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August 2004 
Vol. 10 No. 3 ISSN 1087-6219
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The California Supreme Court has overturned a controversial ruling that had allowed discovery of what the court of appeal termed "pure evidence," even if prepared for mediation. The privilege for mediation materials is absolute.
In a lawsuit by the owner of an apartment complex against the contractors and sub-contractors who built it, experts took pictures, conducted tests, analyzed data, and arrived at opinions, all in connection with a successful mediation effort.
After the owner's lawsuit settled, several hundred tenants of the complex sued the owner and many others associated with its development and construction. The tenants sought discovery of the materials developed during the mediation effort in the earlier lawsuit.
The Court of Appeal created a firestorm when it ruled that the raw materials were freely discoverable, and other materials were discoverable upon a showing of good cause. The Supreme Court ruled that the Court of Appeal had ignored the privilege provisions of Evidence Code section 1119, which protects all writings "prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation."
Rojas v. Superior Court, 2004 WL 1542239 (Cal. Ct. App. Jul. 12, 2004).
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The First District Court of Appeal in San Francisco has ruled that the operator of the Golden Gate bridge cannot be held liable for the suicide of a 14-year old girl. The bridge is safe when used with due care.
Fourteen-year old Marissa Imrie took a cab from Santa Rosa to the Golden Gate Bridge and jumped to her death. Her mother sued for wrongful death, claiming that the bridge operator should have built a suicide barrier. The trial court sustained the operator's demurrer without leave to amend, and the Court of Appeal affirmed.
Under Government Code section 835, a public entity may be held liable for injury caused by the dangerous condition of its property. Section 830 defines a condition as "dangerous" if it creates a substantial risk of injury when the property "is used with due care in a manner in which it is reasonably foreseeable that it will be used."
Although lack of due care by the injured person does not by itself defeat the cause of action, the plaintiff must be able to prove that the condition -- here, lack of a suicide barrier -- is dangerous when used by the general public. A person using the bridge to commit suicide is not using the bridge in a manner used by the general public exercising due care.
The plaintiff's offered an amendment that lack of a suicide barrier posed a danger to those using the bridge for activities that were not inherently dangerous, such as horseplay, sitting on the railing, or trying to stop suicides. Even if that satisfied the requirement to plead a dangerous condition, the complaint was defective because any defect was not the legal cause of the suicide.
Milligan v. Golden Gate Bridge Highway and Transportation Dist., 15 Cal.Rptr.3d 25 (Ct. App. 2004).
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The Second District Court of Appeal in Los Angeles has ruled that eBay is not liable for defamatory material posted by one user about another. Although the Communications Decency Act of 1996 did not protect eBay, its release documentation did.
Roger Grace bought items from a seller on eBay, and posted some negative comments about the seller. The seller responded: "SHOULD BE BANNED FROM EBAY!!!! DISHONEST ALL THE WAY!!!!" When eBay refused to remove the seller's posting, Grace sued the seller and eBay.
Although eBay invoked the immunity provided by 47 U.S.C. sec. 230, the protection did not apply. Section 230 states that no provider or user of an interactive computer service shall be treated as the publisher or speaker of material provided by someone else.
Section 230's immunity does not extend to liability as a distributor of material. Under common law rules a distributor of defamatory material is liable for defamation if it knew or had reason to know that the material was defamatory. Since Grace had told eBay about the nature of the seller's material, he had a viable claim against eBay as a distributor.
However, eBay has all buyers and sellers release it from liability for claims connected with any disputes with another user. Although Grace argued that his dispute was with eBay, the release was broad enough to encompass his lawsuit.
Grace v. eBay, Inc., 2004 WL 1632047 (Cal. Ct. App. Jul. 22, 2004).
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The Ninth Circuit has ruled that Arnold Schwarzenegger may not pursue a right of publicity claim in California against an Ohio car dealer who used a picture of Schwarzenegger's Terminator character.
Fred Martin ran an ad in the Akron Beacon Journal, which included a small picture of Schwarzenegger as the Terminator, with the following quotation next to it: "Arnold says: 'Terminate EARLY at Fred Martin!'" The ad referred to an offer to help customers terminate their car leases early.
Schwarzenegger sued in California for invasion of his right of privacy. The Ninth Circuit affirmed the federal district court's dismissal of the lawsuit for lack of personal jurisdiction.
A court may exercise personal jurisdiction under the "effects" test if the defendant committed an intentional act expressly aimed at the forum state, causing harm that the defendant knows is likely to be suffered in the forum state.
Although Fred Martin committed an intentional act by publishing the ad, the act was aimed at car buyers in Ohio, not at Schwarzenegger, even though he lives in California.
Schwarzenegger v. Fred Martin Motor Co., 2004 WL 1462444 (9th Cir. Jun. 30, 2004).
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Subsequent treatment of decisions reported on in earlier issues:
Buono v. Norton (July 2004 issue), now reported at 371 F.3d 543 (9th Cir. 2004).
Hope Intern. Univ. v. Superior Court (July 2004 issue), now reported at 119 Cal. App. 4th 719 (2004).
Peart v. Ferro (July 2004 issue), petition for review filed (Jul. 6, 2004).
RUI One Corp. v. City of Berkeley (July 2004 issue), now reported at 371 F.3d 1137 (9th Cir. 2004).
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