California Case Summaries Civil™
Every New Published California Civil Case
From October 22 to November 2, 2018
By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee at ADR Services, Inc.
Civil Trial Lawyer | National ABOTA Board Member | Ca. Attorney since 1980
For ADR Services, Inc. scheduling, contact my case manager Christopher Schuster Phone: (619) 233-1323. Email: christopher@adrservices.com
Monty’s Web: http://montymcintyre.com/mcintyre Monty’s cell: (619) 990-4312. Monty’s email: monty@montymcintyre.com
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CALIFORNIA COURTS OF APPEAL
Arbitration
Ramos v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 5730183: The Court of Appeal granted a petition for a writ of mandate and ordered the trial court to vacate its order granting defendant Winston & Strawn, LLP’s motion to compel arbitration in an action by plaintiff (an experienced litigator and patent practitioner with a doctorate in biophysics) for discrimination, retaliation, wrongful termination, and anti-fair-pay practices. The Court of Appeal ruled that the arbitration agreement was unconscionable under Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, and because the taint of illegality could not be removed by severing the unlawful provisions without altering the nature of the parties’ agreement, the entire agreement to arbitrate was void. (C.A. 1st, November 2, 2018.)
Attorney Fees
AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018) _ Cal.App.5th _ , 2018 WL 5669154: See summary below under Business.
Quiles v. Parent (2018) _ Cal.App.5th _ , 2018 WL 5730179: The Court of Appeal affirmed the trial court’s order awarding plaintiff $689,310.04 in attorney fees and $50,591.69 in costs after she prevailed in a jury trial where the jury awarded her damages for her individual claims for loss of past earnings, non-economic damages including emotional distress damages, and punitive damages. The trial court correctly determined that federal law applied to determine what costs plaintiff could recover under her Fair Labor Standards Act of 1938 (FLSA; 29 U.S.C. section 201 et seq.) claim. Defendant forfeited his argument that expert costs were not recoverable under the FLSA because he did not raise that issue in the trial court. The trial court properly awarded plaintiff attorney fees and costs incurred by her in relation to the successful litigation of her wrongful employment termination claim. (C.A. 4th, November 2, 2018.)
Attorneys
Palmieri v. Cal. State Personnel Board (2018) _ Cal.App.5th _ , 2018 WL 5659761: The Court of Appeal affirmed the trial court’s decision to deny her writ petition seeking to overturn her termination by respondent. Petitioner was an attorney hired by the California Department of Corrections and Rehabilitation (Department) to conduct disciplinary cases against prison guards. Petitioner was terminated based upon several counts including misconduct for dishonesty, inexcusable neglect of duty, insubordination, willful disobedience and discourtesy. The Court of Appeal rejected numerous legal arguments and ruled that substantial evidence supported the termination. (C.A. 3rd, October 31, 2018.)
Business
AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018) _ Cal.App.5th _ , 2018 WL 5669154: The Court of Appeal affirmed the trial court’s orders granting summary judgment for defendant/cross-complainant on both the complaint and cross-complaint, its issuance of an injunction against plaintiff, and its award of attorney fees to defendant. Plaintiff sued to enforce a Confidentiality and Non-Disclosure Agreement (CNDA) that prevented its employees from soliciting any employee of plaintiff to leave the service of plaintiff for at least a one-year period. The individual defendants were formerly “travel nurse recruiters” of plaintiff who left and joined defendant Aya Healthcare Services, Inc., where they also worked as travel nurse recruiters. The Court of Appeal ruled that the CNDA was an improper restraint on the individual defendants’ ability to engage in their profession, in violation of Business and Professions Code section 16600. Moreover, plaintiff’s tort-based causes of action failed as a matter of law because the information allegedly used by defendants to recruit travel nurses was not protected. The trial court properly exercised its discretion when it enjoined plaintiff from attempting to enforce its nonsolicitation of employee provision and when it awarded defendants attorney fees of $169,000. (C.A. 4th, November 1, 2018.)
Civil Code
Olive v. General Nutrition Centers, Inc. (2018) _ Cal.App.5th _ , 2018 WL 5730205: The Court of Appeal affirmed a judgment for plaintiff, following a jury trial, awarding plaintiff $213,000 in actual damages and $910,000 in emotional distress damages on his claim for the unauthorized use of plaintiff’s likeness in violation of Civil Code section 33441. However, it reversed the trial court’s order denying plaintiff’s request for prevailing party attorney fees and costs. The trial court properly excluded testimony from two expert witnesses offered by plaintiff. The Court of Appeal ruled that the trial court abused its discretion in ruling that plaintiff was not the prevailing party under section 3344(a). (C.A. 2nd, November 2, 2018.)
Civil Procedure
Marteney v. Elementis Chemicals Inc. (2018) _ Cal.App.5th _ , 2018 WL 5689151: The Court of Appeal affirmed the trial court’s orders entering judgment against defendant following a jury trial in a wrongful death action and its order allocating defendant’s liability for damages in light of prior settlements under Code of Civil Procedure section 877. The Court of Appeal rejected defendant’s argument that the wrongful death action trial court lacked jurisdiction due to a pending appeal of a personal injury and loss of consortium judgment that had been entered in favor of the parents of the wrongful death plaintiffs in an earlier action. The Court of Appeal also ruled that the trial court properly concluded that the wrongful death action defendant was entitled to a credit based solely on plaintiffs’ settlement in the wrongful death action with Union Carbide Corporation, but defendant was not entitled to any credit for settlements previously made by the parents of plaintiffs in their personal injury action. (C.A. 2nd, filed October 5, 2018, published November 1, 2018.)
Save Lafayette Trees v. City of Lafayette (2018) _ Cal.App.5th _ , 2018 WL 5262888: See summary below under Environment.
Contractors
Contractors State Licensing Bd. v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 5371787: The Court of Appeal granted a peremptory writ of mandate ordering the trial court to reverse its ruling overruling a demurrer, and instead sustain a demurrer without leave to amend to a complaint for declaratory relief by electrical contractor Black Diamond Electric, Inc. (BDE) after it was disciplined by respondent. The Court of Appeal issued the writ because BDE failed to exhaust its administrative remedies. Once the administrative decision became final, BDE should have sought judicial review of the disciplinary decision by filing an action for administrative mandamus. (C.A. 1st, filed October 11, 2018, published October 29, 2018.)
Employment
Bacilio v. City of Los Angeles (2018) _ Cal.App.5th _ , 2018 WL 5292224: See summary below under Government.
Brown v. Ralphs Grocery Co. (2018) _ Cal.App.5th _ , 2018 WL 5629874: The Court of Appeal reversed and remanded the trial court’s order sustaining a demurrer, without leave to amend, to plaintiff’s third amended complaint in a putative class action alleging claims under the Private Attorneys General Act of 2004 (PAGA; Labor Code, section 2698, et seq.). The Court of Appeal found that plaintiff’s 2009 filed notice (2009 Notice) of alleged Labor Code violations, as required by Labor Code section 2699.3, was adequate to allege a violation of Labor Code section 226(a), but not violations of sections 204, 226.7 and 512. The 2009 Notice could not serve as notice of alleged violations of sections 201, 202, 203, 1174(d), and 1198 (which were alleged in a later notice filed in 2016). The one-year statute of limitations for PAGA claims barred plaintiff’s attempt to add additional claims in a later-filed notice that was filed in 2016. Finally, the Court of Appeal ruled that, on remand, the trial court should determine whether any of the later-added PAGA claims (for violations of sections 201, 202, 203, 1174(d) and 1198) relate back to the adequately noticed and alleged claim for violations of section 226(a). (C.A. 2nd, October 31, 2018.)
Garcia v. Border Transportation Group, LLC (2018) _ Cal.App.5th _ , 2018 WL 5118546: The Court of Appeal reversed in part and affirmed in part the trial court’s orders granting summary adjudication to defendants on all eight of plaintiff’s causes of action in an action alleging wage and hour and other employment claims on the basis that plaintiff was an independent contractor not an employee. Based upon Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex), the Court of Appeal ruled that defendants failed to meet their burden on summary judgment to show no triable issue of material fact as to plaintiff’s wage order claims because, under part C of the “ABC” test adopted in Dynamex, defendants had to demonstrate that plaintiff “was customarily engaged in an independently established trade, occupation, or business” apart from his work for defendant Border Transportation Group, LLC, not that he was merely capable of such engagement. The Court of Appeal affirmed the summary adjudication rulings as to the other claims. (C.A. 4th, October 22, 2018.)
Palmieri v. Cal. State Personnel Board (2018) _ Cal.App.5th _ , 2018 WL 5659761: See summary above under Attorneys.
Quiles v. Parent (2018) _ Cal.App.5th _ , 2018 WL 5730179: See summary above under Attorney Fees.
Ramos v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 5730183: See summary above under Attorneys.
Environment
Save Lafayette Trees v. City of Lafayette (2018) _ Cal.App.5th _ , 2018 WL 5262888: The Court of Appeal affirmed in part and reversed in part the trial court’s order sustaining a demurrer, without leave to amend, to a petition challenging respondent’s approval of a Letter of Agreement for Tree Removal (agreement) with real party in interest Pacific Gas and Electric Company (PG&E). The Court of Appeal ruled that the claims asserted under the planning and zoning law (Government Code section 65000 et seq.), respondent’s general plan, and respondent’s tree protection ordinance (Lafayette Municipal Code, section 6-1701 et seq.) were barred by Government Code section 65009(c)(1)(E). However, the Court of Appeal ruled that the claim under the California Environmental Quality Act (CEQA; Public Resources Code, section 21000 et seq.) was timely filed and served under Public Resources Code sections 21167(a) and 21167.6(a). The trial court’s order sustaining the demurrer as to the second, third, and fourth causes of action was affirmed, but the order sustaining the demurrer to the first cause of action was reversed. (C.A. 1st, October 23, 2018.) Save Our Heritage Organisation v. City of San Diego (2018) _ Cal.App.5th _ , 2018 WL 5276402: The Court of Appeal affirmed the trial court’s order denying petitioner’s petition for a writ of mandamus challenging the approval by the respondent of an environmental impact report (EIR) addendum for revisions to the Plaza de Panama project at Balboa Park. The Court of Appeal ruled that the EIR addendum process used by respondent was valid, and, in using the EIR addendum process, respondent was not required to make findings under Public Resources Code section 21081. (C.A. 4th, October 24, 2018.)
Fish and Game
Ivory Education Institute v. Dept. of Fish & Wildlife (2018) _ Cal.App.5th _ , 2018 WL 5725667: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for judgment on the pleadings in an action by plaintiff seeking to block the implementation of Fish & Game Code section 2022, effective on July 1, 2016, imposing tough new restrictions on the sale and importation of ivory and rhinoceros horn. The Court of Appeal ruled that section 2022 is not unconstitutionally vague. (C.A. 2nd, November 1, 2018.)
Government
Bacilio v. City of Los Angeles (2018) _ Cal.App.5th _ , 2018 WL 5292224: The Court of Appeal affirmed the trial court’s order denying petitioner’s petition for a writ of administrative mandamus against defendants seeking declaratory and injunctive relief vacating all adverse disciplinary findings against petitioner. The issue on appeal was when did the tolling period for a criminal investigation under Government Code section 3304(d)(2)(A) end? The Court of Appeal ruled that a criminal investigation is no longer pending—and section 3304(d)(2)(A)’s tolling period ends—when a final determination is made not to prosecute all of the public safety officers implicated in the misconduct at issue. Because the tolling period did not end until the Los Angeles County District Attorney officially rejected prosecution of all three officers investigated in this case, respondent’s investigation and discipline of petitioner was timely. (C.A. 2nd, October 25, 2018.)
Contractors State Licensing Bd. v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 5371787: See summary above under Contractors.
Save Lafayette Trees v. City of Lafayette (2018) _ Cal.App.5th _ , 2018 WL 5262888: See summary above under Environment.
Save Our Heritage Organisation v. City of San Diego (2018) _ Cal.App.5th _ , 2018 WL 5276402: See summary above under Environment.
Insurance
Thee Sombrero, Inc. v. Scottsdale Ins. Co. (2018) _ Cal.App.5th _ , 2018 WL 5292072: The Court of Appeal reversed the trial court’s order granting defendant summary judgment in a direct action by plaintiff against defendant, under Insurance Code section 11580(b)(2) after plaintiff had obtained a default judgment against defendant’s insured Crime Enforcement Services (CES). Plaintiff’s complaint against CES alleged that CES’s negligence caused a fatal shooting at a nightclub operated on plaintiff’s property pursuant to a conditional use permit (CUP), the shooting caused the revocation of the CUP and the issuance of a new CUP allowing the property to be used only as a banquet hall, which caused a diminution in value of the property. The trial court ruled that plaintiff’s claim against CES was for an economic loss rather than for property damage covered under the policy. The Court of Appeal disagreed, holding that plaintiff’s loss of the ability to use the property as a nightclub constituted property damage, which was defined in the policy as including a loss of use of tangible property. (C.A. 4th, October 25, 2018.)
Labor
Raam Construction, Inc. v. Occupational Safety and Health etc. (2018) _ Cal.App.5th _ , 2018 WL 4660283: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend by respondent Division of Occupational Safety and Health, and granting a motion to dismiss by respondent Occupational Safety and Health Appeals Board (Appeals Board), in a petition for writ of mandate seeking to overturn a citation issued against petitioner. The petition was untimely because it was filed 35 days after the Appeals Board denied petitioner’s motion for reconsideration, not within 30 days as required by Labor Code section 6627. (C.A. 1st, filed September 28, 2018, published October 25, 2018.)
Probate
Schwan v. Permann (2018) _ Cal.App.5th _ , 2018 WL 5292219: The Court of Appeal affirmed in part and reversed in part the rulings of the probate court. The Court of Appeal found that substantial evidence supported the probate court’s finding that two beneficiaries were excused from the trust requirement of employment by the decedent’s company, Control Master Products (Control), because decedent’s decision to sell the company before his death excused any further performance. The Court of Appeal reversed and remanded for more factual determinations as to another beneficiary who had stopped working at decedent’s company before it was sold, but who did some work for decedent after he changed the name of Control to Custom Model Products after Control was sold. The Court of Appeal affirmed the probate court’s ruling that a bequest to Walter Youngman, decedent’s attorney and friend, was disqualified under Probate Code section 21380(a). (C.A. 1st, October 25, 2918.)
Real Property
Bear Creek Master Assn. v. Southern Cal. Investors, Inc. (2018) _ Cal.App.5th _ , 2018 WL 5659789: The Court of Appeal reversed the trial court’s order granting judgment on the pleadings to defendant on the basis that its 2013 recorded deed of trust had priority over the 2014 recorded assessment of plaintiff. The Court of Appeal ruled that plaintiff’s assessment lien had priority over defendant’s previously-recorded third deed of trust pursuant to the priority and subordination provisions of the covenants, conditions, and restrictions governing the golf course property. (C.A. 2nd, filed October 19, 2018, published October 31, 2018.)
Save Our Heritage Organisation v. City of San Diego (2018) _ Cal.App.5th _ , 2018 WL 5276402: See summary above under Environment.
Taxes
MCI Communications etc. v. Cal. Dept. of Tax and Fee Admin. (2018) _ Cal.App.5th _ , 2018 WL 4561315: The Court of Appeal affirmed the trial court’s order sustaining defendant’s demurrer, without leave to amend, to plaintiff’s complaint seeking a tax refund. The Court of Appeal ruled that Revenue & Taxation Code section 6016.5 excludes from taxation only fully installed and completed telephone and telegraph lines from sales and use taxation, not the pre-installation component parts of such lines. (C.A. 4th, filed September 24, 2018, published October 24, 2018.)
Torts
Marteney v. Elementis Chemicals Inc. (2018) _ Cal.App.5th _ , 2018 WL 5689151: See summary above under Civil Procedure.
Trade Secrets
AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018) _ Cal.App.5th _ , 2018 WL 5669154: See summary above under Business.
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