, through November 19, 2022. Defendant initially accepted the specific injury for COVID-19 but denied the CT injury.

Per Internal medicine AME, Jeffrey A. Hirsch, M.D., Applicant contracted COVID-19 in February 2020, December 2020, and November 2022. The AME reported that the February 2020 infection was the most severe, resulting in chronic cough, shortness of breath, asthma-like symptoms, and temporary loss of taste and smell, the last of which resolved. The AME further said that applicant developed recurrent respiratory symptoms, headaches, weakness, diarrhea, and a second loss of taste and smell following the December 2020 infection, with that loss only partially resolving. Although applicant experienced a COVID-19 infection in November 2022, Dr. Hirsch opined that it was nonindustrial as caused by his wife’s COVID-19 infection and less severe and did not result in any permanent residuals. He also found applicant permanent and stationary.

The panel also concluded that the record was not sufficient to resolve defendant’s statute of limitations defense because the threshold issue of applicant’s date of injury was unknown. Additionally, the original claim form had not been admitted into evidence, and the record did not establish the dates necessary to determine when the limitations period commenced under §5405, including the relevant claim filing, indemnity paid, and medical treatment dates. Citing to State Comp.

Ins. Fund v. WCAB (Rodarte) (2004) 119 CA4th 998, 69 CCC 579, the panel observed that determining the date of a cumulative injury under §5412 requires resolution of both when the employee first sustained compensable disability and when the employee knew, or reasonably should have known, that the disability was industrially caused. The panel stressed that because the statute of limitations is an affirmative defense, in the present matter the defendant retained the burden of proving when the statutory period began to run.

The parties proceeded under the City of Los Angeles and Los Angeles Police Protective League workers’ compensation alternative dispute resolution (ADR) agreement. Following arbitration, the WCA found that applicant sustained industrial injury in the form of COVID-19, respiratory injury, and asthma, resulting from two CT injuries ending in February 2020 and December 2020, respectively, and that applicant’s COVID-19 respiratory condition and asthma were caused by the CT ending in February 2020. The arbitrator further ruled that there was no basis for apportionment and that applicant’s claims were not barred by the statute of limitations.

The commissioners concluded that the AME’s opinions did not constitute substantial medical evidence, with several issues requiring resolution. Although the AME had documented applicant’s three COVID-19 infections with resulting symptoms, he had not adequately analyzed whether those infections constituted separate specific injuries, CT injuries, or a combination of both. He also had not adequately addressed the effect of §§3208.2 and 5303 on the characterization of applicant’s injuries, the applicability of the COVID-19 presumptions to the December 2020 and November 2022 infections, or whether any PD should be apportioned among multiple injuries consistent with §4663 and Benson, supra.

Defendant petitioned for reconsideration, contending that substantial medical evidence did not support the WCA’s finding that applicant’s COVID-19 condition resulted from CT injuries. Defendant further contended that applicant’s claims were barred by the statute of limitations because the amended CT claim was filed outside the applicable limitations period.

Finally, the panel determined that Dr. Hirsch’s opinion that applicant’s November 2022 COVID-19 infection was nonindustrial was simply because applicant’s wife had tested positive for COVID-19 two days earlier. That conclusion lacked an adequate medical explanation, observing that COVID-19 latency periods and symptom presentation vary from person to person; relying solely on the timing of applicant’s wife’s positive test, without sufficient medical

The Board panel granted defendant’s petition for reconsideration, rescinded the arbitrator’s F&A, and returned the matter for further proceedings, concluding that the record required further development regarding the number and nature of applicant’s COVID-19 injuries, industrial causation, apportionment, and the statute of limitations.

Relying on Western Growers Ins. Co. v. WCAB (Austin) (1993) 10

reasoning, did not constitute substantial medical evidence supporting a finding of nonindustrial causation.

At a July 2025 trial, applicant provided substantially more detailed testimony regarding her retirement intentions and future employment plans, testifying that she misspoke at the deposition and had intended to continue working within the pharmaceutical field after leaving CVS; she was actively working toward renewal of her pharmacist’s license and was completing the educational requirements necessary to maintain her credentials. She testified that sometime during the spring of 2024, a fellow pharmacist had offered her employment, and she had declined that opportunity because her industrial shoulder condition prevented her from performing the work. She also testified that she continued searching for employment opportunities online and intended to return to pharmaceutical work once her physical condition improved. Defendant did not offer “clear and convincing” rebuttal evidence.

Takeaway: The antimerger statutes still have viability, according to this panel. Every date of injury must be taken on its own evidence.

While multiple injury claims are complex, this cannot be resolved by oversimplifying things. The fact that there is no clear discussion of whether a specific injury or CT or some combination occurred here causes problems, or any statute of limitations defense because time limits for a specific claim (§5405) are measured differently than a cumulative time limit measured by §5412’s definition of the CT date of injury.

Jacobowitz v. ProCare Pharmacy, LLC, dba CVS Specialty Pharmacy, Inc./Indemnity Ins. Co. of North America, ADJ19532643 (MDR), May 18, 2026, Order Denying Reconsideration

Defendant called no witnesses to contradict applicant’s testimony concerning her retirement intentions, future employment plans, or alleged job opportunity. When confronted with her deposition testimony, applicant acknowledged having testified that she intended to retire from the labor force. However, she explained that she may have misspoken during the deposition and clarified that her intent had been to retire from CVS rather than from employment altogether. She testified that she had not begun collecting Social Security retirement benefits and was supporting herself primarily through limited withdrawals from her retirement accounts.

Summary: A Board panel affirmed a trial judge’s award of temporary disability (TD) indemnity to an applicant who had retired from her job, as she had previously planned, shortly after sustaining an industrial injury. The panel concluded that substantial evidence supported the WCJ’s finding that applicant had retired only from her work for employer, not from the labor market as a whole. The panel further held that applicant had established her intention to remain in the market for other employment and that the trial judge had correctly calculated her TD indemnity rate based on her earnings at the time of injury, as there was no evidence of later employment. The panel rejected defendant’s argument that her postretirement earning capacity should be deemed to be zero because she had not yet returned to work after leaving the employer.

The WCJ found applicant credible and issued a findings and award (F&A) determining that applicant remained entitled to TD benefits beginning September 7, 2024, and continuing, subject to the limitations of Labor Code §4656(c)(2). The WCJ further determined that applicant’s TD rate remained $1,619.15 per week. Defendant petitioned for reconsideration.

Discussion: Applicant, a specialty pharmacist, claimed a January 4, 2024 industrial injury to her bilateral knees and right shoulder arising out of and in the course of employment (AOE/COE). Two weeks before the injury, applicant had submitted a written retirement notice to the employer, advising that her final day of employment would be January 12, 2024, and she subsequently retired from her job on that date.

The Board panel began their analysis by reviewing the legal principles governing TD benefits following retirement, explaining that TD indemnity is intended to replace wages lost during a period of temporary incapacity. Unlike permanent disability (PD) benefits, which compensate for diminished future earning capacity, TD benefits are designed to provide wage replacement while an injured worker remains temporarily unable to work.

Following the injury, defendant paid TD benefits from January 8 through 9, 2024, and applicant continued receiving medical treatment after retirement. On July 25, 2024, her primary treating physician (PTP) determined that she was temporarily totally disabled (TTD), and on that day, defendant resumed payment of temporary disability benefits and continued paying TTD through September 6, 2024.

Relying heavily on Gonzales v. WCAB (1998) 68 CA4th 843, 27 CWCR 4, 63 CCC 1477, the panel observed that retirement cases require an examination of the worker’s earning capacity. Under Gonzales, earning capacity includes three components: the ability to work, the willingness to work, and the opportunity to work. Retirement primarily affects the “willingness to work.” Consequently, the central factual question here is whether the worker retired from the labor market entirely or merely retired from a particular employer. If a worker retires from all employment and has no intention of working again, earning capacity may effectively become zero because the worker is no longer willing to participate in the labor market. Conversely, if the worker retires from one employer but intends to continue working elsewhere, temporary disability benefits may still be appropriate if the industrial injury interferes with those employment plans. Here, substantial evidence supported the WCJ’s finding that applicant remained willing to work.

Defendant took applicant’s deposition on September 9, 2024. During questioning, applicant testified that she no longer worked for CVS, did not intend to return to CVS, and retired because she wanted more time to travel and spend time with her grandchildren. Defense counsel specifically asked whether, when she decided to retire in December 2023, she intended to “completely retire from the labor force.”

Applicant answered “yes.” No further questions on the subject were asked by either side.

Three days later, relying primarily on applicant’s deposition responses, defendant gave notice of terminating TD benefits, taking the position that applicant had voluntarily withdrawn from the labor market and therefore no longer had any earning capacity that could support an award of TD indemnity. Applicant disputed the termination and filed a declaration of readiness to proceed (DOR).

Applicant testified that she intended to continue working within the pharmaceutical industry, was renewing her professional license, and 11

CAJPA 2026 CASE LAW UPDATE WORKERS’ COMPENSATION CASES – CONTINUED By: Brenna Hampton, Work Comp By Design had received a job offer after retirement, declining that opportunity because of her industrial injury. She also testified that she continued exploring employment opportunities and expected to return to work following treatment. In the panel’s view, her testimony demonstrated that applicant had not abandoned the labor market. Rather, the evidence showed that she intended to remain employed but believed her industrial condition prevented her from doing so.

vision, and sporadic heart rate. His self-tested heart rate was erratic.

A monitor in the ambulance confirmed atrial fibrillation. At the ER, this was further confirmed by an EKG. He was admitted, kept overnight, and evaluated by a cardiologist confirming the diagnosis of “new onset AFib, controlled ventricular response, questionable paroxysmal versus lone.” He continued seeing doctors on an outpatient basis and the diagnosis of atrial fibrillation was continued. He was told that his supervisor had put in the workers’ compensation paperwork while he was in the hospital. Over the next few months he was recommended to have an ablation, and continued light duties. The claim was denied by letter of 7/23/2024 based on “no substantial medical, legal or factual evidence to support a confirmed diagnosis for a heart condition under the presumption pursuant to LC 3212…” The denial indicated a pending appointment at Stanford and a pending request for a QME as grounds for development of the record. The claim was subsequently admitted in February 2025. This was 9 months after the injury date, 7 months after initial denial, 5 months after Applicant resubmitted his claim, and 3 months after the QME was received.

The panel reiterated the long-standing principle that a WCJ’s credibility determinations are entitled to great weight because the trial judge personally observes witness demeanor and testimony. Here, the panel saw no substantial evidence that would justify disturbing the WCJ’s credibility findings. The panel disagreed with defendant’s contention that the totality of the evidence demonstrated applicant intended to permanently retire from all gainful employment, seeing nothing in her testimony, retirement notice, or overall conduct inconsistent with the conclusion that she had intended only to leave CVS. The panel rejected the defense contention that applicant’s TD rate should be reduced to zero because she had no actual earnings after retirement, noting that §4453(c)(4) generally applies when ordinary wage calculations are impractical or fail to produce a fair result.

Here, however, applicant’s earnings at the time of injury were easily ascertainable. Applicant earned approximately $3,550.15 per week at the time of injury, resulting in a TD rate of $1,619.15 per week.

Defendant itself had previously paid TD benefits at that rate. The panel identified no basis for recalculating applicant’s earning capacity using a postretirement zero-income figure, particularly where the evidence demonstrated that applicant remained willing to work and that her industrial injury interfered with her ability to pursue employment opportunities.

The trial judge found Defendant unreasonably rejected liability for a heart-related injury presumptively covered under Labor Code section 3212. Defendant sought reconsideration, arguing that its obligations under the duty to investigate were not triggered until September 2024 when the Applicant submitted the claim on his own behalf. Defendant also argued that penalties should be mitigated because Applicant suffered no out of pocket losses during the denial period.

The WCAB denied the petition, upholding a $50,000 penalty for unreasonable denial of a claim. They took issue with Defendant’s argument because the Applicant was entitled to rely on his supervisor’s statement that the workers’ compensation paperwork had been done on his behalf at the time of his initial hospitalization. The Board also questioned Defendant’s statement that further discovery was needed because the heart issues fell within the presumption, there was no apportionment argument and discovery should have been limited to AOE/COE. Regarding the amount of the penalty, the Board noted that Defendant had paid 4850 time, but later converted it to PTO time without applicant’s knowledge or consent during the delay.

The panel disagreed with defendant’s argument that TD benefits should not continue beyond February 27, 2025, the date of the last treatment report commenting on applicant’s disability status, because no subsequent medical report specifically addressed applicant’s work status. After reviewing the medical record, the panel found no evidence establishing that applicant had returned to work, become permanent and stationary (P&S), or otherwise recovered sufficiently to end her temporary disability. A panel qualified medical evaluator (PQME) had reported that applicant was not yet P&S. Subsequent medical reporting continued to recommend surgical intervention after conservative treatment failed. Surgery had been approved and applicant testified that she intended to proceed once she selected a surgeon with whom she felt comfortable. Under those circumstances, the panel concluded that the record did not support terminating TD benefits. The panel noted that defendant remains free to seek termination of benefits through an appropriate petition should future circumstances demonstrate that TD has ended.

For reference: Labor Code section 5814.3(a) states: Notwithstanding Section 5814, when liability has been unreasonably rejected for claims of injury or illness as defined in Sections 3212 to 3213.2, inclusive, the amount of the penalty shall be five times the amount of the benefits unreasonably delayed due to the rejection of liability, but in no case shall the penalty exceed fifty thousand dollars ($50,000). The question of rejection and the reasonableness of the cause shall be determined by the appeals board in accordance with the facts.

Mosqueda v. Unemployment Ins. Appeals Board (UIAB), ADJ19292947 (SJO), Apr. 13, 2026, Order Denying Reconsideration

Vincent Diliberto v. City of Modesto, Athens Administrators, 2026 Cal. Wrk. Comp. P.D. LEXIS 193

Summary: A Board panel denied a cost petitioner’s reconsideration petition, leaving in place a trial judge’s ruling that a defendant’s late payment of a medical-legal bill, even though well outside the 60-day time limit, did not amount to bad faith because although the record showed a delay there was no evidence of an improper motive or intentional misconduct. The panel agreed with the judge that sanctions, attorney fees, and costs were not warranted on the facts.

Summary: This is a panel decision by the Workers’ Compensation Appeals Board concerning a dispute over penalties assessed under Labor Code section 5814.3 (SB 1127).

Discussion: The Parties stipulated Applicant was injured while working as a fire engineer for the City of Modesto. Applicant testified to multiple symptoms on 5/10/2024 including profuse sweating, spotty 12

Discussion: Panel qualified medical evaluator (QME) Robyn Pearl, Psy.D., submitted a medical-legal bill. As a “cost petitioner,” she claimed that defendant received the bill on December 16, 2024, but failed to issue payment or an explanation of review (EOR) within the 60-day timeframe required by Labor Code §4622. After the cost petitioner complained of nonpayment, defendant issued a March 12, 2025 payment, about 86 days after receiving the bill, but without then including any penalty or interest amount. Citing that delay, the cost petitioner pushed the issue forward and ultimately sought trial-level relief. The dispute wasn’t just about the delay, it was about how that delay should be measured and whether it constituted unreasonable or bad faith conduct.

nonpayment beyond 60 days or payment in a haphazard fashion might suggest a pattern of bad behavior worthy of penalties and sanctions.

These elements are not present here and the payment of more than $2,000 in penalties and interest on a medical-legal billing charge of almost $19,500 is sufficiently punitive.

Martin v. East Bay Regional Park District, ADJ15833920 (OAK), Feb. 13, 2026, Order Denying Reconsideration Summary: A divided Board panel denied a defendant’s petition for reconsideration and affirmed a finding of permanent and total disability (PTD). The decision provides significant guidance on rebuttal to the combined values chart (CVC), pursuant to the Board’s en banc decision in Vigil v. County of Kern (2024) 52 CWCR 113, 89 CCC 686, in the evaluation of neurological impairments, and on evidentiary sufficiency of medical opinions grounded largely in subjective symptomatology.

Defendant responded by issuing penalty and interest payments on April 2, 2026, following internal consultation with a supervisor and its legal department. At trial, defendant presented testimony explaining that the delay was the result of a handling issue, perhaps considering the bill as a duplicate and not an intentional effort to delay or avoid payment.

Discussion: Applicant, a park ranger, claimed a June 3, 2020, industrial injury involving her head, vision, psyche, brain and neuropsyche. The employer admitted injury to the head, vision, and psyche, but disputed injury to the brain and neuro-psyche as well as the extent of applicant’s permanent disability (PD).

Workers’ compensation judge (WCJ) Norma L. Acosta, considering defense testimony credible, concluded that while the payment was late, the conduct did not rise to the level of bad faith and ruled that the cost petitioner was entitled to nothing further: no attorney fees, no costs, and no sanctions. The doctor filed a petition for reconsideration.

Cost petitioner argued that (1) the WCJ had applied the wrong start date in calculating the 60-day deadline, from when the claims examiner reviewed the bill on March 11, 2025, rather than when the employer received it on December 12, 2024; (2) no substantial evidence supported a finding that the delay was reasonable, given the undisputed 86-day gap with no payment or EOR; and (3) defendant’s conduct should have been deemed bad faith, entitling the cost petitioner to attorney fees, costs, and sanctions under §5813 and WCAB Rules 10421 and 10786.

Following trial, the workers’ compensation judge (WCJ) ruled that applicant’s neurological, neuropsychological, and ophthalmological impairments rendered her PTD. Central to the WCJ’s analysis was the reporting of neurology qualified medical evaluator (QME) Barbara McQuinn, M.D., who assigned 22 percent whole person impairment (WPI) for headaches and 29 percent WPI for vertigo. The QME opined that the impairments should be added pursuant to Vigil because they affected different activities of daily living (ADLs). After rating, the WCJ concluded that neurological impairments alone added to 110 percent PD, rendering applicant PTD. Defendant’s reconsideration petition challenged three principal aspects of the WCJ’s decision. First, defendants argued that QME McQuinn’s reporting was based on applicant’s subjective self-reported symptoms rather than objective evidence. Second, they argued that QME McQuinn’s impairment ratings for post-traumatic headaches and posttraumatic vertigo should have been combined using the CVC rather than added. Finally, they contended that the applicant’s psychiatric injury was not ratable because it did not meet the statutory “catastrophic injury” exception under Labor Code §4660.1.

The Panel agreed with the trial judge who focused less on whether a deadline was missed and more on why it was missed, observing that §5813 and WCAB Rule 10421 link sanctions to conduct that is frivolous, intended to cause unnecessary delay, or reflecting an improper motive.

WCAB Rule 10786 similarly allows recovery of attorney fees and costs in medical-legal disputes, only where noncompliance is caused by bad faith actions or tactics. Here, after deciding its decision was timely, the panel agreed with the WCJ that the record showed delay, but not bad faith. The claims examiner addressed the penalty issue after internal consultation and ultimately issued the required penalty and interest on the day of a status conference on the issue. There was no indication that the delay was strategic, intentional, or designed to frustrate the claims process.

The Panel majority rejected the employer’s contention that the medical evidence was insubstantial because it relied heavily on subjective complaints. The majority reaffirmed that the AMA Guides do not prohibit impairment ratings based on credible subjective symptoms where objective findings are limited, so long as the physician conducts a thorough evaluation and explains the reasoning underlying the rating. The Board concluded that QME McQuinn’s analysis, grounded in clinical examinations, treatment history, and detailed assessment of ADLs constituted substantial medical evidence.

The panel also gave considerable weight to the WCJ’s credibility determinations. Because the WCJ had the opportunity to observe witness testimony firsthand and found the defendant’s explanation credible, those findings were entitled to deference by the panel, which found no evidence of considerable substantiality to justify disturbing the WCJ’s conclusions.

Relying on its en banc decision in Vigil, supra, the majority reiterated that the CVC may be rebutted where substantial medical evidence demonstrates either no overlap in ADLs between injured body parts or a synergistic effect that amplifies the impact on ADLs. The majority saw no ADL overlap in QME McQuinn’s reporting that (1) vertigo primarily impaired physical skills including balance, visuomotor skills, and

Takeaway: The case suggests that the bar to succeed in finding bad faith or intentional delay in a medical- legal dispute is set quite high. Negligence does not qualify. Rather, a pattern of delay and

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CAJPA 2026 CASE LAW UPDATE WORKERS’ COMPENSATION CASES – CONTINUED By: Brenna Hampton, Work Comp By Design physical tasks such as operating machinery or working at heights, while (2) headaches impaired mental tasks like concentration, reading, screen use, and tolerance for noise. The majority thus deemed the QME’s explanation met Vigil’s lack of overlap standard and emphasized that a successful rebuttal turns on functional impact rather than anatomical labels and on reasoned medical judgment, rather than mechanical application of the rating schedule.

The Internal medicine PQME Dr. Weber explicitly concluded that it is readily evident there is no overlap between the cardiovascular, skin, and orthopedic impairments in how they affect applicant’s ADLs. Consequently, he opined that utilizing the standard CVC method would inappropriately reduce the overall impairment, and adding the impairments leads to a more accurate result.

After trial, the WCJ awarded applicant 73% permanent disability. In the Opinion on Decision, the WCJ explained that she applied the CVC rather than adding the impairments. PQME Dr. Weber and PQME Dr. Sharma failed to rebut successfully the CVC under the Vigil standard because neither physician provided substantial evidence that applicant’s overlapping impairments synergistically amplified the impact on his ADLs. PQME Dr. Weber offered merely conclusory statements, asserting without detailed analysis that the cardiovascular and orthopedic systems inherently cause different ADL deficits. Conversely, while PQME Dr. Sharma accurately identified overlapping ADL limitations, specifically noting that the lumbar spine overlaps with the cervical spine and shoulder regarding lifting and carrying, and overlaps with the cardiac condition regarding walking and standing tolerance, he failed to adequately explain how these overlapping restrictions interact. His conclusion that the restrictions were “synergistic” was legally insufficient because, under Vigil, a physician must explicitly disclose the underlying basis for their conclusion and detail exactly how and why the synergism increases or amplifies the impact on the overlapping impairments, which both doctors failed to do.

Further, the majority observed that the neuropsychological agreed medical evaluator (AME) Jed Sussman, Ph.D., had opined that the additive method was correct. Therefore, even if the neurology impairments were combined rather than added, the applicant’s neurology impairment added to the neuropsychological impairment alone would reach 100 percent PD. Noting that the neurologic, neuropsychological, and ophthalmologic impairments resulted in PTD, the panel majority declined to address the defendant’s contention that Labor Code §4660.1 barred psychiatric impairment in this case.

Thomas v. California Department of Forestry, 2026 Cal. Wrk. Comp. P.D. LEXIS 191 Summary: This case is a WCAB panel decision involving a firefighter alleging cumulative injury resulting in multiple physical impairments.

The primary legal issue revolves around determining whether to apply the Combined Values Chart (CVC) or add impairments per Vigil for permanent disability assessment. Because the PQMEs both failed to provide a legally sufficient, non-conclusory analysis of applicant’s overlapping or non-overlapping ADLs, the current medical record cannot support a determination on whether to apply the CVC or add the impairments. Therefore, development of the medical record is required to obtain supplemental reporting from the evaluating physicians that specifically addresses the Vigil criteria with well-reasoned clinical explanations.

On Reconsideration, the Board noted that Dr. Weber improperly based the conclusion that there was no overlap between the PD for coronary artery disease and surgical scars entirely on the generalized premise that the cardiovascular and skeletal systems perform distinct bodily functions, rather than analyzing the specific daily activities applicant can or cannot perform. The Board further noted that Dr. Sharma’s opinion was insufficient under Vigil. Despite identifying these overlapping functional deficits, he summarily concluded that the restrictions are “synergistic” and “complementary but independent” without detailing the clinical mechanics of this interaction. He failed to explain how the interaction between the structural limitations of the spine and shoulder and the physiological exhaustion of the heart disease amplifies applicant’s overall disability beyond the combined rating.

Discussion: The workers’ compensation administrative law judge (WCJ) found that applicant sustained a cumulative injury arising out of and in the course of employment to his cervical spine, lumbar spine, bilateral shoulders, heart, scarring, and hearing loss while employed as a firefighter from January 1, 2002 to December 31, 2022; and that applicant sustained 73% permanent disability. Applicant wanted 100% based on QME reporting, which he contended supported adding of disabilities under the Vigil case to rebut the Permanent Disability Rating Schedule.

In his supplemental report dated October 17, 2025, PQME Dr. Sharma directly addresses the ADLs to evaluate potential overlap between applicant’s industrially related orthopedic disabilities and the cardiovascular impairments assessed by PQME Dr. Webber. PQME Dr. Sharma identified that the musculoskeletal impairments uniquely restrict structural mobility, such as reaching, lifting, carrying, bending, and spinal rotation, stemming from the physical toll of his firefighting duties. Applying the standard from Vigil, he cautions against double counting but determines the functional restrictions are “complementary but independent.” The orthopedic conditions limit structural movements while the cardiac condition limits physiologic endurance and exertion.

Finding that the mechanisms do not substantially overlap, he concluded the limitations are synergistic and not duplicative, justifying the addition of the impairments to reflect accurately the true overall disability.

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CIVIL RIGHTS CASES By: Noah G. Blechman, Esq., McNamara Law Firm Case v. Montana, 607 U.S. 107 (2026)

from this incident, per the Fourth Amendment. The District Court granted qualified immunity for Sgt. Zorn, but the Second Circuit reversed, holding that gratuitous use of a rear wrist lock on a passive protestor may be excessive. The Supreme Court reversed and granted qualified immunity, finding that a key Second Circuit case (Amnesty America) did not establish that using a routine wristlock to move a resistant protestor after warning her, without more, violates the Constitution. The majority confirmed the key tenets of qualified immunity that denying such immunity can only be based on a similar case that previously outlawed the behavior or a consensus of cases demonstrating that such force was potentially improper or gratuitous in this context. Three justices dissented.

Summary: The Supreme Court confirmed that the standard for a warrantless home entry to render potential emergency aid is objective reasonableness which was satisfied in this case.

Discussion: In this matter, Montana police officers responded to the home of Mr. Case (petitioner) after his ex-girlfriend called 911 to report that he was threatening suicide and may have shot himself. The responding officers knocked on the doors and yelled into an open window, but got no response. Officers could see an empty handgun holster and something that looked like a suicide note inside so they ultimately decided to enter the home to render potential emergency aid. When one officer approached a bedroom closet (where Case was hiding), Case threw open the closet curtain while hold-ing an object that looked like a gun. Fearing that he was about to be shot, the officer shot and injured Case. An ambulance arrived and transported Case to the hospital. Officers found a handgun next to where Case had stood. Case was charged with assaulting a police officer. In the criminal case, Case moved to suppress all evidence obtained from the home entry, arguing that the police violated the Fourth Amendment by entering without a warrant. The trial court denied the motion, and a jury found Case guilty. A divided Montana Supreme Court upheld the officers’ entry as lawful under Montana’s caretaker doctrine, rejecting the contention that an officer must have probable cause to believe that an occupant needs emergency aid. The Supreme Court then ruled and further clarified that the standard for entry for potential emergency aid is not reasonable suspicion or probable cause, but rather whether an officer had an objectively reasonable basis for believing the entry was needed to prevent or deal with serious harm, such as when there is a reasonable believe that an occupant is seriously injured or imminently threatened with such injury. Here, the entry was objectively reasonable to investigate if Case may have already shot himself or do so absent intervention, affirming the judgment of the Montana Supreme Court, although not all of that court’s reasoning.

Estate of Hernandez v. City of Los Angeles, 139 F.4th 790 (9th Cir. 2025) (en banc) Summary: Supreme Court denied certiorari in case where en banc Ninth Circuit affirmed in part and reversed in part the district court’s summary judgment in a matter involving claimed unlawful use of deadly force by Ofc. McBride.

Discussion: The Ninth Circuit found that there was a triable factual issue as to whether Ofc. McBride used excessive deadly force per the Fourth Amendment when she shot at Hernandez the last two times (third volley), the final round killing him, after he ignored her repeated commands to stop moving toward her and drop a suspected knife which turned out to be a box cutter. Although the shooting incident occurred over just six seconds, with Ofc. McBride firing three distinct volleys of two shots, pausing after each, shots five and six were after Hernandez had collapsed on the ground and was on his back with his knees curled up, rolling away from her, so the court denied qualified immunity as to the third volley (and reversed and remanded as to the related state claims). The Ninth Circuit confirmed that the first four shots (first two volleys) were objectively reasonable per the Fourth Amendment.

Unfortunately, based on this opinion the law in the Ninth Circuit now almost demands superhuman judgment by officers in split second and rapidly dynamic encounters.

Zorn v. Linton, 607 U.S. ___ (2026)

Estate of Soakai, et al. v. Abdelaziz, et al, 137 F.4th 969 (9th Cir. 2025)

Summary: During a protest in January of 2015, Sgt. Zorn ordered Ms. Linton to stand up or he would have to use force. She did not comply so he put her arm behind her back, put pressure on her wrist and lifted her to her feet. She later sued for excessive force per the Fourth Amendment.

The Supreme Court found Sgt. Zorn was entitled to qualified immunity for his actions.

Summary: The Ninth Circuit affirmed the district court’s denial of defendant police officers’ motion for judgment on the pleadings based on qualified immunity in a § 1983 action brought by innocent bystanders, who were injured by a fleeing suspect who lost control of his car and crashed into them as a result of a high-speed car chase.

Discussion: On January 8, 2015, in Vermont, during the inauguration for Governor, protestors attended and some staged a sit-in to demand universal healthcare, including Ms. Linton. After the capitol closed, some protesters remained, including Ms. Linton. Officers explained to the remaining protestors that they would be arrested if they did not leave. Some were escorted out without force, others remained seated, including Ms. Linton, who remained passively resisting with interlocked arms with other protestors. Sgt. Zorn tried to speak with her to coax her out, but she refused, so he unlinked her arm, put it behind her back in a rear wristlock and twisted her arm while he ordered her to stand up.

She refused so Sgt. Zorn used more pain compliance on her wrist and lifted her up to stand up, but then she continued to jerk and fell back on the floor. Several officers then picked her up and carried her outside.

Ms. Linton claimed physical and psychological injuries, including PTSD,

Discussion: Plaintiffs alleged that defendants violated their Fourteenth Amendment substantive due process rights by: (1) conducting a highspeed chase for the purpose of harming the fleeing suspect in a manner that exceeded any legitimate law enforcement purpose; and (2) failing to summon or render emergency services for plaintiffs after the crash that defendants affirmatively helped to cause. The Ninth Circuit found that Plaintiffs plausibly stated a substantive due process claim by demonstrating that officers conducted the high-speed chase with a purpose to harm the suspect that exceeded legitimate law enforcement purposes. The Ninth Circuit precedent recognizes that an officer owes a duty to all those in the vicinity, including bystanders, to limit their intent to harm to legitimate law enforcement purposes. The Ninth Circuit also found a sufficiently pled state created danger claim when officers failed to timely summon medical help after the crash.

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CAJPA 2026 CASE LAW UPDATE CIVIL RIGHTS CASES – CONTINUED By: Noah G. Blechman, Esq., McNamara Law Firm Discussion: After Lopez was apprehended following a foot pursuit, officers applied a RIPP restraint connecting his ankle restraint to his handcuffed wrists. According to the evidence viewed in the plaintiff’s favor, the restraint placed Lopez in an effectively hogtied position.

Although Lopez had ceased resisting and no longer presented a threat or flight risk, officers kept him prone, placed him face down across the rear seat of a police vehicle, and transported him without modifying the restraint or repositioning him. Lopez, who had exhibited signs of respiratory and medical distress, was subsequently found unresponsive and pronounced dead. The Court held that a reasonable jury could find the officers used excessive force. The RIPP restraint, prone positioning, and pressure on Lopez’s chest allegedly created a substantial risk of positional asphyxia and therefore constituted significant, potentially lethal force. Against that intrusion, the governmental interest was minimal because Lopez was subdued, unarmed, surrounded by officers, and no longer resisting or attempting to escape. The Court further reasoned that the asserted constitutional violation was clearly established. Relying principally on Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003), and related restraint cases, the Court held that existing precedent provided fair warning that officers may not continue the force after an arrestee has surrendered and become helpless. Notably, the officers’ training prohibited hogtying and required RIPP restrained individuals to be placed in an upright position and monitored, which reinforced that notice. The Court also rejected the argument that the two transporting officers’ conduct should be isolated from the restraint imposed by the other officers. Under the totality of the circumstances, the transporting officers assumed responsibility for Lopez’s safety and allegedly continued the dangerous restraint by transporting him face down despite his apparent medical distress.

Fuhr v. City of Seattle, 175 F.4th 1081 (9th Cir. 2026) Summary: The Ninth Circuit affirmed summary judgment in an action arising from the fatal shooting of Shaun Fuhr. The Court did not decide whether the shooting actually violated the Fourth Amendment.

It held only that, as of April 2020 (the date of the incident), no sufficiently similar precedent clearly established that deadly force was unconstitutional under this particular combination of circumstances: a fleeing and noncompliant suspect who had recently fired a gun, was believed to be armed, and was carrying an infant whom officers reasonably perceived to be in immediate danger. Fuhr’s estate and family alleged, among other claims, that Ofc. Zech used excessive force in violation of the Fourth Amendment. The district court granted summary judgment to the defendants.

Discussion: Officers pursued Fuhr after receiving reports that he had threatened his child’s mother, fired a handgun in a public park, and fled with his one-year-old daughter. During the approximately 38 minute pursuit, Fuhr repeatedly disregarded commands to stop.

Officer Zech later encountered him in a confined residential alley. Fuhr emerged from behind bushes and moved toward the officers while holding his daughter against his chest. Believing that Fuhr remained armed and presented an immediate danger to the child, Ofc. Zech fired one shot in less than two seconds after observing Fuhr. Fuhr was killed; the child was unharmed. Fuhr was not carrying the firearm when he was shot, although police recovered it nearby. The Court framed the clearly established right narrowly, emphasizing the complete factual background confronting Ofc. Zech rather than the general rule that police may not use deadly force against a person who poses no immediate threat. The Court essentially considered that Fuhr had allegedly fired a gun, fled with the child, ignored repeated commands, handled the child dangerously, and unexpectedly advanced toward officers. There were no earlier cases involving a similarly non-compliant, potentially armed fugitive carrying a child, so the Court concluded that existing law did not give Ofc. Zech sufficiently specific notice that using deadly force in this situation was unlawful. Notably, under these circumstances, a reasonable officer would perceive an ongoing and immediate danger to the child, even though Ofc. Zech did not see a weapon when he discharged his duty firearm. This decision is further support that a court may consider the suspect’s conduct throughout the unfolding rapid encounter as material to the perceived threat at the moment the officer used the force.

King v. Villegas, 156 F.4th 979 (9th Cir. 2025) (*Opinion vacated April 3, 2026, and ordered to be reheard) Summary: The Ninth Circuit reversed the district court’s dismissal of a state prisoner’s § 1983 suit and remanded for further proceedings saying that the Plaintiff’s suit was not barred by Heck v. Humphrey, 512 U.S. 477 (1994). The Court held that the Plaintiff’s nolo contendere plea should not have been used to show that he committed the charged crime under Fed. R. Evid. 410(a). However, this opinion was vacated and the case been ordered to be reheard.

Discussion: Plaintiff is a prisoner in Kern Valley State Prison (KVSP).

He and two correctional officers got into a physical altercation.

Shortly after, he brought suit under 42 U.S.C. § 1983 against the officers alleging excessive force against him in violation of the Eighth Amendment. A year after the incident, and several months after filing suit, prosecutors charged him with felony battery by a state prisoner on a non-confined person. Two years after the charges were brought, he plead nolo contendere to one count of obstructing or resisting an executive officer and the battery charge was dismissed. Ultimately, the civil case was dismissed on a motion for judgment on the pleadings with the rationale being that the excessive force claim was Heck barred and that the district court could consider evidence of the nolo plea as an admission. In Heck v. Humphrey, 512 U.S. 477, 487 (1994), the Supreme Court held that a state prisoner’s §1983 suit for damages cannot proceed if “judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” On appeal to the Ninth Circuit, the Court ruled on the question of whether Fed. R. Evid.

Gonzalez v City of Phoenix, 163 F.4th 1289 (9th Cir. 2026) Summary: The Ninth Circuit affirmed the district court’s denial of qualified immunity to six Phoenix police officers arising from the death of Ramon Timothy Lopez. The Court held that, when the evidence is viewed in the plaintiff’s favor, a jury could find that the officers used excessive force by placing and transporting Lopez face down in an improperly shortened RIPP restraint (effectively a hogtie) after he was subdued, helpless, and showing signs of medical distress. Lopez became unresponsive and later died. His mother brought federal excessive force and related claims. The Court did not determine that the officers were ultimately liable or that their conduct caused Lopez’s death; those matters remained for later proceedings.

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Jones v. City of North Las Vegas, 168 F.4th 1131 (9th Cir. 2026) (currently on petition for Cert to U.S. Supreme Court)

410(a) precludes admission of a prior nolo plea into evidence in a Heck suit. Rule 410(a) prohibits evidence of a nolo plea to be used as admissible against a criminal defendant or civil plaintiff. It is first and foremost not an admission of guilt. The Court held that Rule 410(a) bars admission of a nolo plea to show that the Plaintiff in a §1983 suit committed the crimes to which they pleaded nolo contendere.

Under Rule 410(a), neither the plea nor statements he made at the plea colloquy should have been admitted against him in his civil case.

Caution: This case was ordered to be reheard en banc pursuant to Rule of Appellate Procedure 40(c) and Circuit Rule 40-3. The three-judge panel opinion was vacated on April 3, 2026. The eventual outcome of this case could have significant implications on Heck bar matter.

Summary: In an amended opinion superseding its 2025 decision, the Ninth Circuit affirmed in part and reversed in part summary judgment for the City of North Las Vegas and two of its officers, and denied rehearing en banc over a dissent by Judge Collins joined by seven other judges. The panel reversed qualified immunity on the warrantless search claim, holding the "hot pursuit" exception inapplicable because the continuity of the pursuit was definitively broken when officers lost the fleeing suspect's trail for at least eighteen minutes before searching Plaintiffs' walled backyard. The panel affirmed qualified immunity for the canine handler on the shooting of Plaintiffs' two dogs and affirmed summary judgment on the Monell claims, and reversed the dismissal of the state law claim, which the district court had declined to hear solely because it had disposed of all federal claims.

Cheairs v. City of Seattle, 145 F.4th 1233 (9th Cir. 2025) Summary: The Ninth Circuit affirmed the district court’s summary judgment for the Defendants in a 42 U.S.C. § 1983 action brought

by Plaintiff. Plaintiff alleged that an officer used excessive force and retaliated against him in violation of the Fourth and First Amendments when the officer threw a blast ball diversionary device toward a crowd during a protest dispersal. The Plaintiff, who was filming the protest, was injured as a result. The Court found that even though a reasonable fact finder could find that Plaintiff was seized, the Defendant officer’s use of force was reasonable and not excessive. Further, Plaintiff failed to establish a viable First Amendment claim because he did not raise a material question as to whether his filming of the protest was a motivating factor in the Defendant officer’s use of force against him nor was he able to establish a viable Monell claim.

Discussion: Officers Minelli and Rose responded to a reported domestic battery at a North Las Vegas cul-de-sac. Rose saw a man, later identified as a suspect with an active domestic battery warrant and an extensive violent criminal history, flee over the rear wall into a neighboring yard. Rather than follow on foot, Rose drove two streets south to cut him off and never regained sight of him. Responding units set a multiple-block perimeter. Roughly eighteen minutes later, Lt. Salkoff arrived with canine Storm and began searching inside yards. Storm alerted toward Plaintiffs' walled backyard, four houses from where the suspect vanished. The gate was locked and posted with a "Beware of Dog" sign, no one answered the door, and officers whistled and shook the gate without detecting any animals. Lt. Salkoff climbed the sixfoot wall and dropped in without a warrant or consent and Ofc. Rose passed Storm over after him. Three pit bulls emerged, two attacked Ofc. Storm and Lt. Salkoff shot and killed both. The suspect was never found.

Applying Newman v. Underhill (9th Cir. 2025), the panel held the officers knew only that the suspect was somewhere in the neighborhood, a theory it warned would swallow the warrant requirement, and that United States v. Johnson (9th Cir. 2001) (en banc) clearly established the rule by 2019. The panel accepted that the officers acted with sufficient immediacy; the loss was on continuity alone. On amendment, the panel assumed that Storm's alert supplied probable cause, but held there was no hot pursuit left to salvage, restated Johnson as requiring termination "definitively" rather than "permanently," and added a footnote treating the misdemeanor nature of the offense as weighing against exigency. Judge Collins, joined by seven judges, dissented from the denial of rehearing en banc, arguing that Johnson never addressed whether a temporarily lost trail can be recovered, that the panel altered its quotation of Johnson to fit the facts, and that the new footnote cannot be squared with Lange v. California or Stanton v. Sims, where the Supreme Court summarily reversed the Ninth Circuit for the same over-reading. This has potentially for certiorari due to potential conflict with the Supreme Court. Note also that the qualified immunity win on the dogs does not end exposure, since the panel expressly noted the officers may still owe damages for the animals as a proximate consequence of the unlawful entry.

Discussion: Plaintiff was involved in a protest of the killing of George Floyd in June of 2020. During the protest, a crowd gathered and the situation had escalated where the police had to issue dispersal orders. Plaintiff remained in the crowd and was filming the interaction between the police and the crowd. Defendant officer threw a blast ball toward the crowd, and it hit the sidewalk and bounced and exploded near Plaintiff’s groin, causing injury. A blast ball is a non-lethal crowd control device. In his suit, Plaintiff alleged Fourth and First Amendment violations, as well as a Monell claim. The district court granted Defendants’ motion for summary judgment, holding that Defendant officer’s use of force did not constitute a seizure and that Plaintiff’s Fourth Amendment rights were not violated. It also held that Plaintiff’s First Amendment rights were not violated because he did not show that the police used force in retaliation for engaging in protected First Amendment activity. Finally, the district court held that Plaintiff had no colorable Monell claim. The Ninth Circuit affirmed the district court’s ruling, but held that a reasonable fact finder could find that Plaintiff was seized, though the Defendant officer’s use of force was reasonable under the circumstances. After analyzing the Graham factors (1. The severity of the crime, 2. Whether the suspect posed an immediate threat to the safety of the officers or others, 3. Whether the suspect was actively resisting arrest or attempting to evade arrest by flight), the Court held that it was reasonable for the police to perceive the protesters, near where the Plaintiff stood, were a threat. The Court also held that Plaintiff could not establish a First Amendment retaliation claim mainly because the protected activity (i.e. his filming of the protest) was not a substantial or motivating factor in the Defendant officer’s conduct.

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CAJPA 2026 CASE LAW UPDATE CIVIL RIGHTS CASES – CONTINUED By: Noah G. Blechman, Esq., McNamara Law Firm Estate of Esche v. Bunuel-Jordana, 152 F.4th 1185 (9th Cir. 2025)

charge and feeding him a story that exculpated him in exchange for naming Plaintiff as the shooter, and that they knew or should have known the witness was not telling the truth. The panel held the law was clearly established in 1990, and separately held it was not reasonably arguable that the inspectors had probable cause to charge Plaintiff with first-degree murder once the coerced statement is set aside. Judge Miller dissented, arguing that no 1990 authority put the inspectors on notice as to either claim.

Summary: The Ninth Circuit dismissed consolidated interlocutory appeals for lack of jurisdiction, holding that a district court's denial of a private state actor's good-faith defense to § 1983 liability is not immediately appealable under the collateral order doctrine. The panel held that under circuit precedent, the good-faith defense available to private § 1983 defendants is a defense to liability rather than an immunity from suit, so an erroneous denial can be effectively reviewed on appeal from final judgment and the third Cohen condition is not satisfied. Because no independently reviewable issue was properly before it, the panel also dismissed Plaintiffs' cross-appeal of their summary judgment losses for lack of pendent appellate jurisdiction. The panel did not reach the merits, but signaled in dicta that the underlying conduct raises troubling questions.

Discussion: Felix Bastarrica was shot in a San Francisco alleyway in March 1990. Eyewitnesses described the shooter as dark-skinned, in his late thirties, roughly 5'10" and 190 pounds, in a distinctive olivegreen trench-style coat. Inspectors Crowley and Gerrans developed Joaquin Ciria as their only suspect based largely on community rumor of a falling out over drug dealing. Neither eyewitness identified him from a photo array, there was no physical evidence and no one placed him near the scene. Ciria interviewed voluntarily with counsel, denied involvement, and gave a detailed alibi the inspectors did not check until after charging him. Investigators also never investigated a man identified to them as spreading the rumors, who matched the descriptions and was later named as the actual shooter. The case turned on the interrogation of George Varela, an eighteen-yearold with a juvenile record who initially corroborated the alibi. The inspectors explained accomplice liability, told him eyewitnesses had seen the driver, and stressed he did not want to be charged as an adult. Varela answered "Hey, whatever you said," was never given Miranda warnings, then gave an account beginning "Okay, just like you said." He was the star witness at trial under a grant of immunity; Ciria was convicted in 1991 and found factually innocent by the District Attorney's Innocence Commission in 2022. The Court's analysis is shaped throughout by Johnson v. Jones, repeatedly refusing the defense arguments as improper challenges to the district court's evidencesufficiency findings. On the merits, it applied Devereaux and found the case controlled by Gantt, rejecting the argument that tactics lawful under Fifth Amendment voluntariness standards insulate officers, since whether the witness's own rights were violated is separate from whether officers should have known the tactics would yield false information about the accused. On malicious prosecution, the Court found no reasonably arguable probable cause, noting the inspectors relied exclusively on Varela's statement in the warrant affidavit. Judge Miller dissented on generality grounds under al-Kidd and Wesby, contending that no 1990 authority put the inspectors on notice as to either claim.

The takeaway is that an interlocutory qualified immunity appeal is narrow, and the fight is really won or lost on the summary judgment record below.

Discussion: Jill Esche, seven months pregnant, was admitted to Renown Regional Medical Center with severe hypertension and erratic behavior. A hospital psychiatrist petitioned a Nevada court for involuntary admission under Nev. Rev. Stat. ch. 433A. While the petition was pending, staff repeatedly declared Esche not medically cleared to appear at her commitment hearing, kept her hospitalized, and administered psychiatric drugs over her objection. Her records show staff confined her to one room, restricted her phone use, barred visitors, never told her a public defender had been appointed, and instructed her not to raise her desire for a lawyer with family. Two days after a C-section delivery, staff decided to withdraw the petition, but had not yet done so; Esche left against medical advice and was found dead on a nearby porch within hours. The district court found the hospital had complied with the statutory scheme, but held the good-faith defense inapplicable because the hospital was neither required by law nor directed by a public official to hold her. The Court dismissed both the defense appeal and the cross-appeal. Addressing only the third Cohen requirement, it held that several cases(Clement, Danielson, and Allen) all treat good faith as a defense to liability, so the interest asserted was the ordinary one in limiting exposure, fully vindicable after final judgment. The Court rejected the effort to recast the defense as qualified immunity by another name, noting that under Wyatt and Richardson, private parties are generally ineligible for qualified immunity, while preserving the Filarsky exception for private parties hired by the government, which was neither asserted nor supported here. The practical effect is a one-way ratchet for entities relying on private hospitals to carry out statutory holds: a public official denied qualified immunity appeals immediately, while a private state actor denied the good-faith defense must try the case. Footnote 7 is also a merits warning shot, doubting the Nevada scheme authorizes involuntary treatment without judicial or neutral administrative process.

Ciria v. Gerrans, 178 F.4th 491 (9th Cir. 2026) Summary: On interlocutory appeal, the Ninth Circuit affirmed the district court's denial of qualified immunity to two San Francisco Police Department homicide inspectors on fabrication-of-evidence and malicious prosecution claims under § 1983, brought by a plaintiff who was exonerated after serving thirty-two years for a 1990 murder.

Taking as given the facts the district court assumed, the panel held that a reasonable jury could find the inspectors fabricated evidence by threatening an eighteen-year-old witness with an adult murder 18

TORT, DANGEROUS CONDITION, IMMUNITIES CASES By: Maria Nozzolino, Allen, Glaessner, Hazelwood Werth Pagan v. City of San Rafael (2026) 119 Cal.App.5th 853

roadway was wet, knew they had to exercise caution when driving in the rain, were familiar with the location and the roadway was otherwise relatively smooth. The Court further agreed with the City’s objections to the declaration of plaintiff’s retained expert finding the declaration was devoid of personal knowledge, contained multiple levels of hearsay, lacked foundation, and was based on speculation and conjecture.

Specifically, the Court admonished the deficient declaration for referencing documents without attaching them as evidence before the Court.

Summary: In January 2018, two 16-year-old girls were involved in a motor vehicle accident on a rainy day while driving on Lincoln Avenue in San Rafael, California. Lesly Velasquez was driving on Lincoln Avenue when the car hydroplaned as she approached a turn.

She lost control of the car, and the car went down the adjacent hillside, injuring her passenger, Kaylin Pagan. Pagan’s guardian ad litem sued for personal injuries against several defendants including the City of San Rafael. She alleged dangerous condition of public property against the City. The City moved for summary judgment, which was granted, and the plaintiff appealed. The Court of Appeal affirmed the trial court’s judgment finding plaintiff could not defeat summary judgment by relying on a new legal theory which was not pleaded in the complaint, and further finding the declaration of plaintiff’s expert offered in support of the opposition had multiple evidentiary deficiencies.

Yan v. City of Diamond Bar (2026) 119 Cal.App.5th 21 Summary: A pedestrian was injured when a tree limb fell on him from a City-owned Bradford pear tree. The evidence at trial was that the tree whose branch fell on the pedestrian had failed twice before, and other Bradford pear trees in the same neighborhood had failed nine more times in the preceding five years. Following a jury verdict for the plaintiff on a dangerous condition of public property claim, the City appealed on evidentiary grounds, challenging admission of (1) the other Bradford pear trees’ prior failures, and (2) a neighbor’s lay testimony reporting those failures. The Court of Appeal affirmed, holding the evidence was properly admitted on the issue of constructive notice.

Discussion: On a rainy day in January 2018, 16-year-old Lesly Velasquez was driving with a provisional drivers’ license on Lincoln Avenue in San Rafael with her friend Kaylin Pagan, also a minor, as a passenger. Lesly was familiar with the roadway and aware that roadways may be slippery when wet. Lesly was driving 30-40 miles per hour on Lincoln Avenue which has a speed limit of 30 miles per hour.

When she approached a curve in the roadway, the car hydroplaned and Lesly oversteered and lost control of the car. The car went off the roadway and down the hillside. Kaylin was injured as a result of the accident and her guardian ad litem sued Lesly and her father, the City, County of Marin and State of California. As against the City, the second amended complaint alleged dangerous condition of public property because the roadway did not have warning signs or barriers. Notably, the SAC did not allege facts regarding any physical deficiency in the roadway itself (such as a deteriorated surface, cracks, etc.)

Discussion: The City did not dispute the sufficiency of the evidence supporting the verdict, only the trial court’s evidentiary rulings. First, the Court held that evidence of branch failures involving other Bradford pear trees nearby was properly admitted to show notice. Because the evidence went only to notice, not to whether the specific tree (whose limb fell on the plaintiff) was dangerous, the test was simply whether the prior incidents were similar enough to have alerted the City to the problem. The Court reasoned that all the trees were the same species with an inherent, latent structural weakness, located in the same neighborhood, subject to the same maintenance schedule, and exposed to similar environmental conditions, such that repeated failures across the group logically bore on whether the City should have recognized a common problem. The Court rejected the City’s arguments that (1) individual trees vary too much to compare (Court held that no evidence supported this), (2) the rule for isolated sidewalk defects should apply (Court held it did not, since trees of the same species share commonalities that sidewalks lack), (3) Plaintiff’s complaint limited the case to the one tree (the complaint also alleged a broader failure to inspect/maintain City trees), and (4) the evidence was more prejudicial than probative (the Court held that the jury was properly instructed to consider it only on notice, and the City chose not to put on evidence of dissimilarities).

The City moved for summary judgment on the grounds the identified dangerous condition (the roadway being slippery when wet) was open and obvious. The trial court granted the City’s motion, and plaintiff appealed.

The Court of Appeal found summary judgment was properly granted by the trial court. In reviewing Government Code section 835 and controlling case law on dangerous condition, the Court stated that the plaintiff must “specify in what manner the condition constituted a dangerous condition.” Citing to Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347-1348. Plaintiff’s opposition argued there was a disputed fact as to whether the roadway was defective, because of deterioration, ruts and cracks, which was supported by the declaration of Plaintiff’s retained expert. However, the Court found that the second amended complaint did not allege that the roadway had any such physical defects, but rather the complaint only alleged that the City failed to warn that the roadway was dangerous when wet and/or failed to provide barriers. Because the condition was open and obvious, the Court found it could not be a dangerous condition under Government Code section 835. The Court rejected Plaintiff’s argument that the roadway created a “concealed trap” because the alleged danger of hydroplaning when the roadway is wet would be reasonably apparent to and anticipated by a person exercising due care. Plaintiff presented no evidence of a concealed trap for a person operating a vehicle using due care as the Court found the plaintiffs were aware the

The Court also upheld admission of testimony from a neighborhood resident, Robert Ludowitz, who had reported several prior branch failures to the City. The City raised two objections on appeal to admission of this evidence. First the City argued that Ludowitz was not qualified to opine on why the other trees’ branches had fallen, since he was not an arborist and had no training in tree care. The Court rejected this argument because it was the City that elicited Ludowitz’s opinion on causation during cross-examination, and the City could not complain on appeal about testimony it chose to elicit at trial. Second, the City argued that because Ludowitz had not personally witnessed any of the branches falling and had only seen the limbs after they were already on the ground, the evidence was inadmissible. The court 19

CAJPA 2026 CASE LAW UPDATE TORT, DANGEROUS CONDITION, IMMUNITIES CASES – CONTINUED By: Maria Nozzolino, Allen, Glaessner, Hazelwood Werth rejected this argument as well. The Court held that Ludowitz’s testimony was admitted, again, solely on the issue of notice, and what mattered was simply that he had told City employees about downed limbs, not whether he had watched them fall or could explain why they fell. The Court reasoned that no special training or expertise is needed to see a fallen limb and report it, or to infer that a limb lying at the base of a tree came from that tree. The Court further explained that accepting the City’s position would mean that a citizen’s complaint could establish notice only if the citizen happened to be watching at the exact moment a branch fell, or happened to have professional expertise, a rule that would make it impossible to prove notice and would effectively immunize public entities from liability.

However, the trial court granted summary judgment based on the exculpatory provisions of the user agreement, finding them enforceable and not against public policy. Judgment was entered for the City, and Plaintiff appealed. The California Court of Appeal, Second Appellate District, affirmed the judgment, but on a different ground. The Appellate Court held that the City lacked actual or constructive notice of the alleged dangerous condition. The Court found that Plaintiff failed to raise a triable issue of material fact regarding notice, as the evidence he submitted ( the Google Street image screenshot) was inadmissible and not properly authenticated. The Court also clarified that serving amended interrogatory responses does not itself create a triable issue of fact sufficient enough to defeat summary judgment.

Sargenti v. Long Beach (2026) 120 Cal.App.5th 702

Agustin v. Golden Empire Transit District (2025) 116 Cal. App.5th 426

Summary: An electric scooter rider sued the City of Long Beach alleging the City created or negligently maintained a dangerous condition, namely, “a sidewalk uplift” caused by having an asphalt patch on the sidewalk, that caused him to fall off his scooter and suffer injuries. The City moved for summary judgment on several grounds, and the trial court granted the motion on the grounds that the plaintiff had signed a document that waived and released his claims against the City.

The plaintiff appealed. The Court of Appeal upheld summary judgment on a different ground finding the City did not have actual or constructive notice of the alleged dangerous condition.

Summary: While riding a public bus in Bakersfield, California, Plaintiff fell inside the bus and claimed that the bus operator was negligent while making a reckless driving maneuver. Plaintiff sought to hold the Golden Empire Transit District (“District”) vicariously liable for the operator’s alleged negligence. The trial court granted the District’s motion for summary judgement based on undisputed videotape evidence of the inside of the bus showing that the bus was moving in an ordinary manner, and that the Plaintiff was not holding onto any pole or stanchion but simply lost her balance and fell. On appeal, Plaintiff argued that under California Civil Code Section 2100, the common carrier had a heightened duty of care to passengers to do “all that human care, vigilance and foresight reasonably can do under the circumstances“ to avoid harm. The Fifth Circuit Court of Appeal affirmed summary judgment. It held that, even under the heightened standard of care for common carriers, the videotape evidence showing the actual fall inside the bus, was sufficient to meet the District’s burden of making a prime facie showing that Plaintiff could not establish a necessary element of her claim.

Discussion: One evening in January 2020, Plaintiff was riding an electric scooter he rented from a company that facilitates dockless bicycle and scooter rentals in metropolitan areas through a webbased application. He was with two friends. Plaintiff and one of his companions were riding on the sidewalk, except when they crossed a street; the other was “weaving in and out and jumping curbs.” While attempting to move from the sidewalk to a bicycle lane in the street, Plaintiff, who had consumed one and a half beers earlier that day, hit “a blunt flat edge” of an asphalt patch “located over a portion of the driveway section of the sidewalk,” fell from the scooter, and suffered injuries. Plaintiff had registered for the scooter rental service by accepting a user agreement, which included exculpatory provisions releasing the rental company and municipalities, including the City, from liability for injuries. He brought a negligence action against the City and an adjacent property owner, alleging that they negligently created or maintained a dangerous sidewalk condition and had actual or constructive notice of the sidewalk’s alleged dangerous condition.

Discussion: Plaintiff alleged that the bus operator was negligent because he operated the bus in a reckless and unsafe manner, speeding and abruptly stopping. In opposing the City’s summary judgment motion, Plaintiff provided an expert declaration from an expert in bus transportation safety, who opined that when a bus makes a turn, it increases the risk of passengers who are standing to lose their balance and fall down, and that the bus operator should have given notice to standing passengers to prepare for such a movement by either sitting down or holding on to a pole or stanchion. In other words, the expert declaration tried to establish a triable issue of fact on breach and causation. At the hearing on summary judgment, Plaintiff argued that the bus driver was required to: (1) check the mirrors to determine whether any passengers were standing before moving and (2) advise standing passengers to sit down if seats were available or to hold onto a pole, railing or the like.

The City’s motion for summary judgment asserted three grounds for dismissal: improper use of the scooter, lack of notice of the condition, and the waiver and release in the user agreement. The trial court denied summary judgment on the first two grounds, reasoning that there were factual disputes regarding Plaintiff’s use of the scooter and whether the City had constructive notice of the condition. Specifically, as to constructive notice, the trial court found Plaintiff created a triable issue of material fact because his attorney submitted “a screen shot of a Google Maps image purportedly depicting the subject driveway in March of 2015,” five years before the accident. In overruling the City's objections to the Google Maps image, the trial court cited Sweetwater Union High School Dist. v. Gilbane Building Co., 2019) 6 Cal.5th 931, stating that, “trial counsel can cure the foundational defects at trial.”

Notwithstanding some of the ambiguous pleadings, the Appellate Court found that the central claim was whether the bus operator drove in a negligent manner, and the question was whether given the heightened duty of care applicable to common carriers, the bus operator breached his duty by failing to warn Plaintiff to hold on or sit down. The Appellate Court found that the submitted expert declaration raised additional factual allegations that were not referenced in operative pleading (such as failing to warn Plaintiff to hold on or sit down) and that it was proper 20

for the trial court not to consider them in opposition to the District’s summary judgment motion.

even if Hu could not point to any specific defect on the road in question.

Accordingly, the Appellate Court concluded that the loss of the usable bike lane was not an independent cause of the accident but an aspect of the dangerous condition itself.

The Appellate Court also affirmed the trial court’s heavy reliance on the bus video, disregarding Plaintiff’s multiple conflicting factual inferences.

The Court noted, “If a picture is worth 1000 words, a video is worth considerably more. A video objectively captures the sequence of events.

Unlike a witness, a video does not suffer from bias or the fading of memory of the time.”

The Court then addressed the City's primary ground for affirmance: trail immunity under Government Code § 831.4, subdivision (b), which immunizes a public entity from liability for injuries caused by the condition of "any trail used for" fishing, hunting, camping, hiking, riding, water sports, or access to recreational or scenic areas. The trial court had ruled that Bailey Avenue's bike lane qualified as such a "trail." The Court of Appeal disagreed, holding that Section 831.4, subdivision (b) does not apply to a bike lane—specifically, a Class II bikeway—on a city street or highway. The Court's analysis began with the text of Section 831.4, subdivision (a), which expressly excludes from its scope any "city street or highway." Because the bike lane at issue was a designated and marked portion of Bailey Avenue—an established city street—the Court found that the City bore the burden on summary judgment of adducing evidence that Bailey Avenue was not a city street and failed to do so.

The Court further reasoned that treating an on-street bike lane as a "trail," simply because recreational areas can be accessed from Bailey Avenue and its bicycle lane, would improperly extend the statute's recreational and unimproved-property immunity to urban infrastructure that the Legislature clearly intended to exclude. Because the City failed to carry its burden to establish trail immunity, summary judgment was not warranted on that ground. The Court reversed the judgment and awarded Hu his costs on appeal.

The Appellate Court held that the video evidence was sufficient to negate an element of the claim of negligence – that the District did not exhibit the utmost care – and specifically held that the evidence revealed that the bus did not move in an unexpected way or jerk before Plaintiff fell, and that the sole, proximate cause of Plaintiff’s injury was her failure to hold on while standing as the bus was in motion, as demonstrated by the videotape.

Hu v. City of San José (2025) 114 Cal.App.5th 149 Summary: This dangerous condition of public property case arises from a solo bicycle accident on a city street. Plaintiff Qinglong Hu was riding his bicycle in the designated bike lane on Bailey Avenue in San José when debris, gravel, and deteriorating pavement in the lane allegedly forced him to veer into the adjacent vehicle lane, where he crashed and sustained injuries. Hu sued the City of San José, alleging the road constituted a dangerous condition of public property within the meaning of Government Code §§ 830 and 835. The trial court granted the City's motion for summary judgment on two grounds: (1) Plaintiff could not establish causation because he was in the vehicle lane at the time he fell and could not pinpoint the precise cause of his fall; and (2) Government Code § 831.4, subdivision (b)—the "trail immunity" statute—immunized the City because Bailey Avenue's bike lane was a "trail" within the meaning of that section. The Sixth Appellate District reversed on both grounds.

Vallejo Unified School District v. Superior Court (2025) 118 Cal App 5th 139 Summary: An 11-year-old student died by suicide at her father's home during winter break. Her parents sued the Vallejo Unified School District for negligence, alleging failure to prevent bullying, failure to properly respond to the student’s suicidal ideation, and failure to supervise and train staff. The parents also brought a survival claim for the student’s pre-death pain and suffering. The trial court denied the District’s motion for summary judgment, finding triable issues of fact as to whether the District exercised reasonable care and whether the student was injured on campus. The District sought writ relief. The Court of Appeal granted in part and denied in part the appeal. The Court held that the District was immune under Education Code § 44808 from liability for the off-campus death itself, but that the immunity did not reach the survival claim based on on-campus conduct.

Discussion: On appeal, the Court reviewed the City's summary judgment de novo. The Court addressed both the dangerous condition and the trail immunity issues. Regarding the dangerous condition and causation arguments, the Appellate Court found that the City's evidence failed to negate a triable issue of material fact on either issue. The record showed that the bike lane on Bailey Avenue was obstructed with plant debris, loose gravel, dirt, potholes, and uneven pavement—conditions that a reasonable person could conclude created a substantial risk of injury to cyclists using the lane with due care.

Further, because Hu was using the bike lane for its intended purpose, unlike instances where the dangerous condition is “open and obvious” – such as using the diving board on an empty swimming pool – there was a factual dispute as to foreseeability of harm precluding summary judgment in the City’s favor.

Discussion: The District argued that the trial court misread Education Code § 44808 and the Supreme Court's decision in Hoyem v.

Manhattan Beach City School District (1978) 22 Cal.3d 508 in finding a triable issue as to the District’s liability for the student’s offcampus death. The Court of Appeal agreed. It explained that Section 44808 immunizes a school district from liability for off-campus harm to a student proximately caused by the District's negligence unless the student was, or was supposed to be, under the District’s direct supervision at the time, or the District had specifically undertaken to provide transportation or otherwise assumed responsibility for the student off campus. Because the student was at her father’s home during winter break and was not under, and was not supposed to be under, the District's supervision when she died, the Court held the District was immune from liability on the negligence causes of action

The Appellate Court also rejected the City's causation argument, which relied on the fact that Hu was in the vehicle lane at the precise moment of impact. The Appellate Court reasoned that Hu’s entry into the vehicle lane was not an independent intervening cause but rather a direct consequence of the dangerous condition in the bike lane—the entire sequence of events, including the forced merge into the vehicle lane – flowed from the alleged deteriorated condition of the bike lane. Further, the Appellate Court held that the factual record supported a reasonable inference that the dangerous condition in the bike lane caused his injury, 21

CAJPA 2026 CASE LAW UPDATE TORT, DANGEROUS CONDITION, IMMUNITIES CASES – CONTINUED By: Maria Nozzolino, Allen, Glaessner, Hazelwood Werth premised on her death, regardless of any alleged earlier breach of duty by the District. The Court rejected the trial court's view that a factual dispute over whether the District exercised reasonable care could independently defeat immunity, clarifying that the reasonable care language in the statute does not create a separate basis for liability once the off-campus, unsupervised nature of the harm is established.

who opted out had to remain in another science program) and not an optional or supplemental outing (i.e., a mere observational visit nor a recreational departure from the usual educational course), the District could not establish as a matter of law that it was a qualifying "field trip or excursion."

The Appellate Court further noted that the trial court's reliance on Section 35330's deemed-waiver language was misplaced: a waiver requires the voluntary and knowing relinquishment of a known right, and in distinguishing voluntary from mandatory activities, the focus is on whether the activity in question served a “required school purpose,” not whether the district could compel participation in an off-premises activity as the sole means of satisfying that required purpose. The Appellate Court held that because there was no dispute that science education is a required school purpose, the voluntary choice to attend Walden West rather than attending customary school did not make attending Walden West a field trip or excursion subject to Section 35330 waiver of claims.

The Court reached a different result on the survival claim. Because that claim was premised on the student’s alleged on-campus suffering, caused by the District’s alleged negligent supervision while she was still under its care at school, the Court found Section 44808 immunity did not apply. The Court accordingly directed the trial court to grant summary adjudication on the wrongful death and negligence causes of action tied to the off-campus death, while allowing the survival claim based on on-campus conduct to proceed granting in part and denying in part the petition for writ.

Doe v. Mount Pleasant Elementary Sch. Dist. (2025) 113 Cal. App.5th 1208

The Court then addressed the District's alternative defense under Education Code § 44808, which generally limits a district's liability to injuries occurring on school property but carves out liability when a district undertakes a school-sponsored off-campus activity and the student "is or should be under the immediate and direct supervision" of a district employee. The District argued that no District employee was providing immediate and direct supervision of Plaintiff at the time of the assaults—overnight supervision was provided by SCCOE, with District teachers merely on call. The Appellate Court rejected this defense as well, finding the District's evidence insufficient to negate the possibility that a District employee should have been providing direct supervision given that District personnel allegedly knew of Covarrubias-Padilla's history of misconduct. The Appellate Court emphasized that the question of whether a District employee "should" have been supervising Jane Doe at the time of the assaults is a fact-intensive inquiry that could not be resolved against the Plaintiff on summary judgment when the District's own knowledge of the assailant's history remained in dispute. The Court accordingly reversed the summary judgment and remanded the matter for further proceedings.

Summary: This dangerous condition/negligence case arises out of a student's sexual assault at an overnight outdoor science camp.

Plaintiff Jane Doe attended a four-day residential outdoor science program at Walden West Outdoor Science School (“Walden West”) as a fifth grader, pursuant to a contract between her school district, Mount Pleasant Elementary School District, and the Santa Clara County Office of Education (SCCOE), which operated the camp. SCCOE employed Edgar Covarrubias-Padilla as a night monitor. Plaintiff alleged that he repeatedly sexually assaulted her during the camp and that both the District and SCCOE knew or should have known of his prior history of sexual misconduct with minors and child pornography investigation. Plaintiff filed suit against the District, SCCOE, and the employee for negligence. The District moved for summary judgment, asserting immunity under Education Code §§ 35330 and 44808. The trial court granted summary judgment solely on Section 35330, finding that Plaintiff had waived her claims because Walden West was a "field trip or excursion." The Sixth Appellate District reversed, holding that the District failed to carry its burden on either statutory defense as a matter of law.

Gilliland v. City of Pleasanton (2025) 116 Cal.App.5th 138

Discussion: On appeal, the Court reviewed the District's summary judgment de novo. Because the District did not dispute the elements of Plaintiff's negligence claim, the Court evaluated only whether the District had established either of its asserted affirmative defenses as a matter of law.

*This decision is currently under review by the California Supreme Court. The Court of Appeal denied requests to make the opinion noncitable while under review.* Summary: A motorist who was severely injured in a collision brought a negligence action against the driver who ran the red light and collided with her vehicle, and against the City of Pleasanton for employing a police officer who had been following the red-light runner. After a bench trial, the Court concluded the City was not liable under the applicable statute immunizing public entities from liability for collisions caused by fleeing suspects when that public entity has a written policy on vehicular pursuits by peace officers and provides regular training on policy. The motorist appealed and the Court of Appeal reversed the trial court’s decision.

The Court first addressed the District's primary defense under Education Code § 35330, which provides that students participating in "field trips or excursions" are "deemed to have waived all claims against the district . . . for injury, accident, illness, or death occurring during or by reason of the field trip or excursion." The District argued that Walden West constituted a qualifying field trip or excursion, rendering Plaintiff's injury claim waived as a matter of law. The Appellate Court rejected this argument. Analyzing the statutory text and legislative history, the Appellate Court reasoned that a "field trip or excursion" under Section 35330 connotes a recreational, observational, or supplemental departure from the regular curriculum—not a core academic program required by District policy. Because Walden West was an integrated component of the mandatory fifth-grade science curriculum (students

Discussion: Plaintiff was severely injured when Elijah Henry ran a red light and collided with her vehicle in Pleasanton on August 3, 2017.

Pleasanton Police Officer, Matthew Harvey, had observed a possibly burglarized vehicle and made a U-turn to follow Henry’s car but did not activate his lights or siren. Henry accelerated downhill, entered an 22

intersection on a yellow turning red light to distance himself from Officer Harvey, and struck Plaintiff’s car. Henry testified he did not believe that Officer Harvey intended to arrest or pull him over and that no lights or siren were used. After a bench trial limited to the City’s liability, the court found immunity under Vehicle Code § 17004.7 and entered judgment for the City. Section 17004.7(b)(1) grants immunity for collisions caused by violators who are being, have been, or believe they are being pursued if the public entity adopts and trains on a compliant pursuit policy. The trial court held no actual pursuit occurred under the City policy but found a perceived pursuit using the term’s ordinary dictionary meaning.

not receive Plaintiff’s mailed claim until April 10, 2023. It did not receive her complaint until April 25, 2023.

The City demurred to Plaintiff’s complaint, arguing the complaint failed to state a claim because Plaintiff failed to comply with the Government Claim Act's claim presentation requirements. Thereafter, Plaintiff served her first amended complaint, alleging she submitted her claim for damages to the City on April 5, 2023, and that over 45 days had passed without a response from the City. The City demurred to Plaintiff’s first amended complaint, making the same argument about her failure to comply with the Act. The Court overruled the City’s demurrer. However, at the hearing on the City's demurrer, the court told the parties it would likely grant summary judgment to the City based on these circumstances, noting “[t]he fact [Plaintiff] served the summons and complaint before the time period expired for the City to respond ... defeats the whole purpose of that 45day requirement.”

The Court of Appeal held “pursued” has a single meaning in Section 17004.7(b)(1) tied to the public entity’s vehicular pursuit policy definition. The Appeals Court rejected reliance on ordinary meaning and on Section 17004 precedents, emphasizing Section 17004.7’s policy-based, POST-guidelines-aligned definition. Here, the City’s policy defined “vehicle pursuit" as "an event involving one or more law enforcement officers attempting to apprehend a suspect, who is attempting to avoid arrest while operating a motor vehicle by using high-speed driving or other evasive tactics, such as driving off a highway, turning suddenly, or driving in a legal manner but willfully failing to yield to an officer's signal to stop.” Because Henry did not fit the definition of the City’s definition of “pursuit”, the Court rejected the Court’s reliance on the ordinary meaning. The Appellate Court clarified that officer noncompliance with policy requirements like lights or sirens does not categorically defeat immunity, but the policy’s definition governs both actual and perceived pursuits.

Plaintiff voluntarily requested dismissal of her amended complaint without prejudice and then filed a second lawsuit based on the same accident and injury against the City in the trial court. The second lawsuit was virtually identical to the amended complaint in her first lawsuit, with the exception of a new allegation that the City rejected her claim in September 2023 (after 45 days had passed). The second lawsuit omitted any mention of her first lawsuit.

Once again, the City demurred to Plaintiff’s complaint, arguing her second action was merely an effort to “circumvent the deficiencies” of her first lawsuit and that she was still in violation of the Claim Act. This time, the court sustained the City's demurrer without leave to amend and dismissed Plaintiff’s case with prejudice. In its written order, the court found that Plaintiff’s “initial failure to comply with the [Act] is a complete bar to this action” and “voluntarily dismissing that case and refiling its complaint on the identical claim does not cure the failure to comply with the Act.”

Thus, the Court of Appeal held that the trial court misinterpreted Section 17004.7 by using a broader ordinary meaning for “pursued” to find a perceived pursuit. This legal error was prejudicial because evidence that Henry did not believe the officer sought to arrest him could negate a perceived pursuit under the City’s definition of pursuit. Judgment for the City was reversed, and the case was remanded for application of the correct standard to determine immunity.

Plaintiff made two arguments on appeal. First, Plaintiff argued the trial court erred in sustaining the City's demurrer because Plaintiff did comply with the claim presentation requirements in her second action, which superseded her earlier complaint. Plaintiff argued that the fact that the City eventually denied her claim, as she alleged in her second lawsuit, essentially cured the premature filing of her first lawsuit. Second, Plaintiff argued that the City's failure to engage in a reasonable meet and confer before filing its first demurrer should result in a finding that the City waived its right to argue that Plaintiff’s premature filing of her lawsuit prejudiced its ability to investigate her claim.

Harland v. City of West Hollywood (2026) 120 Cal.App.5th 1166 Summary: Plaintiff refiled a personal injury suit against the City of West Hollywood, after having previously voluntarily dismissed a prior action against the City, seeking to recover for injuries sustained when she tripped and fell on a City sidewalk. The trial court sustained the City’s second demurrer to the refiled complaint without leave to amend and dismissed the case. Plaintiff appealed. The Court of Appeal held that Plaintiff’s premature filing of her personal injury lawsuit against the City violated the Government Claim Act’s presentation requirements and upheld the trial court’s dismissal.

In response, the City argued that Plaintiff’s premature filing of her first lawsuit was a fatal defect. As for Plaintiff’s claim that its meet and confer efforts were deficient, the City pointed out Plaintiff failed to raise this argument to the trial court and therefore could not raise it on appeal.

Discussion: On October 8, 2022, Plaintiff tripped and fell while walking near 8228 Sunset Boulevard in West Hollywood. On April 5, 2023 – two days shy of the six-month deadline – Plaintiff’s counsel mailed a claim for damages to the City. Plaintiff filed suit in the Superior Court two days after submitting the claim for damages on April 7, 2023.

In her complaint, Plaintiff alleged that before filing suit, she “presented a claim to [the City] ... [and] believes in good faith that these claims have been denied, or have not been acted upon, acknowledged, or responded to in any way, or will be denied in due course.” The City did

The Cour to of Appeal agreed with the City on both counts. The Court of Appeal noted that satisfying the Claim Act's presentation requirements is a condition precedent to a tort action. Failing to comply with the claim presentation requirements subjects a complaint to a general demurrer for failure to state a claim. The claims presentation requirements ensure that the public entities get sufficient information to investigate claims without the expense of litigation. Suing a public entity before presenting 23

CAJPA 2026 CASE LAW UPDATE TORT, DANGEROUS CONDITION, IMMUNITIES CASES – CONTINUED By: Maria Nozzolino, Allen, Glaessner, Hazelwood Werth it with a claim defeats this function. Plaintiff did not fulfill the claim presentation requirements because she sued the City before the 45-day waiting period elapsed. Her lawsuit against the City could not stand.

The Court of Appeal further noted that a plaintiff must satisfy the claim presentation requirements even if the entity had actual knowledge of the circumstances surrounding the claim.

At bottom, the Court of Appeal held Plaintiff’s premature filing of her first lawsuit violated the Claims Act. She deprived the City of the opportunity to investigate her claim before forcing it into litigation with her. It was immaterial that the City later denied Plaintiff’s claim. Her premature suit contravened the Claims Act.

24

EMPLOYMENT CASES By: Dylan T. De Wit, Porter Scott Allos v. Poway Unified School Dist., Inc. (2025) 112 Cal. App.5th 822

Lampkin v. County of Los Angeles (2025) 112 Cal.App.5th 920 Summary: An employee-plaintiff who requests only monetary damages for their whistleblower retaliation claim Labor Code section 1102.5 is not successful if the employer-defendant establishes the samedecision defense under Labor Code section 1102.6, which bars the plaintiff from collecting monetary damages in the action. Therefore, the employee-plaintiff is not entitled to attorney’s fees.

Summary: California Government Code section 855.4 bars claims against a School District’s return to work policy after the COVID-19 pandemic.

Discussion: Kheloud Allos worked with the Poway Unified School District (PUSD) when COVID-19 shut down the school’s in-person operations, forcing Allos to work from home. After the stay-at-home order was lifted, Allos requested to continue working exclusively from home. She submitted several doctor notes support her claim that she faced a heightened need to avoid risk of infection to COVID because she cared for her elderly mother. The note also asserted that Allos also could not be vaccinated because her own medical history put her at “high risk for developing allergies/infections post vaccination.” At her deposition, Allos further stated she wanted to work from home due to her age, high blood pressure and obesity increased her risk from COVID-19.

Discussion: D’Andre Lampkin was a deputy at the Los Angeles County Sheriff’s Department (LASD). One day he stopped to investigate Michael Reddy (“Reddy”), a retired deputy sheriff, and Reddy’s longterm girlfriend for suspected solicitation of prostitutes. Lampkin’s and Reddy’s respective stories of the stop differed.

Lampkin alleged Reddy showed Lampkin his badge and warned Lampkin that he still had connections at LASD, implying Lampkin should leave him alone due to these connections. Reddy denied this, and stated that Lampkin threatened him after making a crude and sexual remark in front of Reddy’s girlfriend. Lampkin reported the interaction to his supervisor and Reddy complained to LASD about the stop.

Lampkin alleged that LASD then instigated retaliatory actions against him, including suspending him from work, searching his residence, and terminating his medical benefits.

PUSD officials held several interactive meetings with Allos, explaining all PUSD were expected to return to the office and offered her an enclosed office to protect her from exposure to the virus. Allos rejected the suggestion. In the following interactive meetings, PUSD maintained that remote work was not an option and that it wanted to transition Allos back to the office full-time. PUSD offered more temporary accommodations, which Allos rejected. Eventually, PUSD gave Allos an ultimatum, requiring that she transition to office full -time or be placed on unpaid administrative leave. Allos then submitted a request for retirement.

Lampkin then brought a suit against LASD for whistleblower retaliation, seeking monetary damages. Under California Labor Code sections 1102.5 and 1102.6, an employee-plaintiff must prove that they engaged in protected whistleblowing activity, and their activity was “a contributing factor” in the employer’s decision to take an adverse employment action against them, such as termination. If the employee prevails, the employer-defendant may then attempt to establish a same-decision defense by proving by clear and convincing evidence that it would have taken the same action for “legitimate, independent reasons,” even if plaintiff had not engaged in the protected whistleblowing activity. If the employee-defendant prevails on a claim for Labor Code whistleblower retaliation, they are entitled to reasonable attorney’s fees.

Soon thereafter, Allos sued PUSD, alleging that PUSD violated of the FEHA and Labor Code by rejecting her request to work exclusively from home. She asserted that PUSD discriminated against her based on disability, failed to provide reasonable accommodations, failed to engage in an interactive process, and discriminated against her based on her association with a disabled person.

PUSD filed a motion for summary judgement asserting Allos’s claims were not actionable because they were barred by Government Code section 855.4 and that Allos could not establish any triable issues of material fact for her claims.

The case went to jury trial. The jury held that Lampkin carried his burden on the initial stage of trial—he engaged in protected whistleblowing activity and the activity was a contributing factor in LASD’s actions against Lampkin. However, the jury further held that LASD would have made the same decisions for independent and legitimate reasons. As such, the jury awarded no damages.

The trial court granted the PUSD’s motion for summary judgment, finding that Allos’s claims were barred by Government Code section 855.4, which immunizes government defendants from claims arising from their “decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if the decision whether the act was or was not to be performed was the result of the exercise of discretion vested in the public entity or the public employee, whether or not such discretion be abused.”

Lampkin then filed a motion for an order to declare him the prevailing party for purposes of awarding him attorney’s fees, arguing that the same-decision defense does not preclude a fee award in the context of FEHA. The trial court granted the motion and later awarded him attorney’s fees and the fee awards. The county appealed the fee award.

The California Court of Appeal reversed the trial court’s decision, denying Lampkin’s request for attorney’s fees. The Court held that because the County proved its same-decision defense, Lampkin’s claims for monetary damages were defeated and therefore unsuccessful.

Importantly, although section 1102.5 allows for nonmonetary relief, such as an injunction to reinstate the employee, Lampkin did not request such relief. Accordingly, he could not collect attorney fees because he did not bring a successful action against the County.

Furthermore, Allos failed to prove she has a qualifying disability despite her high blood pressure, obesity, and allergies to various vaccines.

Rather, she chose not to get the vaccine as she was afraid of getting an allergic reaction, based on a minor allergic reaction she had almost ten years before the COVID vaccine was introduced.

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CAJPA 2026 CASE LAW UPDATE EMPLOYMENT CASES – CONTINUED By: Dylan T. De Wit, Porter Scott Husband v. Target Corporation (2026) 120 Cal.App.5th 762

Husband sued Target under FEHA for discrimination on the basis of mental disability, failure to provide reasonable accommodation for his mental disability and failure to engage in the interactive process.

Target moved to summary judgment on the FEHA claims along with summary adjudication of his prayer for punitive damage. The trial court granted Target’s summary judgment, as Target had no knowledge of the plaintiff’s disability w hen it decided to terminate him due to there being more than one “reasonable interpretation” of Husband’s conduct at work other than a manic episode from a mental disability. Furthermore, Target had a legitimate and non-discriminatory reason for terminating Husband for making “threats or violence against coworkers” in violation of company policy. Husband appealed.

Summary: An employer’s knowledge of a disability will be inferred only when the fact of disability is the only reasonable interpretation of known facts or through obvious and observed symptoms that are “so obviously manifestation of an underlying disability” that the existence of a disability always follows from the observed symptoms.

Discussion: Target Corporation (Target) hired Daniel Husband to work in its store. Although “new hire” material Husband had asked Husband whether he needed accommodation for any “known physical or mental limitation(s)” of its employees, Husband never disclosed that he was diagnosed with bipolar I disorder.

Husband worked for Target for approximately 20 months without any documented disciplinary issues. In June and July 2022, however, Target documented several incidents involving unusual and disruptive behavior.

The Appellate court upheld the trial’s court decision, finding that FEHA only prohibits discrimination only when motivated by a “discriminatory intent.” The Plaintiff must first establish a prima facie case of discrimination by establishing that (1) he suffered from a disability (2) he was otherwise qualified to do his job (3) he was subject to adverse employment action because of the disability. When the Plaintiff makes the case, the burden shifts to the employer to set forth a legitimate and nondiscriminatory reason for the “adverse employment action”. If the employer does so, it shifts back to the employee to prove intentional discrimination.

On June 9, 2022, while off duty and shopping at the store, Husband became visibly upset during an interaction with another employee.

He was reported to have used profanity toward the employee.

Management later counseled him regarding the incident.

On July 7, 2022, Husband arrived at work visibly distressed, reported that he had been hitting himself in the temple, then stated that his work assignments were themselves “laughing at him.” He then became highly emotional and yelled at a coworker. His supervisor considered the behavior out of character and expressed concern about Husband’s mental state to store leadership and human resources.

Here, Husband never informed Target about his disability and there were other reasonable interpretations as to his erratic behavior that could be drawn. There was no reason as to why Target should know Husband had bipolar disorder based on the behavior they observed.

As such, Target had no knowledge of his bipolar disorder and could not accommodate because of this lack of knowledge.

On July 8, 2022, Husband again appeared distressed and told his supervisor that he believed he had killed his stepmother by “speaking a word” and asked whether he had killed anyone at the Target store.

Management viewed the statements as irrational and concerning, sent Husband home, and recommended that he seek medical or psychological evaluation. Later that evening and again the next day, Husband and his father met with store management to dispute concerns about his condition and conduct.

Caldrone v. Circle K Stores Inc., 156 F.4th 952 (2025) Summary: A plaintiff bringing a claim for age discrimination based on a failure to hire or promote need not establish that they applied for the position if evidence suggests they were barred from submitting an application. Moreover, the plaintiff is not barred from bringing an age discrimination claim just because they were less than 10 years older than the person selected over them, as long as additional evidence establishes discriminatory animus by the employer based on age.

On July 9, 2022, Target decided to terminate Husband’s employment for violating its workplace violence policy. At the time the decision was made, Husband had not informed Target that he suffered from bipolar disorder and had not requested any accommodation for a mental disability.

Discussion: Brian Caldrone (age 54.4), Joseph Celusta (age 55.8) and Kathleen Staats (age 56.9) were all former employees of Circle K stores that worked as exemplary Dealer Business Managers (“DBM”) that earned strong performance reviews and company awards for their work. Their performance put them in line for promotion to regionaldirector level and all of them expressed interest in promotion. In January 2020, West Coast regional director became available, but all three plaintiffs were not given a chance to apply for the position. Circle K chose Miko Angeles (age 45.2) for the role. Angeles previously served as the Southeast regional director and before that was a DBM.

Before being informed of his termination, Husband returned to the store on July 10, 2022, entered an employee-only area, took a set of store security keys, left the store with the keys, identified himself as someone else, threw the keys at another employee while shouting profanities, and began removing his clothing before walking away. The incident was captured on surveillance video.

On July 18, 2022, Husband submitted a note from a medical provider stating that he had been evaluated and was able to return to work, although the note did not disclose any mental health diagnosis. Target then informed Husband that same day that his employment had been terminated. Husband later sought reinstatement through Target’s Integrity Hotline and, subsequently, through counsel, asserting that he had been subjected to disability discrimination, but Target upheld its termination decision.

Plaintiffs sued Circle K for age discrimination claims under the federal Age Discrimination in Employment Act (“ADEA”) and California’s Fair Employment and Housing Act (“FEHA”). Both claims were on the premise that Circle K illegally denied plaintiffs the opportunity to apply for and secure the promotion because of their age. Circle K moved for summary judgment. Because the Plaintiffs conceded they did not apply for the position, the district court determined that their claims failed at step one and rejected Plaintiffs’ argument that they should be excused 26

from an expectation to have applied for the position because Circle K did not call for applications, as it had for other promotion opportunities in the past. Furthermore, because Caldrone was only 9.3 older than Angeles, the court held that the age gap was too small to give rise to a presumption of discrimination. As such, the district court granted summary judgment.

Sanders continued to make advances by showing up to Kruitbosch’s house uninvited, inviting him to a hotel room, offering him drugs, and sending multiple sexual images.

Kruitbosch immediately complained to BRS’s acting program director and HR representative. They informed him there was not much they could do about Sanders’s behavior, and the HR representative made sarcastic comments directed at Kruitbosch. No steps were taken to separate Kruitbosch from Sanders or prevent future harassment, and BRS did not take any disciplinary actions against Sanders. Kruitbosch’s employment became unbearable as he went to great lengths to avoid contact with Sanders, including calling her worksite to determine whether she was working before he visited. The fear of seeing Sanders caused extreme distress and Kruitbosch felt overcome with anger and humiliation knowing Sanders was free to continue harassing him.

The inaction of BRS intensified these feelings and eventually led to Kruitbosch’s resignation, as he felt continuing to work at BRS would be detrimental to his mental health, grief recovery process, and sobriety.

The Ninth Circuit reversed.

First, the Court found that Circle K’s decision not to seek out application obviated Plaintiffs’ obligation to submit them. It does not matter why Circle K did not open the application process to Plaintiffs. Nor were the Plaintiffs required to establish that Circle K’s failure to do so was somehow improper under applicable law. These factors could not be used as a shield to dismiss the Plaintiffs’ claims. “[I]f plaintiffs had no way to submit an application—whatever the reason—their failure to do so does nothing to weaken any inference of age discrimination that the other elements of the prima facie case create.”

Second, Circle K argued that because Caldrone was only 9.3-years older than Angeles—not 10—Caldrone failed to establish sufficient evidence to create a presumption of age discrimination. The Court disagreed, reiterating that the general presumption that a 10-year age constitutes a “substantial age gap” for purposes of an age discrimination claim does not create a brightline rule that an employeeplaintiff must prove that the candidate selected for a promotion over them was at least 10 years younger than them. Indeed, if the gap is smaller but additional evidence reveals the employer’s decision to be motivated by the plaintiff’s age, that can still give rise to a presumption of discrimination. Here, Plaintiffs produced evidence of age discrimination when executives told them that they were “out of touch” and “too old for this business” after telling the executive their age. This was sufficient to establish a presumption of discrimination notwithstanding the 9.3-year age gap between Caldrone and Angeles.

Kruitbosch filed suit asserting nine claims against BRS and a claim of intentional infliction of emotional distress against Sanders. BRS demurred to seven claims, including the claim of hostile work environmental sexual harassment. The trial court sustained BRS’s demurrer without leave to amend finding the court was not persuaded that the fact the individuals involved met through their work relationship automatically means any communication or any interaction that extends beyond that as a result of their introduction is attributable to BRS. Following this ruling, Kruitbosch dismissed the two remaining claims for failure to timely produce records and appealed with respect to BRS. The Court of Appeals reversed in part and affirmed in part. As a preliminary matter, the Court found that Sanders’s conduct was not sufficiently work related just because Kruitbosch subsequently reported her conduct to his supervisor. However, the Court held that BRS’s allegedly dismissive response to Kruitbosch’s complaint unreasonably affected his working environment because its refusal to take any action while simultaneously mocking his concerns could indicate to a reasonable person in Kruitbosch’s shoes that BRS had no objection to Sanders’s conduct and that his concerns were trivial. Overall, the Court held the aggressive nature of Sanders’s sexual advances, the supervisor’s complete inaction and the HR representative’s conduct could be viewed as having the effect of altering plaintiff’s work environment in an objectively severe manner.

Kruitbosch v. Bakersfield Recovery Services, Inc. (2025) 114 Cal. App. 5th 200 Summary: Although an employee’s report of a coworker’s sexual conduct outside of work does not retroactively render the conduct “work related,” for purposes of a sexual harassment claim, the employer’s lack of response to an employee’s complaint about their coworker may alter the complaining employee’s work environment in an objectively severe manner to constitute a hostile work environment.

Discussion: Plaintiff Steven Kruitbosch, worked as an assistant corporate compliance officer at Bakersfield Recovery Services (“BRS”), a substance abuse treatment facility for recovering alcoholics and drug addicts. He was responsible for overseeing client services, training and supervising staff, and ensuring facilities were operational and properly maintained. Lisa Sanders was a case manager and one of Kruitbosch’s coworkers. Kruitbosch was responsible for Sander’s training, directing her on client care issues, and overseeing her worksite. They did not have any type of relationship outside of work, only texted for work-related purposes, and Sanders knew where Kruitbosch lived only through work.

Paknad v. Superior Court, (2026) 119 Cal.App.5th 1256 Summary: By putting the adequacy of its own internal investigation directly at issue through an avoidable consequences defense to an employee’s discrimination and harassment claims, the employer waives attorney-client privilege and attorney work product protection of the internal investigation’s findings in litigation.

Discussion: Plaintiff, Michelle Paknad, was employed by Intuitive Surgical, Inc. and Intuitive Surgical Operations, Inc (collectively, “Intuitive”). While still employed, Paknad made two formal complaints of discrimination, harassment, and retaliation. Intuitive retained attorney Andrea Kelly Smethurst to investigate. Smethurst interviewed witnesses, reviewed documents, and eventually produced two reports containing findings into Paknad’s internal complaints. Paknad received a summary of Smethurst’s findings, but Intuitive did not share the underlying reports.

In October 2022, Kruitbosch’s long-time partner passed away, and he took leave. In the weeks leading up to his return, Sanders began sending Kruitbosch multiple unsolicited nude pictures and stating she wanted to have sex with him. These advances were firmly rejected, but 27

CAJPA 2026 CASE LAW UPDATE EMPLOYMENT CASES – CONTINUED By: Dylan T. De Wit, Porter Scott Following this, Paknad was fired and sued Intuitive and her former supervisors for sexual harassment, gender discrimination, and unlawful retaliation. In response, Intuitive asserted avoidable consequences as an affirmative defense to Paknad’s complaint and cited the Smethurst investigations, specifically highlighting the thoroughness and independence of Smethurst’s investigations.

automatically placing employees on unpaid leave constituted a failure to engage in the interactive process and an adverse action for purposes of retaliation claims under the ADA and FEHA. The parties filed cross-summary judgment motions. The court held that Grimmway’s practice of automatically placing employees on unpaid leave, without evidence of consideration of other possible accommodations, constituted an adverse action for purposes of liability under the ADA and FEHA’s retaliation statutes.

Paknad moved to compel production of the reports and investigative materials, but the trial court denied her motion. Paknad petitioned for mandamus relief, and the Court of Appeals granted the petition in part and ordered issuance of a peremptory writ directing the trial court to vacate its order denying the motion to compel “insofar as it relates to the Smethurst reports and related investigative materials, and to enter a new order granting the motion.” The Court reasoned that once an employer puts the adequacy of an investigation directly at issue in response to an employee’s lawsuit, the employer cannot stand on the attorney-client privilege or work product doctrine to preclude discovery necessary to conduct a thorough investigation into investigation’s adequacy.

The court reasoned that automatic unpaid leave for those seeking accommodations reduced the compensation paid to those employees as compared to those who did not pursue reasonable accommodations, which operated as a deterrent to reasonable employees who are considering requesting disability accommodations. For those employees who are not deterred from seeking accommodations, Grimmway’s automatic leave practice effectively punished them for doing so by immediately reducing their compensation without further consideration of possible workplace accommodations.

The California Supreme Court affirmed. The Court reviewed the materials and redactions at issue and found Intuitive, by its voluntary conduct, had waived attorney-client privilege and attorney work protection as to all Smethurst’s factual findings about Paknad’s allegations of discrimination, harassment, and retaliation, whether in Smethurst’s reports or the underlying investigative materials, to the extent such information was relevant to the scope and adequacy of Smethurst’s investigation. Moreover, the factual findings were relevant to the disputed issue of Smethurst’s independence and objectivity given that Intuitive put both at issue. Accordingly, Paknad was entitled to an opportunity to assess how the findings were reached and to examine possible bias.

Petersen v. Snohomish Regional Fire and Rescue, 150 F.4th 1211 (9th Cir. 2025) Summary: An employer must accommodate an employee’s religious practices unless doing so would impose an undue hardship on the conduct of the employer’s business such as substantial health and safety costs, operational burdens, or financial burdens.

Discussion: Plaintiffs worked as firefighters at Snohomish Regional Fire and Rescue, SRFR. In August 2021, SRFR issued a vaccine mandate to its firefighters but allowed for them to request accommodations based on their sincerely held religious beliefs. Forty-six firefighters, including the eight Plaintiffs, requested exemptions. SRFR’s Human Resources met with each employee to discuss their request and any possible accommodation. In October 2021, SRFR determined it could not accommodate unvaccinated firefighters in their firefighting roles without imposing an undue hardship on its operations.

Cal. Civil Rights Dept. v. Grimmway Enterprises, Inc., 800 F. Supp. 3d 1084 (E.D. Cal. 2025) Summary: An employer’s practice of automatically placing employees on unpaid leave constitutes an adverse employment action and may qualify as a pattern or practice of disability discrimination under the ADA and FEHA.

Plaintiffs sued SRFR and its fire chief for causes of action for a failure to accommodate religious belief. The district court granted SRFR’s motion for summary judgment, and the Plaintiff’s appealed to the Ninth Circuit Court of Appeals.

Discussion: Grimmway Enterprises, Inc. operates a Human Resources Department that includes sub-departments focusing on employee leave issues and the interactive process. Employees with health-related issues were routed to different departments based on whether their medical issue were industrial or non-industrial. Non-industrial health related issues are generally routed to the Medical Leave of Absence Department for processing in the first instance and industrial healthrelated issues are generally routed to the Workers’ Compensation Department. Once an employee who was referred to the Medical Leave of Absence Department has exhausted their protected leave, they will be referred to the Interactive Process Department. During the applicable time period, Grimmway’s Interactive Process Department automatically funneled into unpaid leave almost all (96%) participating employees.

SRFR identified several different kinds of cost it would have faced had it allowed firefighters to work unvaccinated. The Court grouped the costs into three categories, including health and safety costs, operational burdens, and financial burdens. The Court explained the health and safety of SRFR firefighters and the public, the large number of firefighters seeking accommodation, the risk to its operations and the cost of widespread absences, the potential loss of a lucrative contract with the Department of Corrections, the risk of additional liability, and the unrebutted medical evidence that showed the inadequacy of Plaintiff’s proposed accommodation all amounted to a showing that SRFR could not reasonably have accommodated Plaintiffs without undue hardship.

Importantly, the Court held that Plaintiffs failed to provide evidence that their proposed accommodation would have been a reasonable alternative to the vaccination.

The California Civil Rights Department (“CRD”) brought a class action against Grimmway, seeking to bring claims under the Americans with Disabilities Act (“ADA”) and California’s Fair Employment and Housing Act (“FEHA”) on behalf of a class of employees who were disabled or requested workplace accommodations during their employment with Grimmway. Specifically, the CRD alleged that Grimmway’s practice of 28

The plaintiffs further argued that other fire departments in the area allowed unvaccinated firefighters to continue working. The Court disregarded this argument, finding that it could not judge SRFR by the responses taken by other fire departments, with the clarity of hindsight, or the benefit of post-pandemic debates over what measured responses frontline employers should have taken.

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