California Case Summaries Civil™: 6-5-17 to 6-16-17

Summaries of Every New Published California Civil Case
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

Civil Code

Scher v. Burke (2017) _ Cal.5th _ , 2017 WL 2589509: The California Supreme Court affirmed the Court of Appeal’s holding that Civil Code section 1009(b), which limits the circumstances in which courts may find implied dedication of private coastal property section 1009, unambiguously bars all public use, not just recreational use, from developing into an implied public dedication. (June 15, 2017.)

Civil Procedure

Ryan v. Rosenfeld (2017) _ Cal.5th _ , 2017 WL 2589515: The California Supreme Court vacated the Court of Appeal’s dismissal of an appeal from a motion to vacate a judgment under Code of Civil Procedure section 663. An order denying a motion under section 663 is appealable even if it raises issues that could have been litigated via an appeal of the judgment. The rule announced in Bond v. United Railroads (1911) 159 Cal. 270, 273 is still valid. (June 15, 2017.)

Weatherford v. City of San Rafael (2017) _ Cal.5th _ , 2017 WL 2417763: The California Supreme Court reversed the trial court’s judgment of dismissal of plaintiff’s action under Code of Civil Procedure section 526a because plaintiff had not paid property tax. The California Supreme Court ruled that, for a person to have standing to sue the government for wasteful or illegal expenditures under section 526a, it is sufficient for a plaintiff to allege she or he has paid, or is liable to pay, to the defendant locality a tax assessed on the plaintiff by the defendant locality. (June 5, 2017.)

Employment

Augustus v. ABM Security Services (2017) 2 Cal.5th 257: The conclusion of the decision, previously published on December 22, 2016, was modified to state: “California law requires employers to relieve their employees of all work-related duties and employer control during 10-minute rest periods. The trial court’s summary adjudication and summary judgment orders were premised on this understanding of the law. Rightly so: Wage Order 4, subdivision 12(A) and section 226.7 prohibit on-duty rest periods. What they require instead is that employers relinquish any control over how employees spend their break time, and relieve their employees of all duties—including the obligation that an employee remain on call. A rest period, in short, must be a period of rest. We accordingly reverse the Court of Appeal’s judgment on this issue. The matter is remanded to the Court of Appeal for further proceedings consistent with this opinion.” (June 8, 2017.)

Real Property

Scher v. Burke (2017) _ Cal.5th _ , 2017 WL 2589509: See summary above under Civil Code.

Taxes

Williams & Fickett v. County of Fresno (2017) _ Cal.5th _ , 2017 WL 2417300: The California Supreme Court ruled that, when an assessment on nonexempt property is challenged on the ground that the taxpayer does not own the property involved, a taxpayer must first apply to the local board of equalization for assessment reduction under Revenue and Taxation Code section 1603 and file an administrative tax refund claim under section 5097, or obtain a stipulation under section 5142(b) that such proceedings are unnecessary, in order to maintain a postpayment superior court action under section 5140 that seeks reduction of the tax. (June 5, 2017.)

CALIFORNIA COURTS OF APPEAL

Arbitration

Hutcheson v. Eskaton Fountainwood Lodge (2017) _ Cal.App.5th _ , 2017 WL 2570672: The Court of Appeal affirmed the trial court’s order denying a motion to compel arbitration. The Court of Appeal ruled that admission of decedent to a residential care center for the elderly was a health care decision, and the attorney-in-fact who admitted her, acting under the Power of Attorney Law (Prob. Code, section 4000 et seq. (PAL)), was not authorized to make health care decisions on behalf of the principal. Because the attorney-in-fact acting under the PAL did not have authority to admit the principal to the residential care facility for the elderly, her execution of the admission agreement and its arbitration clause were void. (C.A. 3rd, June 14, 2017.)

Laymon v. J. Rockcliff, Inc. (2017) _ Cal.App.5th _ , 2017 WL 2242954: The Court of Appeal reversed the trial court’s order denying arbitration under two arbitration agreements and compelling arbitration under one arbitration agreement. Two sets of plaintiffs filed two materially identical class action lawsuits against several real estate brokers (broker defendants) and a group of title companies and other service providers (service provider defendants) alleging improper conduct by the broker defendants in getting unreported payments from the service provider defendants. Each of the broker defendants represented one or more of the plaintiffs in connection with the sale of his or her home. Defendants brought motions to compel arbitration based upon three arbitration agreements, a Residential Listing Agreement (RLA), the 2007 version of a form Residential Purchase Agreement (2007 RPA), and the 2010 version of a Residential Purchase Agreement (2010 RPA). The Court of Appeal ruled that the plaintiffs who executed the RLA were required to arbitrate their claims, and because every plaintiff initialed an arbitration clause either in the RLA or the 2007 RPA they were required to arbitrate. The Court of Appeal also ruled that the trial court’s order compelling arbitration under the 2010 RPA was not appealable. (C.A. 1st, filed May 23, 2017, published June 9, 2017.)

Civil Procedure

Brenner v. Universal Health etc. (2017) _ Cal.App.5th _ , 2017 WL 2464959: See summary below under Elder Abuse.

Casiopea Bovet, LLC v. Chiang (2017) _ Cal.App.5th _ , 2017 WL 2131421: The Court of Appeal affirmed the trial court’s order granting a motion for judgment on the pleadings. The trial court properly ruled that plaintiff could not claim escheated property under the Unclaimed Property Law (Code of Civil Procedure, section 1500 et seq.) as an assignee of Financial Title Company (Financial Title) because Financial Title was a suspended corporation (Revenue & Tax. Code, section 23301), which lacked legal capacity to prosecute an action. (C.A. 4th, filed May 17, 2017, published June 7, 2017.)

Hilliard v. Harbour (2017) _ Cal.App.5th _ , 2017 WL 2376338: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend because the elder abuse plaintiff lacked standing to sue. The fraudulent misrepresentations of defendants alleged in the complaint were not designed to induce plaintiff to create a corporate entity, but to induce conduct on the part of the James Crystal Companies (the Companies): a limited liability company he controlled that already existed whose assets consisted of corporations and limited liability companies that also already existed. Plaintiff lacked standing because his claim was derivative of that of the Companies. (C.A. 1st, filed June 1, 2017, published June 16, 2017.)

The Rossdale Group v. Walton (2017) _ Cal.App.5th _ , 2017 WL 2590692: The Court of Appeal reversed the trial court’s order granting defendant’s motion to dismiss a complaint for malicious prosecution under Code of Civil Procedure section 367 on the basis that plaintiff lacked capacity to sue because it was merely a fictitious business name. The Court of Appeal observed that a motion under section 367 is a plea in abatement that must be raised at the first opportunity, by a demurrer on in the answer. If an event causing lack of capacity occurs after the time to demurrer or answer, the defendant needs to file a motion to amend its answer. Defendant did not do this. The Court of Appeal ruled that section 367 does not provide a federal-style standing requirement, the suspension of a corporate entity’s status does not implicate standing (as opposed to capacity), and neither section 367 nor the concept of standing prohibited plaintiff from pursuing its case under a fictitious name. (C.A. 6th, June 15, 2017.)

Class Actions

Plantier v. Ramona Municipal Water District (2017) _ Cal.App.5th _ , 2017 WL 2554460: The Court of Appeal reversed the trial court’s judgment for defendant on the basis that the class action plaintiffs had failed to exhaust their administrative remedies under article XIII D of the California Constitution in connection with their substantive challenge to the method used by defendant to calculate wastewater service fees or charges between about 2012 and 2014. The Court of Appeal ruled that plaintiffs’ class action was not barred by their failure to exhaust the administrative remedies because plaintiffs’ substantive challenge involving the method used by defendant to calculate its wastewater service fees or charges was outside the scope of the administrative remedies, and because, under the facts of the case, those remedies were inadequate. (C.A. 4th, June 13, 2017.)

Contractors

Phoenix Mechanical Pipeline v. Space Exploration Technologies Corp. (2017) _ Cal.App.5th_, 2017 WL 2544856: The Court of Appeal affirmed in large part the trial court’s order sustaining a demurrer without leave to amend because plaintiff failed to allege it was a licensed contractor. However, in light of the liberal pleading standards applicable at this stage of the litigation, the Court of Appeal held that plaintiff had adequately alleged that some of the services it provided did not require a contractor’s license, and reversed in part and remanded to provide an opportunity for plaintiff to amend its complaint to allege claims for noncontractor services only. (C.A. 2nd, June 13, 2017.)

Constitution

Plantier v. Ramona Municipal Water District (2017) _ Cal.App.5th _ , 2017 WL 2554460: See summary above under Class Actions.

Corporations

Casiopea Bovet, LLC v. Chiang (2017) _ Cal.App.5th _ , 2017 WL 2131421: See summary above under Civil Procedure.

Hilliard v. Harbour (2017) _ Cal.App.5th _ , 2017 WL 2376338: See summary above under Civil Procedure.

Elder Abuse

Brenner v. Universal Health etc. (2017) _ Cal.App.5th _ , 2017 WL 2464959: The Court of Appeal affirmed the trial court’s order granting summary judgment in an action for wrongful death based on medical negligence, retaliation in violation of Health and Safety Code section 1278.5, and elder abuse in violation of Welfare and Institutions Code sections 15610, et seq. The trial court properly granted summary adjudication of the claims for wrongful death based on medical negligence because there was no triable issue of fact regarding the element of causation. The Court of Appeal ruled that section 1278.5 does not create a claim against individual doctors. Section 1278.5(b) does not permit an individual who is not a patient and not an employee, member of the medical staff, or other health care worker at the facility, but who has complained on behalf of a patient, to bring a claim for discrimination or retaliation. Moreover, the statute does not protect a patient from alleged “retaliation” resulting from complaints made by persons other than those identified in the statute. Finally, plaintiff’s expert declaration was insufficient to create a triable issue of fact with respect to the elder abuse cause of action. (C.A. 4th, June 7, 2017.)

Hilliard v. Harbour (2017) _ Cal.App.5th _ , 2017 WL 2376338: See summary above under Civil Procedure.

Employment

Kao v. Joy Holiday (2017) _ Cal.App.5th _ , 2017 WL 2590653: The Court of Appeal reversed the trial court’s judgment concluding that plaintiff was not protected by the wage statutes and was only entitled to quantum meruit compensation. The Court of Appeal held that plaintiff was entitled to compensation under the wage statutes, remanded to the trial court for entry of judgment in favor of plaintiff on his statutory wage claims and ordered the trial court to calculate the unpaid wages and overtime pay, damages for failing to provide itemized wage statements, waiting time penalties, prejudgment interest, costs of suit and reasonable attorney fees. (C.A. 1st, June 15, 2017.)

Government

City of Big Bear Lake v. Cohen (2017) _ Cal.App.5th _ , 2017 WL 2570018: The Court of Appeal affirmed the trial court’s writ of mandate judgment finding that the contested transactions by petitioner did not create enforceable obligations of the former redevelopment agency, the Dissolution Law’s (Assembly Bill 1X 26) invalidation of sponsor agreements (agreements between a city and its former redevelopment agency) did not violate the California Constitution, and it was irrelevant that petitioner claimed it no longer possessed the funds it received from the former redevelopment agency. However, the Court of Appeal ruled that, consistent with the decision in City of Bellflower v. Cohen (2016) 245 Cal.App.4th 438, the statutory remedy of offsetting petitioner’s sales, use, and property taxes to capture the $2.6 million was unconstitutional, and it modified the trial court’s judgment to the extent it found the proposed sales, use, and property tax offsets constitutional. (C.A. 3rd, June 14, 2017.)

DiCarlo v. County of Monterey (2017) _ Cal.App.5th _ , WL 2265098: The Court of Appeal affirmed the trial court’s orders granting a motion for summary judgment and a motion for judgment on the pleadings in an action were petitioners sought to compel the county to report a longevity performance stipend to CalPERS and to compel CalPERS to include the longevity performance stipend in calculating their retirement benefits. The Court of Appeal ruled that the longevity performance stipend did not qualify as an item of special compensation that must be reported to CalPERS and included in the calculation of plaintiffs’ retirement benefits. (C.A. 6th, filed May 24, 2017, published June 5, 2017.)

Medical Malpractice

Brenner v. Universal Health etc. (2017) _ Cal.App.5th _ , 2017 WL 2464959: See summary above under Elder Abuse.

Probate

Hutcheson v. Eskaton Fountainwood Lodge (2017) _ Cal.App.5th _ , 2017 WL 2570672: See summary above under Arbitration.

Real Property

Black Sky Capital v. Cobb (2017) _ Cal.App.5th _ , 2017 WL 2569710: The Court of Appeal reversed the trial court’s order granting summary judgment for defendants on the grounds that Simon v. Superior Court (1992) 4 Cal.App.4th 63 (Simon) and Code of Civil Procedure section 580d prohibits a party holding both a senior and a junior lien on real property from both conducting a trustee’s sale after default on the senior note and obtaining a monetary judgment for the balance owing on the note secured by the junior lien. The Court of Appeal ruled that neither the rule enunciated in Simon nor section 580d applied under the circumstances of the case. (C.A. 4th, June 13, 2017.)

Grist Creek Aggregates v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 1279388: The Court of Appeal granted a writ petition challenging the trial court’s order sustaining a demurrer by petitioner. The tie vote of the Hearing Board of the Mendocino County Air Quality Management District (District) resulted in the denial of an administrative appeal by Friends of Outlet Creek who were challenging the approval by the District of the application by petitioner for a permit to construct a Crumb Rubber Heating and Blending Unit for the production of rubberized asphalt. The denial of the administrative appeal was subject to judicial review. (C.A. 1st, filed April 26, 2017, published June 15, 2017.)

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