By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee at ADR Services, Inc.
For ADR scheduling contact: Kelsey@adrservices.org
Web: http://montymcintyre.com/mcintyre
Civil Trial Lawyer | ABOTA National Board Member | Ca. attorney since 1980
Phone: (619) 990-4312 | Email: monty@montymcintyre.com
CALIFORNIA SUPREME COURT
Employment (Whistleblower Protection)
Shaw v. Superior Court (2017) _ Cal.5th _ , 2017 WL 1315681: The California Supreme Court affirmed in part and reversed in part the ruling of the Court of Appeal in an action for wrongful termination and violation of Health and Safety Code section 1278.5(g). The California Supreme Court ruled that a trial court ruling denying a request for a jury trial in a civil action is reviewable before trial by a petition for an extraordinary writ, and there is no statutory right to a jury trial for retaliatory termination under the Health and Safety Code 1278.5(g). However, Health and Safety Code section 1278.5(m) preserves a plaintiff’s right to a jury trial for wrongful termination in violation of public policy authorized under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167. (April 10, 2017.)
Trial
Shaw v. Superior Court (2017) _ Cal.5th _ , 2017 WL 1315681: See the summary above under Employment.
CALIFORNIA COURTS OF APPEAL
Attorneys (Attorney-Client Privilege, Disqualification)
McDermott Will & Emery v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 1382132: The Court of Appeal denied a writ petition seeking to overturn the trial court’s ruling that a client did not waive the attorney-client privilege in disclosing an attorney-client communication to his sister-in-law, and its order disqualifying the law firm Gibson, Dunn & Crutcher LLP (Gibson Dunn) from representing defendants/petitioners McDermott Will & Emery LLP and Jonathan C. Lurie because Gibson Dunn’s attorneys failed to notify the client or the client’s attorney that counsel had obtained a copy of the communication, reviewed and analyzed the communication, and used it in the lawsuit. The trial court properly found the client did not waive the attorney-client privilege by forwarding a confidential e-mail he received from his personal attorney to his sister-in-law because he inadvertently and unknowingly forwarded the e-mail from his iPhone and lacked the necessary intent to waive the privilege. The trial court also properly ruled that Gibson Dunn had an ethical obligation to return the privileged material and refrain from using it under State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644. (C.A. 4th, April 18, 2017.)
Civil Code (Fraudulent Transfers)
Nautilus, Inc. v. Yang (2017) _ Cal.App.5th _ , 2017 WL 1422602: Although the Court of Appeal found that the trial court had misapplied the burden of proof for the good faith defense to a fraudulent transfer claim, it affirmed the trial court’s judgment for certain defendants following a bench trial. Given the facts of the case, under the correct burden of proof and legal principles the good faith defense was established. The Court of Appeal ruled that a transferee cannot benefit from the good faith defense if that transferee had fraudulent intent, colluded with a person who was engaged in the fraudulent conveyance, actively participated in the fraudulent conveyance, or had actual knowledge of facts showing knowledge of the transferor’s fraudulent intent. The trial court properly granted equitable subrogation to an innocent reverse mortgage transferee, making a portion of the mortgage senior to the judgment creditor’s abstract of judgment even though the mortgage was recorded after the abstract of judgment. The Court of Appeal also affirmed the trial court’s equitable grant of priority to the judgment creditor’s judgment as against a portion of the reverse mortgage that the fraudulent transferee (the father of the judgment debtor) had taken out on the property. (C.A. 4th, April 21, 2017.)
Civil Procedure (Anti-SLAPP, CCP §473, CCP §1161)
Baranchik v. Fizulich (2017) _ Cal.App.5th _ , 2017 WL 1399708: The Court of Appeal affirmed the trial court’s orders granting a motion to strike plaintiff Eric Baranchik’s cause of action for malicious prosecution, and granting summary judgment for defendants on plaintiff Eric Baranchik’s excessive force claim and plaintiff Phillip Baranchik’s false arrest claim. After the arrests and criminal prosecutions of plaintiffs, this civil action was filed under 42 U.S.C. section 1983 alleging several causes of action. The trial court properly granted the motion to strike and summary judgment. (C.A. 2nd, April 19, 2017.)
Epps v. Lindsey (2017) _ Cal.App.5th Supp. _ : The Appellate Division of the San Bernardino County Superior Court affirmed the trial court’s order granting summary judgment to plaintiffs in an unlawful detainer action. Bank of America purchased the property during an April 2015 foreclosure sale. The parents of plaintiff Joshua Epps purchased the property, on behalf of plaintiffs, at an online auction in August 2015. The property was transferred the following month to plaintiffs who plan on using the property as their primary residence. The trial court properly granted summary judgment to plaintiffs on the basis that plaintiffs were successors in interest under Code of Civil Procedure section 1161b.7, they therefore had no obligation to honor a lease with defendant, and defendant had failed to vacate the premises 90 days after being served a 90-day notice to quit. (Appellate Division of the San Bernardino County Superior Court, April 11, 2017.)
Quigley v. Garden Valley (2017) _ Cal.App.5th _ , 2017 WL 1399720: See summary below under Torts.
Jackson v. Mayweather (2017) _ Cal.App.5th _ , 2017 WL 1131869: The Court of Appeal reversed, in part, the trial court’s denial of former boxing champion defendant’s anti-SLAPP motion to strike plaintiff’s complaint alleging invasion of privacy (both public disclosure of private facts and false light portrayal), defamation and intentional and negligent infliction of emotional distress against defendant. The Court of Appeal reversed the trial court with respect to plaintiff’s claims for defamation, false light portrayal, and public disclosure of private facts based on defendant’s comments about plaintiff’s cosmetic surgery because plaintiff failed to demonstrate a probability of prevailing on those claims. (C.A. 2nd, filed March 27, 2017, published April 19, 2017.)
Sumrall v. Modern Alloys, Inc. (2017) _ Cal.App.5th _ , 2017 WL 1365089: See summary below under Torts.
Tepper v. Wilkins (2017) _ Cal.App.5th _ , 2017 WL 1398496: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to the first amended complaint alleging elder abuse. Plaintiff sued her three siblings and claimed that their actions while serving as trustees of their mother’s revocable living trust constituted financial abuse of an elder or dependent adult. Plaintiff affirmatively stated in her amended complaint and on appeal that she did not seek appointment as her mother’s conservator or guardian ad litem, and plaintiff did not have her mother’s consent to pursue the action on her behalf through a power of appointment. In this case the cause of action for elder financial abuse belonged to the mother as the real party in interest. The trial court properly found that plaintiff lacked standing. (C.A. 2nd, April 19, 2017.)
Urban Wildlands Group v. City of Los Angeles (2017) _ Cal.App.5th _ , 2017 WL 1366938: The Court of Appeal reversed the trial court’s order granting mandatory relief under Code of Civil Procedure section 473(b) in a petition for writ of mandate challenging defendant’s finding that a project was exempt from formal environmental review under the California Environmental Quality Act. Plaintiff never lodged the administrative record, the trial court found in defendant’s favor and entered judgment, and the trial court later granted mandatory relief under section 473(b). The Court of Appeal ruled that the mandatory relief provision in section 473(b) applies only to a default, a default judgment, or a dismissal, so the trial court erred by granting mandatory relief under section 473(b). (C.A. 2nd, April 13, 2017.)
Contracts
Applied Medical Corp. v. Thomas (2017) _ Cal.App.5th _ , 2017 WL 958320: The Court of Appeal affirmed in part and reversed in part the trial court’s order granting summary judgment to defendants in an action arising from the objection by defendant T. Peter Thomas (Thomas) to plaintiff’s exercise of its right to repurchase shares of its stock issued to defendant Thomas as part of certain stock incentive plans. The Court of Appeal affirmed the trial court’s summary judgment to all fraud based causes of action on statute of limitations grounds, but found that the trial court erred in granting summary judgment on the breach of contract, conversion, and aiding and abetting conversion causes of action. The Court of Appeal ruled that there was a disputed issue of fact as to whether Thomas breached an implied reasonableness requirement in the contract, and it held that a conversion claim may be based on either ownership or the right to possession at the time of conversion. (C.A. 1st, filed March 13, 2017, partially published April 12, 2017.)
Elder Abuse
Tepper v. Wilkins (2017) _ Cal.App.5th _ , 2017 WL 1398496: See summary above under Civil Procedure.
Employment
Featherstone v. Southern California Permanente Medical Group (2017) _ Cal.App.5th _ , 2017 WL 1399709: The Court of Appeal affirmed the trial court’s summary judgment for defendant in an action alleging that defendant violated the Fair Employment and Housing Act (FEHA) (Government Code, section 12940 et seq.) and public policy when it declined to rescind her resignation that she claimed had occurred when she was under a “temporary” disability as a result of a relatively uncommon side effect of medication she was taking. The Court of Appeal affirmed because defendant’s refusal to allow plaintiff to rescind her resignation was not an adverse employment action under the FEHA, and plaintiff failed to raise a triable issue of fact as to whether defendant’s employees who accepted and promptly processed her resignation knew of her alleged temporary disability at the time they took those actions. (C.A. 2nd, April 19, 2017.)
Ethics (Disqualification)
McDermott Will & Emery v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 1382132: See summary above under Attorneys.
Evidence (Attorney-Client Privilege)
McDermott Will & Emery v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 1382132: See summary above under Attorneys.
Government (Meyers-Milias-Brown Act, Permits)
Boling v. Public Employment Relations Board (2017) _ Cal.App.5th _ , 2017 WL 1326317: This case arose from voter approval in 2012 of a citizen-sponsored initiative called the “Citizens Pension Reform Initiative” (CPRI) which adopted a charter amendment mandating changes in the pension plan for employees of City of San Diego (City). The Court of Appeal granted a petition for extraordinary relief and annulled the decision of the Public Employment Relations Board (PERB) that had concluded that the City of San Diego (City) was required to satisfy the meet-and-confer obligations imposed by People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591 (Seal Beach) for this ballot proposal and found that former mayor Jerry Sanders (Sanders) and the San Diego City Council (City Council) had committed an unfair labor practice by declining to meet and confer. The Court of Appeal ruled that the meet-and-confer obligations under the Meyers-Milias-Brown Act (Government Code, section 3500 et seq.) have no application when a proposed charter amendment is placed on the ballot by citizen proponents through the initiative process, but apply only to proposed charter amendments placed on the ballot by the governing body of a charter city. The PERB erred in finding the City was required to satisfy the meet-and-confer obligations, and erred in finding that Sanders and the City Council had committed an unfair labor practice. (C.A. 4th, April 11, 2017.)
Citizens for Beach Rights v. City of San Diego (2017) _ Cal.App.5th _ , 2017 WL 1150683: The Court of Appeal reversed the trial court’s order granting a writ petition and issuing a permanent injunction preventing further construction of a new lifeguard station at Mission Beach without a new Site Development Permit (SDP). The original SDP was issued in 2006 and stated that failure to utilize the permit within 36 months of its issuance would automatically void the permit. Respondent did not start actual construction until 2015 as a result of delays caused by attempts to get a California Coastal Commission permit and financial difficulties it was struggling with. Construction began in April 2015 and stopped for the summer construction moratorium. Petitioner filed its writ proceeding in August 2015. The Court of Appeal ruled that the action was barred by the applicable 90-day statute of limitations periods in San Diego Municipal Code section 121.0102 and Government Code section 65009. The Court of Appeal also held that, even if petitioner’s claims had been timely pursued, the SDP remained valid when construction began. (C.A. 4th, filed March 28, 2017, published April 20, 2017.)
Legal Malpractice
Broadway Victoria v. Norminton, Wiita & Fuster (2017) _ Cal.App.5th _ , 2017 WL 1398470: The Court of Appeal affirmed the trial court’s order granting a motion for nonsuit against claims for legal malpractice and breach of fiduciary duty. The Court of Appeal also affirmed the jury’s verdict for defendants on plaintiff’s remaining malpractice claim that defendants negligently failed to seek clarification of plaintiff’s rights in the bankruptcy court. On the malpractice claim, the Court of Appeal ruled that, because a claim for malpractice against a prior law firm would not have been reasonably apparent to defendants under the circumstances, defendants did not have a duty to advise plaintiff of such a claim. The Court of Appeal ruled there was no breach of fiduciary claim separate from the malpractice claim because plaintiff did not make out a claim for breach of fiduciary duty based on the failure to advise plaintiff of a bankruptcy court option. Because the breach of fiduciary duty claim arose from the same facts and sought the same relief as the legal malpractice claim, the claim for breach of fiduciary duty was duplicative and was properly dismissed. (C.A. 2nd, April 19, 2017.)
Professional Conduct (Disqualification)
McDermott Will & Emery v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 1382132: See summary above under Attorneys.
Real Property (CEQA, Permits)
Citizens for Beach Rights v. City of San Diego (2017) _ Cal.App.5th _ , 2017 WL 1150683: See summary above under Government.
Epps v. Lindsey (2017) _ Cal.App.5th Supp. _ : See summary above under Civil Procedure.
Sierra Club v. County of Sonoma (2017) _ Cal.App.5th Supp. _ , 2017 WL 1422533: The Court of Appeal affirmed the trial court’s denial of a writ petition seeking to challenge a permit issued by respondent that allowed property owners to establish a vineyard on property they had been using for grazing. Petitioners challenged the determination that issuing the permit was a ministerial act and therefore exempt from the California Environmental Quality Act, Public Resources Code section 21000 et seq. The Court of Appeal held that, although the ordinance might allow the Agricultural Commissioner of Sonoma County (Commissioner) to exercise discretion when issuing erosion-control permits in some circumstances, petitioners failed to show that the Commissioner improperly determined that issuing the permit in question was ministerial. (C.A. 1st, April 21, 2017.)
Urban Wildlands Group v. City of L.A. (2017) _ Cal.App.5th _ , 2017 WL 1366938: See summary above under Civil Procedure.
Torts (Immunity, Respondeat Superior)
Applied Medical Corp. v. Thomas (2017) _ Cal.App.5th _ , 2017 WL 958320: See summary above under Contracts.
Quigley v. Garden Valley (2017) _ Cal.App.5th _ , 2017 WL 1399720: The Court of Appeal affirmed the trial court’s order granting a motion for nonsuit in an action for serious personal injuries suffered by a firefighter when a water truck ran over her as she slept at the fire base camp. The trial court properly ruled that the action was barred by Government Code section 850.4 and the common law firefighter’s rule. (C.A. 3rd, April 19. 2017.)
Sumrall v. Modern Alloys, Inc. (2017) _ Cal.App.5th _ , 2017 WL 1365089: The Court of Appeal reversed the trial court’s summary judgment in a personal injury case where the issue was whether the employee was acting within the scope of his employment when the accident happened as he drove to his employer’s yard. Defendant employer expected the employee to first commute to the company’s “yard,” and then drive a company truck from the yard to the jobsite. The Court of Appeal found there was a material triable issue of fact as to whether the workplace was the company yard or the jobsite, and the finding on this issue would determine employer liability under CACI No. 3724. The Court of Appeal reversed the trial court because it could not say as a matter of law that the employee was not on a business errand while commuting from his home to the employer’s yard. (C.A. 4th, April 13, 2017.)
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