California Case Summaries: Monthly™
Every California Civil & Family Law Case Published in April 2019
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
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CALIFORNIA SUPREME COURT
Employment
Melendez v. S.F. Baseball Associates LLC (2019) _ Cal.5th _ , 2019 WL 1848722: The California Supreme Court reversed the judgment of the Court of Appeal finding that a wage and hour action by security guards at what is now named Oracle Park in San Francisco was preempted by section 301 of the Labor Management Relations Act, 29 United States Code, section 185(a). The California Supreme Court ruled that the lawsuit did not require interpretation of the collective bargaining agreement (agreement) between the guards’ union and the San Francisco Giants. Although the agreement might be relevant to the lawsuit and might need to be consulted to resolve it, the Supreme Court ruled that the dispute would be decided on the interpretation of state law, the meaning of “discharge” under Labor Code section 201, rather than an interpretation of the agreement. Because no party had identified any provision of the agreement whose meaning was uncertain and required interpretation to resolve plaintiffs’ claim, the lawsuit was not preempted and state courts could decide it on the merits. (April 25, 2019.)
Government
T-Mobile West LLC v. City and County of S.F. (2019) _ Cal.5th _ , 2019 WL 1474847: The California Supreme Court affirmed the rulings of the Court of Appeal and the trial court holding that the City of San Francisco’s Ordinance 12-11 is not preempted by Public Utilities Code 7901 and does not violate section 7901.5. Neither the plain language of section 7901 nor the way it has been interpreted by courts and the Public Utilities Commission supported plaintiffs’ argument that the Legislature intended to preempt local regulation based on aesthetic considerations. Section 7901.1 only applies to temporary access during construction and installation of telephone lines and equipment. Because the City treated all entities similarly in that regard, there was no section 7901.1 violation. (April 4, 2019.)
CALIFORNIA COURTS OF APPEAL
Arbitration
Diaz v. Sohnen Enterprises (2019) _ Cal.App.5th _ , 2019 WL 1552361: The Court of Appeal reversed the trial court’s order denying a petition to compel arbitration in an action alleging workplace discrimination. Because plaintiff continued her employment, after notification that an agreement to arbitration was a condition of continued employment, plaintiff impliedly consented to the arbitration agreement. The record contained no evidence of surprise, nor of sharp practices demonstrating substantive unconscionability. Because plaintiff failed to specify, with appropriate citations to the record and relevant legal authority, any terms of the agreement that she believed were unconscionable, she waived any argument that the agreement was unenforceable. (C.A. 2nd, April 10, 2019.)
Oxford Preparatory Academy v. Edlighten Learning Solutions (2019) _ Cal.App.5th _ , 2019 WL 1760083: The Court of Appeal reversed the trial court’s order denying defendant’s petition to compel arbitration. Defendant entered into three contracts with plaintiff. One of the contracts was a management services agreement with an arbitration clause. The parties later entered into a termination agreement terminating all rights and obligations under the three contracts with the exception of two payment obligations. The Court of Appeal held the termination agreement did not supersede the arbitration clause for pretermination disputes. The case was reversed and remanded for the trial court to decide whether any of plaintiff’s causes of action fell within the scope of the arbitration clause. (C.A. 4th, April 22, 2019.)
Subcontracting Concepts (CT), LLC v. De Melo (2019) _ Cal.App.5th _ , 2019 WL 1552684: The Court of Appeal affirmed the trial court’s order denying a petition to compel arbitration and stay administrative wage claim proceedings. The trial court properly found the arbitration agreement was procedurally unconscionable and substantively unconscionable because of its numerous provisions seeking to evade statutory protections and limit the remedies available to respondent[1]. Because there was no single provision that could be stricken to remove the unconscionable taint from the agreement, the trial court did not abuse its discretion in concluding the arbitration clause could not be enforced. (C.A. 1st, April 10, 2019.)
Attorney Fees
Friends of Spring Street v. Nevada City (2019) _ Cal.App.5th _ , 2019 WL 1397041: The Court of Appeal reversed the trial court’s orders striking plaintiff’s memorandum of costs and motion for attorney fees. Plaintiff filed a writ petition and complaint for declaratory and injunctive relief challenging a determination by defendant that property owners were entitled to resume operation of a bed and breakfast in a residential district of defendant despite the fact that, years earlier, voters had passed an initiative measure repealing the provisions in defendant’s municipal code allowing such facilities. After losing in the trial court, plaintiff prevailed in the Court of Appeal. After returning to the trial court, plaintiff requested fees and costs as the prevailing party, and the trial court erred in striking these requests. Plaintiff was the prevailing party because it realized its primary litigation objective. Regarding fees, plaintiff was successful on an issue of public interest that resulted in a substantial benefit to city residents. On remand, the trial court was ordered to determine the amount of costs to be awarded to plaintiff under Code of Civil Procedure section 1032, and determine whether the necessity and financial burden of private enforcement rendered an attorney fee award appropriate and, if so, the amount to be awarded. (C.A. 3rd, filed March 28, 2019, published April 4, 2019.)
Key v. Tyler (2019) _ Cal.App.5th _ , 2019 WL 1748577: See summary below under Probate. SSL Landlord v. County of San Mateo (2019) _ Cal.App.5th _ , 2019 WL 1772024: The Court of Appeal affirmed the trial court’s order denying plaintiff’s motion for attorney fees under Revenue and Taxation Code sections 1611.6 and 5152. The trial court properly denied the motion for attorney fees. Because the San Mateo County Assessment Appeals Board’s resolution of plaintiff’s assessment appeals was neither arbitrary nor capricious, nor caused by a legal position taken in bad faith, no award of attorney fees was warranted under section 1611.6. The trial court made no finding, and the Court of Appeal saw no basis to make a finding, that the San Mateo County Assessor’s position was based on a belief that a tax law or regulation was unconstitutional or invalid either on its face or as applied in this case, so plaintiff was not entitled to an award of attorneys under section 5152. (C.A. 1st, April 23, 2019.)
Civil Code
Taniguchi v. Restoration Homes (2019) _ Cal.App.5th _ , 2019 WL 1923068: The Court of Appeal reversed the trial court’s order granting defendant’s motion for summary judgment in an action alleging defendant violated Civil Code section 2924c. The Court of Appeal ruled that, to cure a default and reinstate the loan under section 2924c, the borrowers need not pay the amount of an earlier default on the original loan (which had been deferred under a loan modification to the end of the loan term). They are only required to pay the missed modified monthly payments that caused a default on the modified loan. (C.A. 1st, April 30, 2019.)
Civil Procedure
Brown v. Pacifica Foundation, Inc. (2019) _ Cal.App.5th _ , 2019 WL 1894936: The Court of Appeal reversed the trial court’s order granting plaintiff’s request for an injunction and reinstating plaintiff to positions on the board of a local public radio station of defendant as well as the national board of directors of defendant. Plaintiff had been removed from her board positions because defendant’s bylaws prohibited individuals from serving in board positions while they hold any public office, and plaintiff was a Los Angeles Small Business Commissioner. The Court of Appeal ruled held that California does not recognize a single legal definition of the term “public office” and the trial court erred in concluding that the term public office has but one legal definition. (C.A. 1st, April 29, 2019.)
Du-All Safety, LLC v. Superior Court (2019) _ Cal.App.5th _ , 2019 WL 1746782: The Court of Appeal granted a petition for writ of mandate directing the trial court to reverse its order excluding experts listed by defendant on its supplemental expert list in an action for serious personal injuries. Defendant originally listed two experts, but plaintiff’s original expert list had seven experts. Defendant’s supplemental expert exchange listed five additional experts. The trial court erred in striking defendant’s supplemental experts because defendant properly complied with the discovery statutes. (C.A. 1st, April 18, 2019.)
Ryze Claim Solutions LLC v. Superior Court (2019) _ Cal.App.5th _ , 2019 WL 1467947: The Court of Appeal granted a peremptory writ of mandate directing the trial court to vacate its order denying defendant’s motion to stay or dismiss the action because it was filed in an improper forum. In 2014, petitioner, a company headquartered in Indiana, hired California resident Jerome Nedd to work for it in California. The employment agreement had a forum selection clause requiring that any action be filed in Indiana. After his termination, Mr. Nedd filed a California action alleging Fair Employment and Housing Act (FEHA; Government Code section 12900 et seq.) and other employment claims. The Court of Appeal ruled that the forum selection clause in the employment agreement was not unenforceable due to any statement of public policy in the FEHA. Moreover, Labor Code section 925(a) did not apply because the statute became effective on January 1, 2017 and the agreement was entered into in 2014. (C.A. 1st, April 3, 2019.)
Sonoma Media Investments, LLC v. Superior Court (2019) _ Cal.App.5th _ , 2019 WL 1219513: The Court of Appeal reversed the trial court’s order granting in part, denying in part, and continuing in part[2] an anti-SLAPP motion to strike (Code of Civil Procedure section 425.16) to a complaint alleging defamation, libel per se and false light invasion of privacy. The complaint was filed after a local newspaper published a series of five articles about substantial independent election expenditures made by one of the plaintiffs on behalf of three City Council candidates. The Court of Appeal ruled that the anti-SLAPP motion should have been granted because plaintiffs’ claims arose out of protected conduct, and plaintiffs failed to show a probability of prevailing on their claims. (C.A. 1st, filed March 15, 2019, published April 8, 2019.)
Workman v. Colichman (2019) _ Cal.App.5th _ , 2019 WL 1466957: The Court of Appeal affirmed the trial court’s order denying defendants’ anti-SLAPP motion to strike (Code of Civil Procedure section 425.16) in a complaint by a property owner against her neighbors alleging that the neighbors caused a sale to fall through by sending an email to the owner’s real estate agent claiming that defendants planned to make changes to their property that would destroy the view from plaintiff’s property. The trial court properly ruled that defendants failed to demonstrate that their actions were connected to a public issue. Information about the views from a private residence affecting only those directly interested in buying or selling that house is not an issue of public interest. (C.A. 2nd, April 3, 2019.)
Contracts
Brown v. Goldstein (2019) _ Cal.App.5th _ , 2019 WL 1620291: The Court of Appeal reversed the trial court’s order granting defendant’s motion for summary judgment in an action by plaintiff, a band, against its music publisher alleging breach of contract for failing to pay plaintiff a share of the royalties generated from public performances of plaintiff’s songs. The Court of Appeal ruled that the agreement in question was reasonably susceptible to plaintiff’s interpretation regarding the payment of performance royalties. Plaintiff’s proposed interpretation was also supported by their extrinsic evidence. The Court of Appeal finally ruled that plaintiff’s interpretation was more reasonable than defendant’s. (C.A. 2nd, filed March 27, 2019, published April 16, 2019)
Corporations
Summers v. Colette (2019) _ Cal.App.5th _ , 2019 WL 1594462: The Court of Appeal reversed the trial court’s order sustaining a demurrer, without leave to amend, on the basis that plaintiff lost standing to sue another director of a nonprofit public benefit corporation for self-dealing and other alleged misconduct after plaintiff was removed as a director. Deciding an issue of first impression, the Court of Appeal ruled that, because plaintiff had standing under Corporations Code sections 5142, 5223 and 5233 when the action was filed, she did not lose standing to maintain the action after she was removed as a director. The Court of Appeal also ruled that the trial court erred in not granting plaintiff leave to amend to add the Attorney General as an indispensable party. (C.A. 2nd, April 15, 2019.)
Education
Doe v. Westmont College (2019) _ Cal.App.5th _ , 2019 WL 1771631: The Court of Appeal affirmed the trial court’s order granting a petition for writ of administrative mandate overturning respondent’s decision to suspend petitioner for two years after a Student Conduct Panel (the Panel) determined that the evidence supported a claim of sexual assault against petitioner. The Court of Appeal found that the investigation and adjudication of the accusation was fatally flawed. Respondent did not provide petitioner with a fair hearing. It did not comply with its own policies and procedures. The Panel did not hear testimony from critical witnesses, yet relied on those witnesses’ prior statements to corroborate the accuser’s account or to impeach petitioner’s credibility. The Panel also withheld material evidence from petitioner, which its policies required it to turn over. As a result, petitioner was denied a meaningful opportunity to pose questions to his accuser and other witnesses on material disputed facts. (C.A. 2nd, April 23, 2019.)
Tanimura & Antle Fresh Foods v. Salinas Union High School Dist. (2019) _ Cal.App.5th _ , 2019 WL 1870722: The Court of Appeal reversed the trial court’s order granting a petition for writ of mandate by petitioner developer seeking a refund of school impact fees imposed by respondent upon a development by petitioner to house adult seasonal farmworkers employed by petitioner. The Court of Appeal ruled that the statutes governing the imposition of school impact fees do not require a school district to separately analyze the impact of a unique subtype of residential construction not contemplated in the statute. The Court of Appeal reversed the trial court because it concluded that respondent properly determined a reasonable relationship between the fee imposed and new residential construction, and respondent did not act arbitrarily in imposing the fee on the agricultural employee housing project. (C.A. 6th, April 26, 2019.)
Employment
Martinez v. Public Employees’ Retirement System (2019) _ Cal.App.5th _ , 2019 WL 1487326: The Court of Appeal affirmed the trial court’s order denying petitioner’s (a former state employee) writ petition challenging the denial of her disability application following the settlement of her termination for cause claim. The trial court properly ruled that Haywood v. American River Protection Dist. (1998) 67 Cal.App.4th 1292 (Haywood) and Smith v. City of Napa (2004) 120 Cal.App.4th 194 (Smith) set out the relevant law and were binding as stare decisis, and further concluded that In the Matter of Application for Disability Retirement of Vandergoot (2013) CalPERS Precedential Dec. No. 12–01 was a reasonable extension of Haywood and Smith and was entitled to substantial weight due to the agency’s area of expertise. (C.A. 1st, April 4, 2019.)
Ryze Claim Solutions LLC v. Superior Court (2019) _ Cal.App.5th _ , 2019 WL 1467947: See summary above under Civil Procedure.
Savea v. YRC Inc. (2019) _ Cal.App.5th _ , 2019 WL 1552686: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to plaintiff’s complaint alleging that defendant failed to provide the correct employer name and address on its wage statements as required by Labor Code section 226(a)(8). The Court of Appeal ruled that defendant did not violate section 226(a)(8) by providing its fictitious business name as the employer name on its wage statements or by providing an employer address that did not contain a mail stop code or ZIP+4 Code. (C.A. 1st, April 10, 2019.)
Family Law
Look v. Penovatz (2019) _ Cal.App.5th _ , 1513628: The Court of Appeal affirmed the trial court’s order denying plaintiff’s request for reimbursement, under Family Code section 3950, for funds he expended when the son of his girlfriend (mother) lived in his household. The child support order required the father to pay $400 a month to his ex-wife the mother. This was based upon the son living primarily with the father at the time of the order. The son later began living in the home of plaintiff and mother, but mother never made any request to change the child support order. The Court of Appeal ruled that Blair v. Williams (1927) 86 Cal.App.676 was still good law and, when there has been a judicial determination of the amount the father should pay for the support of his minor children, that amount is presumed to be just and reasonable until it is reversed or modified by a subsequent order of the court. (C.A. 6th, April 8, 2019.)
N.T. v. H.T. (2019) _ Cal.App.5th _ , 2019 WL 1348314: The Court of Appeal reversed the trial court’s order denying wife’s domestic violence restraining order (DVRO) against her husband. The trial court denied the DVRO on the ground that a technical violation of a temporary restraining order (TRO) was not an act of domestic violence. The Court of Appeal held that, for purposes of the Domestic Violence Prevention Act (DVPA; Family Code section 6200 et seq.), abuse includes behaviors that were enjoined by a TRO and is not limited to acts inflicting physical injury. (Fam. Code, section 6203.) On remand, the trial court was ordered to make necessary findings regarding whether the acts alleged by the wife actually occurred and, if they did, to enter the DVRO as requested. (C.A. 4th, filed March 26, 2019, published April 22, 2019.)
Government
National Asian American Coalition v. Newsom (2019) _ Cal.App.5th _ , 2019 WL 1449743: The Court of Appeal, reviewing the matter a second time after it was ordered by the California Supreme Court to reconsider its original order, reversed the trial court’s order declining to issue a writ of mandate ordering respondent to retransfer millions of dollars of funds back to the National Mortgage Settlement Deposit Fund (Fund). The Court of Appeal found that Government Code section 12531 was intended to effectuate the terms of the National Mortgage Settlement (NMS). It found that over $331 million was unlawfully diverted from the Fund for purposes inconsistent with the NMS (to offset General Fund expenditures), and specifically the former Attorney General’s general instructions regarding the use of the Fund. The Court of Appeal remanded the matter to the trial court with directions to issue a writ of mandate directing respondents, Gavin C. Newsom, Governor (successor to Edmund G. Brown, Jr.); Keely Bosler, Finance Director; and Betty Yee, Controller; to retransfer from the General Fund to the National Mortgage Settlement Deposit Fund the sum of $331,044,084. (C.A. 3rd, April 2, 2019.)
Point San Pedro Road Coalition v. County of Marin (2019) _ Cal.App.5th _ , 2019 WL 1055771: The Court of Appeal affirmed the trial court’s order granting petition for a writ of mandate compelling respondent to set aside Resolution No. 2015-108 allowing the importation of asphalt grindings to be processed on-site and used in the production of asphaltic concrete. The trial court properly ruled that Resolution No. 2015-108 was an impermissible extension, enlargement, or intensification of San Rafael Rock Quarry Inc.’s nonconforming use of the property in violation of respondent’s zoning ordinance. (C.A. 1st, filed March 6, 2019, published April 3, 2019.)
Poncio v. Dept. of Resources Recycling and Recovery (2019) _ Cal.App.5th _ , 2019 WL 1772601: The Court of Appeal affirmed the trial court’s order denying a petition for writ of administrative mandamus seeking to reverse the revocation by respondent of petitioner’s probationary certificate after petitioner’s husband attempted to bribe an employee of respondent assigned to audit petitioner’s recycling center. The trial court properly denied the writ petition. (C.A. 3rd, filed March 27, 2019, published April 23, 2019.)
SPRAWLDEF v. Dept. of Resources Recycling and Recovery (2019) _ Cal.App.5th _ , 2019 WL 1772032: The Court of Appeal affirmed the trial court’s order denying petitioner’s petition for a writ of administrative mandamus seeking to overturn the issuance of a revised permit for the Potrero Hills Landfill in Solano County. The Court of Appeal ruled that petitioner failed to preserve at all stages of the administrative proceedings its argument that the permit allowed expanded operations not in conformance with the countywide siting element of Solano County’s countywide integrated waste management plan. The former California Integrated Waste Management Board (Board) was not required to entertain the administrative appeal. To the extent the Board nevertheless addressed the merits, given the statutory language, petitioner failed to demonstrate reversible error. And, as to the open meeting law, even if closed session deliberations were improper, petitioner failed to show prejudice warranting the nullification remedy it sought. (C.A. 3rd, filed March 26, 2019, published April 22, 2019.)
TransparentGov Novato v. City of Novato (2019) _ Cal.App.5th _ , 2019 WL 1551701: The Court of Appeal affirmed the trial court’s order denying a writ petition seeking redress for alleged violations of California’s open-meeting law (the Brown Act; Government Code, section 54950 et seq.) at a December 2015 meeting of respondent’s City Council. The Court of Appeal ruled that petitioner did not demonstrate a justiciable controversy because respondent changed its practices in response to petitioner’s cease and desist letter, and therefore the trial court properly denied the petition. (C.A. 1st, April 10, 2019.)
Insurance
Komorsky v. Farmers Ins. Exchange (2019) _ Cal.App.5th _ , 2019 WL 990179: The Court of Appeal affirmed the trial court’s order granting defendants’ motion for judgment on the pleadings in an action where plaintiff alleged she was entitled to wrongful death coverage under the uninsured motorist coverage in an umbrella policy. Plaintiff’s deceased mother was insured under an automobile liability policy issued by Farmers Insurance Exchange (Farmers) and an umbrella policy issued by Truck Insurance Exchange (Truck), and both policies included uninsured motorist coverage. After plaintiff’s mother was killed by an uninsured motorist, plaintiff sought benefits under both policies. The trial court properly determined plaintiff was entitled to coverage under the Farmers policy as an heir of an insured pursuant to Insurance Code section 11580.2(a)(1), but under section 11580.2, plaintiff was not entitled to coverage under the Truck umbrella policy. (C.A. 2nd, filed March 1, 2019, published April 2, 2019.)
Western Heritage Ins. Co. v. Frances Todd, Inc. _ (2019) _ Cal.App.5th _ , 2019 WL 1011104: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment in a subrogation action brought by the carrier plaintiff. The trial court properly concluded the lease between the lessee defendants and the condominium owner they rented from contemplated that plaintiff’s policy would be for lessee defendants’ benefit. Finding the lease provisions in this case were strikingly similar to those in Parsons Manufacturing Corp. v. Superior Court (1984) 156 Cal.App.3d 1151, the trial court properly held the lease could only be interpreted to place on the lessor the burden of insuring for fire losses to the leased premises due to either lessor or lessee negligence. The lessee was therefore not responsible even if they negligently caused fire damages, and the insurer could not seek subrogation against the lessee. (C.A. 1st, filed March 4, 2019, published April 2, 2019.)
Landlord-Tenant
Chun v. Del Cid (2019) _ Cal.App.5th _ , 2019 WL 1872913: The Court of Appeal reversed the ruling of the Appellate Department of the Los Angeles Superior Court finding that the real property in question satisfied the definitional criteria of the single–family dwelling exemption to the Rent Stabilization Ordinance of the City of Los Angeles (Ordinance; Los Angeles Municipal Code section 151.00 et seq.). The Court of Appeal ruled that, regardless of the original design and use of the property as a single-family residence, its current configuration (nine bedrooms, two bathrooms, and one kitchen) and current use for occupancy (four individual bedrooms rented to separate households who share the kitchen and bathrooms, but who alone have exclusive access to and use of their rooms) did not qualify for the single–family dwelling exemption from the Ordinance because it is not a “detached dwelling containing only one dwelling unit” within the meaning of section 12.03. (C.A. 2nd., April 26, 2019.)
Physicians
Grafilo v. Wolfsohn (2019) _ Cal.App.5th _ , 2019 WL 1450733: The Court of Appeal reversed the trial court’s order granting a petition to compel respondent pain management physician to produce the medical records of five of his patients pursuant to a subpoena issued under Government Code section 11181 by an investigator with the Medical Board of California, a unit of the Department of Consumer Affairs. Petitioner offered no evidence as to how many patients respondent treats, the percentage of his patients the five patients comprised, how often similarly-situated pain management specialists might prescribe the drugs respondent prescribed, or the likelihood that respondent properly issued the prescriptions, and therefore failed to establish good cause for the production of the medical records. (C.A. 2nd, April 2, 2019.)
Probate
Dudek v. Dudek (2019) _ Cal.App.5th _ , 2019 WL 1552042: The Court of Appeal reversed the trial court’s order sustaining a demurrer, without leave to amend, to a petition to recover money distributed to respondents in accordance with the beneficiary designation of Genworth Life Insurance Policy (the Policy), which covered the life of J.D. Dudek (J.D.), petitioner’s brother. The petition alleged that in late 2009, J.D. created and executed the J.D. Dudek Life Insurance Trust (the Trust), an irrevocable life insurance trust that named petitioner as the trustee, and the Policy was listed as an asset of the Trust. The petition alleged the insurance company did not accept the ownership and beneficiary forms submitted by J.D. because he had altered some of the entries without initializing the changes. Petitioner was unaware of these facts and did not know that in 2016 J.D. submitted forms to the insurance company to change the beneficiaries. The trial court erred in sustaining the demurrer because the petition alleged facts that could support a finding that the execution of the Trust document created an irrevocable trust and constituted an effective inter vivos donative transfer of the Policy to plaintiff as trustee of the Trust. Given the irrevocable nature of the Trust and the language in the Trust document demonstrating J.D.’s intention to immediately transfer ownership of the Policy to petitioner, upon execution of the Trust document, the Policy irrevocably became Trust property. As a result, J.D. would have had no ability to effectuate any further transfer of the trust property to other parties. (C.A. 4th, April 10, 2019.)
Key v. Tyler (2019) _ Cal.App.5th _ , 2019 WL 1748577: The Court of Appeal reversed the trial court’s orders granting an anti-SLAPP motion to strike a petition to enforce a no contest clause in a trust and denying petitioner’s motion for attorney fees incurred in defending an earlier unsuccessful appeal filed by respondent. The Court of Appeal agreed with the trial court that the anti-SLAPP statute applied to the petition to enforce a no contest clause, but it found petitioner had adequately shown a likelihood of success on the merits so the motion should have been denied. The Court of Appeal also ruled that the section of the trust containing the no contest clause also provided that expenses to resist any “contest” or “attack” on a trust provision shall be paid from the trust estate, and this section provided petitioner with the contractual right to seek reimbursement of her attorney fees. (C.A. 2nd, April 19, 2019.)
Real Property
Point San Pedro Road Coalition v. County of Marin (2019) _ Cal.App.5th _ , 2019 WL 1055771: See summary above under Government. Shoen v. Zacarias (2019) _ Cal.App.5th _ , 2019 WL 1486865: The Court of Appeal reversed the trial court’s judgment, following a court trial, granting plaintiff an irrevocable license based upon plaintiff’s substantial expenditure improving the land in the execution of the license. The trial court erred by construing the substantial expenditure requirement too permissively and using the wrong legal standard in declaring the license to be irrevocable. (C.A. 2nd, April 4, 2019.)
York v. City of Los Angeles (2019) _ Cal.App.5th _ , 2019 WL 1089916: The Court of Appeal affirmed the trial court’s orders denying petitioners’ writ petition challenging respondent’s denial of petitioners request to grade 80,000 cubic yards as part of the construction of a residence, and the trial court’s order granting respondent’s motion for judgment on the pleadings as to the inverse condemnation and denial of civil rights causes of action. The Court of Appeal found no error in the trial court’s rulings. Although respondent denied petitioners request for almost 80,000 cubic yards of grading, it neither definitively limited petitioners to 3,300 cubic yards nor precluded them from submitting another, more modest, development proposal. Moreover, none of petitioners’ evidence supported the contention that building a home of any size on the property would require all, or nearly all, of the grading requested. (C.A. 2nd, filed March 8, 2019, published April 5, 2019.)
Workman v. Colichman (2019) _ Cal.App.5th _ , 2019 WL 1466957: See summary above under Civil Procedure.
Taxes
SSL Landlord v. County of San Mateo (2019) _ Cal.App.5th _ , 2019 WL 1772024: See summary above under Attorney Fees.
Torts
Burch v. CertainTeed Corp. (2019) _ Cal.App.5th _ , 2019 WL 1594460: The Court of Appeal affirmed the trial court’s orders granting defendant’s motion for judgment notwithstanding the verdict (JNOV) on an intentional misrepresentation claim and denying its motion for JNOV on a concealment claim after the jury returned a verdict for plaintiff in an asbestos case and awarded plaintiff economic damages of $776,201 and noneconomic damages of $9.25 million. The Court of Appeal also reversed the trial court’s order limiting defendant’s noneconomic damage liability to its percentage of fault under Civil Code section 1431.2. The Court of Appeal ruled that the trial court properly granted one JNOV (because plaintiff failed to prove reliance) and denied the other. However, because defendant was liable for the intentional tort of concealment, defendant was jointly and severally liable for all of plaintiff’s noneconomic damages. (C.A. 1st, April 15, 2019.)
Cox v. Griffin (2019) _ Cal.App.5th _ , 2019 WL 1649445: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for judgment notwithstanding the verdict (JNOV) after the jury returned a verdict for plaintiff of $450,000 in an action for false arrest (false imprisonment) and intentional infliction of emotional distress where plaintiff alleged defendant intentionally filed a false police report accusing plaintiff of forgery and embezzlement. Under Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, citizen reports of suspected criminal activity can only be the basis for tort liability on a malicious prosecution theory. (Id. at pp. 355.) When a citizen contacts law enforcement to report a suspected crime, the privilege in Civil Code section 47(b) bars causes of action for false imprisonment and intentional infliction of emotional distress, even if the police report was made maliciously. Plaintiff did not allege malicious prosecution in the underlying case, and could not raise it for the first time on appeal. (C.A. 4th, April 17, 2019.)
Harry v. Ring the Alarm, LLC (2019) _ Cal.App.5th _ , 2019 WL 1856662: The Court of Appeal reversed the judgment for defendant, following a jury trial, where the trial court instructed the jury on the firefighter’s rule defense in an action for negligence and premises liability arising from plaintiff’s fall from a platform over a hillside that caused serious personal injuries. The Court of Appeal ruled that the trial court erred in determining that the firefighter’s rule applied, instructing the jury on the issue, and including the defense as the first two questions of the special verdict. The circumstances presented in the case did not fit under the primary assumption of risk doctrine because plaintiff was not expressly hired to manage the hazardous condition that injured him, and the Court of Appeal did not find any public policy in favor of applying such a bar. (C.A. 2nd, April 25, 2019.)
Stennett v. Miller (2019) _ Cal.App.5th _ , 2019 WL 1578075: The Court of Appeal affirmed the trial court’s order granting defendants’ motion for judgment on the pleadings in a wrongful death action. The Court of Appeal ruled that a nonmarital biological child of an absentee father, who never openly held her out as his own, does not have standing under Code of Civil Procedure section 377.60 to sue for the father’s wrongful death if the child failed to obtain a court order declaring paternity during decedent’s lifetime. Moreover, section 377.60 does not violate either the state or federal equal protection clauses. (C.A. 4th, April 12, 2019.)
Stokes v. Muschinske (2019) _ Cal.App.5th _ , 2019 WL 1198876: The Court of Appeal affirmed a judgment, following a jury trial, where the jury awarded plaintiffs damages of just over $610,000, not the requested damages of $23.5 million for plaintiff husband and $4 million for plaintiff wife for her loss of consortium. Plaintiffs husband and wife sued defendant after he rear-ended a car driven by plaintiff husband, injuring him. Defendant stipulated to liability, and the issues of causation and damages were tried to a jury. The Court of Appeal ruled that the trial court’s finding of no misconduct by a juror (who did not mention he was involved in prior lawsuits) was supported by substantial reference. It also ruled there was no prejudicial violation of the collateral source rule by references during the trial to plaintiff’s past treatment at Kaiser Permanente and Kaiser medical insurance, as well as references to Medicare and Social Security disability benefits in relation to future medical expenses. (C.A. 2nd, filed March 14, 2019, published April 8, 2019.)
Strouse v. Webcor Construction (2019) _ Cal.App.5th _ , 2019 WL 1772600: The Court of Appeal affirmed the jury’s verdict for plaintiff finding defendant Webcor was 100 percent at fault for plaintiff’s injuries and awarding plaintiff $2,626,750, and it affirmed the trial court’s order granting attorney fees of $298,843 to cross-defendant ACCO Engineered Systems (ACCO; plaintiff’s employer) as the prevailing party on defendant’s cross-complaint for indemnity. The Court of Appeal found that defendant failed to demonstrate a reasonable probability that it would have obtained a more favorable result in the absence of the claimed instructional error regarding CACI No. 1009B, and any perceived error was harmless. The trial court did not err in rejecting defendant’s modified BAJI No. 8.30, and in not giving special instructions requested by defendant. The trial court properly gave a negligence per se instruction. Finally, the trial court did not abuse its discretion in awarding attorney fees to ACCO as the prevailing party in the cross-action. (C.A. 1st, filed March 27, 2019, published April 23, 2019.)
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[1] Including not allowing recovery of attorney fees or the pursuit of an individual PAGA claim.
[2] To allow plaintiffs to conduct discovery on the issue of malice.
