California Case Summaries: Monthly™
Every New Published California Civil and Family Law Case
February 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
Monty’s Web: http://montymcintyre.com/mcintyre Monty’s cell: (619) 990-4312. Monty’s email: monty@montymcintyre.com
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CALIFORNIA SUPREME COURT
Civil Procedure
Meza v. Portfolio Recovery Associates, LLC (2019) _ Cal.5th _ , 2019 WL 641517:The California Supreme Court answered the following question from the Ninth Circuit Court of Appeals about evidence allowable in limited civil cases where the amount in controversy is $25,000 or less: Under Code of Civil Procedure section 98(a), must the affiant be physically located and personally available for service of process at the address provided in the declaration that is within 150 miles of the place of trial? The California Supreme Court ruled that a section 98(a) affiant’s personal availability for service at an address within 150 miles of the place of trial often will be required for his or her affidavit to be admissible as evidence under that section, but such presence is not always necessary for all affiants. Such personal presence is required only if it is necessary for lawful service, at the specified location, of process that directs the affiant to appear at trial, under the standard rules prescribing the pertinent types of process and how such process is to be served. (February 15, 2019.)
Rand Resources, LLC v. City of Carson (2019) _ Cal.5th _ , 2019 WL 418745: The California Supreme Court reversed in part and affirmed in part the decision of the Court of Appeal that had reversed the trial court’s order granting anti-SLAPP motions to strike (Code of Civil Procedure, section 425.16) all six plaintiffs’ causes of action in an action against defendants arising from the hiring and later replacement of plaintiffs by defendant City of Carson (City) regarding negotiations with the National Football League about the possibility of building a football stadium in the City. The California Supreme Court held that the statements on which plaintiffs based their claims against the City defendants were either (1) unrelated to the issue considered by the City Council, or (2) made long before the issue came “under consideration or review” by the City Council and therefore were not protected activities. However, the statements attributed to the City’s codefendants — Leonard Bloom and his company — were protected activities. The case was remanded for further proceedings including a determination of whether plaintiffs have established a probability of prevailing on their claims arising from protected activity. (February 4, 2019.)
Sweetwater Union High School Dist. v. Gilbane Bldg. Co. (2019) _ Cal.5th _ , 2019 WL 962324: The California Supreme Court affirmed the Court of Appeal’s decision that affirmed the trial court’s denial of defendants’ anti-SLAPP motion to strike under Code of Civil Procedure section 425.16. In the second stage of an anti-SLAPP hearing, when determining a plaintiff’s probability of success, a court may consider statements that are the equivalent of affidavits and declarations because they were made under oath or penalty of perjury in California. In this case, change of plea forms, factual narratives, and excerpts from grand jury testimony satisfied this requirement. A court may consider affidavits, declarations, and their equivalents only if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial. Conversely, if the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual circumstances show inadmissibility, the court may not consider it in the face of an objection. If an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable. (February 28, 2019.)
Employment
Goonewardene v. ADP, LLC (2019) _ Cal.5th _ , 2019 WL 470963: The California Supreme Court reversed the Court of Appeal decision that had allowed an employee to bring causes of action for unpaid wages against a payroll company for the employer for breach of the payroll company’s contract with the employer under the third party beneficiary doctrine, negligence, and negligent misrepresentation. The California Supreme Court ruled that an employee may not be viewed as a third party beneficiary who may maintain an action against the payroll company for an alleged breach of the contract between the employer and the payroll company with regard to the payment of wages. Moreover, an employee who alleges that he or she has not been paid wages that are due cannot maintain tort causes of action for negligence and negligent misrepresentation against a payroll company. (February 7, 2019.)
Evidence
Meza v. Portfolio Recovery Associates, LLC (2019) _ Cal.5th _ , 2019 WL 641517: See summary above under Civil Procedure.
CALIFORNIA COURTS OF APPEAL
Appeal
Rostack Investments v. Sabella (2019) _ Cal.App.5th _ , 2019 WL 457595: The Court of Appeal affirmed the trial court’s order denying plaintiff’s motion to tax defendant’s appellate costs (awarded after her successful appeal of a summary judgment) of approximately $1.4 million related to obtaining a surety bond, secured by a letter of credit, pending the appeal. The Court of Appeal ruled that the judgment for costs on appeal was a final enforceable judgment, and the bond and letter of credit premiums were reasonable and necessary. (C.A. 2nd, February 5, 2019.)
Arbitration
Correia v. NB Baker Electric, Inc. (2019) _ Cal.App.5th _ , 2019 WL 910979: The Court of Appeal affirmed the trial court’s order granting a petition to compel arbitration of all causes of action in a wage and hour case, except the Private Attorney General Act of 2004 (PAGA; Labor Code, section 2699 et seq.) claim, and staying the PAGA claim until the conclusion of the arbitration. The trial court acted within its discretion in considering plaintiffs’ response to the arbitration petition even though plaintiffs filed the response after the statutory deadline. The California Supreme Court decision of Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian), which held unenforceable agreements to waive the right to bring PAGA representative actions in any forum, remains binding on California courts. The recent decision of the United States Supreme Court, in Epic Systems Corp. v. Lewis (2018) __ U.S. __ [138 S.Ct. 1612] (Epic), does not change this result. While Epic reaffirmed the broad preemptive scope of the Federal Arbitration Act, it did not address the specific issues before the Iskanian court involving a claim for civil penalties brought on behalf of the government and the enforceability of an agreement barring a PAGA representative action in any forum. The trial court also properly declined to compel arbitration of the PAGA claim and stayed that issue until after the arbitration. (C.A. 4th, February 25, 2019.)
Attorney Fees
Hardie v. Nationstar Mortgage LLC (2019) _ Cal.App.5th _ , 2019 WL 947085: See summary below under Civil Code.
Martinez v. O’Hara (2019) _ Cal.App.5th _ , 2019 WL 968304: The Court of Appeal affirmed the trial court’s order denying a motion for attorney fees seeking $146,634 under Labor Code section 218.5 and Government Code section 12965. Plaintiff sued alleging several causes of action related to his employment and termination. Plaintiff’s wage claim was resolved before trial and his fraud claim was dismissed when the trial court granted a motion for nonsuit. A jury returned a verdict awarding $8,080 in damages on the claim for sexual harassment in violation of the California Fair Employment and Housing Act (FEHA). Following a bench trial of plaintiff’s remaining claims, the trial court found in favor of defendants. The Court of Appeal ruled that the record supported the trial court’s application of the special circumstance of an excessive request for attorney fees, and supported the court’s exercise of discretion in denying prevailing party attorney fees on the FEHA claim. Moreover, the trial court also properly denied the motion because plaintiff recovered less than the maximum recoverable in a limited civil case. The Court of Appeal reported the plaintiff’s attorney to the State Bar of California for misconduct and gender bias on appeal for his statement in the Notice of Appeal that the ruling of the female judicial officer was “succubustic.” A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep. The Court of Appeal declared that gender bias by an attorney appearing before it would not be tolerated, period. (C.A. 4th, February 28, 2019.)
Attorneys
Martinez v. O’Hara (2019) _ Cal.App.5th _ , 2019 WL 968304: See summary above under Attorney Fees.
Civil Code
Hardie v. Nationstar Mortgage LLC (2019) _ Cal.App.5th _ , 2019 WL 947085: The Court of Appeal reversed the trial court’s order awarding plaintiff attorney fees of $3,500, pursuant to Civil Code section 2924.12, after plaintiff obtained an ex parte temporary restraining order enjoining a trustee’s sale of real property. Although section 2924.12(h) permits an award of fees to a borrower who prevails in obtaining a TRO, the fee award was reversed because the fee request was not brought in a properly noticed motion as required by Rule 3.1702 of the California Rules of Court. (C.A. 5th, February 27, 2019.)
Orchard Estate Homes v. Orchard Homeowners Alliance (2019) _ Cal.App.5th _ , 2019 WL 351083: The Court of Appeal affirmed the trial court’s order granting a petition pursuant to Civil Code section 4275 seeking authorization to reduce the percentage of affirmative votes to adopt an amendment of the covenants, conditions, and restrictions of a homeowner’s association that would prohibit short term-rentals for less than 30 days. Voter apathy is not included in the list of elements that must be established to get relief under section 4275. (C.A. 4th, filed January 29, 2019, published February 22, 2019.)
Sturm v. Moyer (2019) _ Cal.App.5th _ , 2019 WL 642708: See summary below under Family Law.
Civil Procedure
Design Built Systems v. Sorokine (2019) _ Cal.App.5th _ , 2019 WL 947077: See summary below under Contractors.
Jackson v. Kaiser Foundation Hospitals (2019) _ Cal.App.5th _ , 2019 WL 494453: The Court of Appeal affirmed the trial court’s order denying a motion for relief from default under Code of Civil Procedure section 473(b). The Court of Appeal found the trial court’s order was appealable. However, it affirmed the trial court because the mandatory relief allowed under section 473(b) from a default judgment or dismissal that is entered against a party due to the fault of the party’s attorney did not apply to a voluntary dismissal, without prejudice, filed as to defendant. (C.A. 1st, February 8, 2019.) Korman v. Princess Cruise Lines, Ltd. (2019) _ Cal.App.5th _ , 2019 WL 621441: The Court of Appeal affirmed the trial court’s order granting a motion to dismiss for forum non conveniens, under Code of Civil Procedure sections 410.30 and 418.10, in an action filed in the Los Angeles Superior Court for personal injuries plaintiff suffered while on a cruise ship traveling from Buenos Aires, Argentina to Santiago, Chile. The forum selection clause in the passage contract required a lawsuit to be filed in the federal court in Los Angeles. The Court of Appeal ruled that the forum selection clause was mandatory, not permissive, and enforcement of the clause was not unreasonable. (C.A. 2nd, February 14, 2019.)
Laker v. Bd. of Trustees of the Cal. State Univ. (2019) _ Cal.App.5th _ , 2019 WL 969567: The Court of Appeal reversed in part and affirmed in part the trial court’s order denying defendants’ anti-SLAPP motions to strike plaintiff’s complaint under Code of Civil Procedure section 425.16. The trial court erred in ruling that defendants had failed to show the defamation claim arose from protected activity under section 425.16. Moreover, plaintiff failed to show his defamation claim had the requisite merit, because the statements supporting its allegations were absolutely privileged under Civil Code section 47(b)(3), which protects statements made in “official proceedings.” The Court of Appeal affirmed the trial court’s order denying the motion to strike by defendant Board of Trustees of the California State University regarding plaintiff’s retaliation claim, but it struck the allegation in that claim relating to defamatory statements. (C.A. 6th, February 28, 2019.)
MDQ, LLC v. Gilbert, Kelly, Crowley & Jennett (2019) _ Cal.App.5th _ , 2019 WL 948726: The Court of Appeal affirmed the trial court’s order, in an interpleader action, awarding interpleaded funds to a judgment creditor with a properly recorded judgment lien and not to an assignee (the law firm), who did not file a financing statement with respect to distributions irrevocably assigned to it by the judgment debtor before the judgment lien was recorded. It also affirmed the trial court’s order that the $11,550 in attorney fees awarded to the judgment creditor be paid by the assignee rather than from the interpleaded funds. Although the assignment created a security interest, the judgment creditor was entitled to the interpleaded funds because its recorded judgment lien had priority over the unperfected security interest. (C.A. 2nd, February 27, 2019.)
Richmond Compassionate Care etc. v. 7 Stars Holistic etc. (2019) _ Cal.App.5th _ , 2019 WL 350414: The Court of Appeal affirmed the trial court’s order denying the anti-SLAPP motion to strike, under Code of Civil Procedure section 425.16, filed by defendant to plaintiff’s third amended complaint. The Court of Appeal found the essence of the third amended complaint to be the private actions defendant took to restrain trade and monopolize the medical marijuana market in Richmond. The trial court properly ruled that the third amended complaint was not based upon protected activity. (C.A. 1st, filed January 29, 2019, published February 21, 2019.)
Sunrise Financial, LLC v. Super. Ct. (2019) _ Cal.App.5th _ , 2019 WL 476095: The Court of Appeal denied a writ petition challenging the trial court’s denial of a Code of Civil Procedure section 170.6 challenge by several defendants to the trial judge on the basis that it was untimely filed. The Court of Appeal ruled that the trial court properly found defendants’ section 170.6 challenge was untimely because it was filed more than 15 days after they made an appearance in the action by filing an opposition to a Code of Civil Procedure section 403 transfer/consolidation motion in the judge’s department. While the section 170.6 time deadlines were not written with section 403 transfer motions in mind, this conclusion best effectuates the legislative intent when viewing the specific words of the statute and the statutory purpose and objectives. (C.A. 4th, February 7, 2019.)
Symmonds v. Mahoney (2019) _ Cal.App.5th _ , 2019 WL 409491: The Court of Appeal reversed the trial court’s order denying defendants’ anti-SLAPP motion to strike (Code of Civil Procedure, section 425.16) a complaint filed by the fired drummer for Edward Joseph Mahoney (also known as Eddie Money) alleging discrimination on the basis of age, disability, and medical condition. The trial court denied the motion on the basis that the action did not arise from protected activity. The Court of Appeal disagreed, ruling the trial court erred in denying defendants’ special motion to strike at the first step of anti-SLAPP analysis. The Court of Appeals agreed with defendants that the activity underlying the first cause of action was the decision to terminate plaintiff, a decision defendant Mahoney contended was in furtherance of his free speech rights in connection with an issue of public interest. The matter was remanded for the trial court to evaluate the second step of the anti-SLAPP process. (C.A. 2nd, February 1, 2019.)
United Farmers Agents Assoc. v. Farmers Group (2019) _ Cal.App.5th _ , 2019 WL 850761: The Court of Appeal affirmed the trial court’s judgment, following a bench trial, finding that plaintiff lacked standing to pursue its claims and had failed to demonstrate it was entitled to declaratory relief. Plaintiff was a trade association whose members were independent insurance agents who worked for the defendant insurance companies. Plaintiff sued alleging that defendants violated the agreements with the agents and sought four declarations from the court that: (1) the agreements’ no-cause termination provisions were unconscionable; (2) the agreements precluded defendants’ use of performance programs and imposition of discipline based on an agent’s failure to meet performance standards; (3) the agreements precluded defendants from taking adverse action against agents based on the “location, nature, hours, and types of offices maintained” by the agents; and (4) the agreements precluded defendants from sharing customer information acquired by agents with competitors, such as 21st Century Insurance. The Court of Appeal found that plaintiff did have standing to pursue the claims related to office locations and performance standards, but lacked standing to pursue the claims related to unconscionability and sharing of customer information. However, plaintiff was not entitled to declaratory relief on its claims related to office locations and performance standards. (C.A. 2nd, February 22, 2019.)
Class Actions
Fierro v. Landry’s Restaurant, Inc. (2019) _ Cal.App.5th _ , 2019 WL 658710: The Court of Appeal reversed the trial court’s order sustaining a demurrer, without leave to amend, to a class action complaint on the basis that a prior class action with identical class claims against defendant had been dismissed for failure to bring the case to trial in five years as required by Code of Civil Procedure sections 583.310 and 583.360. After the Court of Appeal issued its original opinion, the California Supreme Court granted review and transferred the matter to the Court of Appeal with directions to vacate its earlier opinion and reconsider the cause in light of the United States Supreme Court’s opinion in China Agritech, Inc. v. Resh (2018) __ U.S. __ [138 S.Ct. 1800] (China Agritech). China Agritech which held that, upon denial of class certification, a putative class member may not commence a new class action asserting the same claim if the statute of limitations on the claim has run. (Id. at p. __ [138 S.Ct. at p. 1804].) The efficiency and economy of litigation which support tolling the statutes of limitations for individual claims during the pendency of the initial class action do not support tolling the statutes of limitations for the class claims. (Id. at p. __ [138 S.Ct. at p. 1806].) Applying China Agritech, the Court of Appeal ruled as follows: The trial court erred in applying the section 583.360 dismissal of the earlier action as a bar to plaintiff’s class claims. In determining whether statutes of limitations barred the class claims, there was no basis for the application of equitable or other tolling. However, on the record before it, the Court of Appeal could not say that all of the class claims were untimely, so the matter was reversed and remanded for further proceedings by the trial court. (C.A. 4th, February 15, 2019.)
Jimenez-Sanchez v. Dark Horse Express, Inc. (2019) _ Cal.App.5th _ , 2019 WL 211184: The Court of Appeal reversed the trial court’s order denying class certification in a wage and hour class action for truck drivers who were paid on a piece-rate basis to transport agricultural products within California. Defendant identified 76 current and former drivers as potential class members and indicated it has obtained settlement agreements and releases from 54 of the drivers. The Court of Appeal ruled that the trial court used improper criteria or erroneous legal assumptions in determining whether common issues predominated in the rest break claims. It did not separately analyze the issue of compensation for rest breaks, but included rest break claims in its discussion of the nonproductive time issue. The Court of Appeal further found that the error in considering the rest break claims also affected the trial court’s analysis of the meal break and release claims. (C.A. 5th, filed January 16, 2019, published February 14, 2019.)
Marquez v. City of Long Beach (2019) _ Cal.App.5th _ , 2019 WL 911658: See summary below under Employment.
Construction
Design Built Systems v. Sorokine (2019) _ Cal.App.5th _ , 2019 WL 947077: See summary below under Contractors.
Contractors
Design Built Systems v. Sorokine (2019) _ Cal.App.5th _ , 2019 WL 947077: The Court of Appeal reversed three rulings by the trial court in an action by contractors against homeowners related to construction work. The Court of Appeal reversed the trial court’s order granting cross-complainant contractor’s motion for directed verdict against cross-defendant homeowners for violating Internal Revenue Code section 7324, and later awarding $20,000 in sanctions and $122,956.50 in attorney fees and costs. The record did not support a directed verdict on the claim that the homeowners “willfully” issued a “fraudulent” return. The Court of Appeal reversed the trial court’s orders granting a motion in limine preventing the homeowners from introducing evidence of payments made to an unlicensed contractor, and later granting directed verdicts against homeowners based on failure to prove damages. There is no authority for the proposition that a person who unwittingly hires an unlicensed contractor to repair work not property performed by a licensed contractor is precluded from introducing evidence of the cost of repair under Business and Professions Code section 7031. Finally, the Court of Appeal reversed the trial court’s award of cost of proof damages of $113,196.50, under Code of Civil Procedure section 2033.420, to a party based on requests for admissions propounded by a different party. A party may not recover cost of proof expenses based upon requests for admission propounded by someone else. (C.A. 1st, February 26, 2019.)
Education
Mijares v. Orange Co. Employees Retirement System (2019) _ Cal.App.5th _ , 2019 WL 311469: The Court of Appeal affirmed the trial court’s order granting a motion for judgment on the pleadings in a declaratory relief action by plaintiffs that sought to enjoin defendant/cross-complainant from enforcing a policy it adopted in 2015 requiring plaintiff Orange County Department of Education (OCDE) to fund an unfunded liability of its employees’ pension benefits. The trial court properly ruled that defendant/cross-complainant had acted within its authority, and the OCDE must pay approximately $3.3 million in additional contributions to fund pension benefits promised to its employees. (C.A. 4th, filed January 23, 2019, published February 15, 2019.)
Elder Abuse
Darrin v. Miller (2019) _ Cal.App.5th _ , 2019 WL 337088: The Court of Appeal reversed the trial court’s order denying a petition for a restraining order under Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act; Welfare & Institutions Code, section 15600 et seq.). The trial court erred in denying the petition because the restraining order was requested against a neighbor. The Court of Appeal ruled that the plain language of the Elder Abuse Act authorizes a trial court to issue a restraining order against any individual who has engaged in abusive conduct, as defined by statute, toward a person age 65 or older regardless of the relationship between the alleged abuser and victim. (Welfare & Institutions Code, sections 15610.07(a)(1) and 15657.03.) (C.A. 1st, filed January 28, 2019, published February 21, 2019.)
Employment
Correia v. NB Baker Electric, Inc. (2019) _ Cal.App.5th _ , 2019 WL 910979: See summary above under Arbitration.
Jimenez-Sanchez v. Dark Horse Express, Inc. (2019) _ Cal.App.5th _ , 2019 WL 211184: See summary above under Class Actions.
Marquez v. City of Long Beach (2019) _ Cal.App.5th _ , 2019 WL 911658: The Court of Appeal reversed the trial court’s order sustaining a demurrer, without leave to amend, to a putative class action alleging violations of the Labor Code and the Industrial Welfare Commission’s (IWC) wage orders based on defendant’s alleged failure to pay workers employed as pages and recreation leader specialists wages at or above the statewide minimum wage. The trial court found the authority to determine employee compensation was reserved to defendant as a charter city under article XI, section 5 of the California Constitution, and the state could not impose a minimum wage for defendant’s employees because the defendant’s compensation of its employees was not a matter of statewide concern. The Court of Appeal disagreed, ruling that legislation setting a statewide minimum wage, generally applicable to both private and public employees, addressed the state’s interest in protecting the health and welfare of workers by ensuring they can afford the necessities of life for themselves and their families. The Legislature may constitutionally exercise authority over minimum wages, despite the constitutional reservation of authority in charter cities to legislate as to their municipal affairs. (C.A. 2nd, February 25, 2019.)
Mijares v. Orange Co. Employees Retirement System (2019) _ Cal.App.5th _ , 2019 WL 311469: See summary above under Education.
Moorer v. Noble LA Events Inc. (2019) _ Cal.App.5th _ , 2019 WL 949419: The Court of Appeal affirmed the trial court’s order denying plaintiff’s request for entry of a default judgment against defendant, and then dismissing the case. The trial court properly denied plaintiff’s request because plaintiff refused to comply with the court’s order to distribute 25 percent of the penalties under the Labor Code Private Attorney General Act of 2004 (PAGA; Labor Code, section 2698 et seq.) to the 23 aggrieved employees in a pro rata amount as required by PAGA. The trial court properly dismissed the case because plaintiff repeatedly failed to comply with its order regarding distribution of the penalties to the aggrieved employees and not to plaintiff individually. (C.A. 2nd, filed February 11, 2019, published February 27, 2019.)
Ward v. Tilly’s, Inc. (2019) _ Cal.App.5th _ , 2019 WL 421743: The Court of Appeal reversed the trial court’s order sustaining a demurrer, without leave to amend, in a wage and hour action. Plaintiff alleged the on-call scheduling practices of her former employer, defendant, violated wage order No. 7-2001 (codified at California Code of Regulations, title 8, section 11070; hereafter, Wage Order 7). The complaint alleged that employees were assigned on-call shifts, but were not told until they called in two hours before their shifts started whether they should actually come in to work. If they were told not to come in, they were not paid for the shift. Wage Order 7 requires employers to pay employees “reporting time pay” for each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work. The Court of Appeal ruled that the on-call scheduling alleged in this case triggered Wage Order 7’s reporting time pay requirements. (C.A. 2nd, February 4, 2019.)
Environment
Fudge v. City of Laguna Beach (2019) _ Cal.App.5th _ , 2019 WL 580389: The Court of Appeal affirmed the trial court’s order sustaining a demurrer to a writ petition filed by petitioner challenging the approval of a coastal development permit by respondent City of Laguna Beach (City) allowing Hany Dimitry to demolish his Laguna Beach house. The trial court properly sustained the demurrer after the California Coastal Commission (Commission) accepted petitioner’s appeal. Because the Commission would hear the appeal “de novo,” the trial court properly followed Kaczorowski v. Mendocino County Bd. of Supervisors (2001) 88 Cal.App.4th 564 and McAllister v. County of Monterey (2007) 147 Cal.App.4th 253 in concluding that there was no relief that petitioner might be able to obtain in his court action. The Court of Appeal ruled that by enacting Public Resources Code section 21080.5, Legislature constructed a system in which appeals to the Commission would be heard de novo under the Coastal Act even though the original local decision was decided under the California Environmental Quality Act. (C.A. 4th, February 13, 2019.) Save Lafayette Trees v. City of Lafayette (2019) _ Cal.App.5th _ , 2019 WL 493957: After a rehearing, the Court of Appeal affirmed its earlier ruling that a claim under the California Environmental Quality Act (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 first cause of action was reversed. (C.A. 1st, February 8, 2019.)
Family Law
Marriage of Anka & Yeager (2019) _ Cal.App.5th _ , 2019 WL 422347: The Court of Appeal affirmed the trial court’s sanction of $50,000 against an attorney but reversed it as to the client. The trial court imposed $50,000 in sanctions jointly and severally against an attorney and her client for disclosing information contained in a confidential child custody evaluation report (Family Code, sections 3025.5, 3111.). The trial court did not abuse its discretion in sanctioning the attorney, but it did abuse its discretion in sanctioning the client. (C.A. 2nd, February 4, 2019.)
Marriage of Ciprari (2019) _ Cal.App.5th _ , 2019 WL 458948: The Court of Appeal affirmed in part and reversed in part several issues arising from the trial court’s entry of judgment. A detailed tracing analysis performed by husband’s expert witness was valid and constituted substantial evidence in support of the judgment’s characterization of a majority of the cash and securities held in commingled accounts as husband’s separate property. Substantial evidence also supported the finding that husband did not breach fiduciary duties when he used community property funds to establish an irrevocable life insurance trust for the benefit of the two daughters to fund tax-advantaged Internal Revenue Code section 529 college savings accounts. The award of permanent child support was affirmed, as well as temporary child support and spousal support awards for 2015. However, the trial court abused its discretion when it retrospectively modified 2014 pendente lite child and spousal support based upon 2013 tax returns rather than the 2014 tax returns which were then available. The permanent spousal support of $5,000 per month was also reversed, on the basis that the amount was too low compared to the marital standard of living and husband’s ability to pay more. (C.A. 2nd, February 6, 2019.)
Sturm v. Moyer (2019) _ Cal.App.5th _ , 2019 WL 642708: The Court of Appeal reversed the trial court’s order sustaining a demurrer to a complaint under the Uniform Voidable Transactions Act (UVTA; Civil Code, section 3439 et seq.) seeking to set aside the alleged transfer of defendant’s (who was also a judgment debtor to plaintiff) community property interest in his wife’s earnings and income in a premarital agreement. Deciding an issue of first impression, the Court of Appeal ruled that, assuming fraudulent intent, the UVTA applies to a premarital agreement in which the prospective spouses agree that, upon marriage, each spouse’s earnings, income, and other property acquired during marriage will be that spouse’s separate property. (C.A. 2nd, February 15, 2019.)
Government
Perez v. County of Monterey (2019) _ Cal.App.5th _ , 2019 WL 621483: The Court of Appeal affirmed the trial court’s judgment for defendants, following a bench trial, in an action for declaratory relief seeking to invalidate as unconstitutional a county ordinance limiting the number of roosters that could be kept on a property without a permit. The challenged ordinance provided that no one could keep more than four roosters on a single property without a rooster keeping operation permit. The trial court properly concluded that the ordinance did not violate either the United States Constitution or the California Constitution. (C.A. 6th, February 14, 2019.)
Hospitals
Economy v. Sutter East Bay Hospitals (2019) _ Cal.App.5th _ , 2019 WL 422346: The Court of Appeal affirmed a judgment for plaintiff, following a bench trial, awarding plaintiff $3,867,122 in damages but denying his request for attorney fees and costs. The trial court properly found that defendant hospital could not avoid its obligation to provide notice and a hearing before terminating a doctor’s ability to practice in the hospital for jeopardizing patient quality of care by directing the medical group employing the doctor to refuse to assign the doctor to the hospital. The failure by the hospital to provide notice to plaintiff of the charges against him and the right to a hearing was a violation of Business and Professions Code section 809.5. The Court of Appeal also agreed with the trial court’s denial of attorney fees to plaintiff because the defendant’s conduct in defending the action was not frivolous, unreasonable, without foundation, or in bad faith. (C.A. 1st, February 4, 2019.)
Insurance
Deere & Co. v. Allstate Ins. Co. (2019) _ Cal.App.5th _ , 2019 WL 912151: The Court of Appeal reversed the trial court’s orders finding for defendant insurance carriers on coverage issues related to asbestos litigation against plaintiff in various jurisdictions for personal injuries arising from alleged exposure to asbestos-containing brakes, clutch assemblies, and gaskets used in Deere & Co. machines. The trial court ruled that the retained limits plaintiff agreed to pay in its first layer of coverage also applied to the higher-layer excess policies, and the higher-layer excess coverage was not triggered until plaintiff paid additional self- insured retention amounts for each occurrence. It also concluded that defendant carriers were not obligated to pay defense costs when the underlying cases were dismissed without payment to a claimant. The Court of Appeal reversed, finding that the retained limits were not incorporated into the higher-layer excess policies, and the policies obligated defendant insurers to indemnify plaintiff for its defense costs. (C.A. 1st, February 25, 2019.)
Physicians
Economy v. Sutter East Bay Hospitals (2019) _ Cal.App.5th _ , 2019 WL 422346: See summary above under Hospitals.
Grafilo v. Cohanshohet (2019) _ Cal.App.5th _ , 2019 WL 275941: The Court of Appeal reversed the trial court’s order granting a writ petition to compel the production of medical records of five patients and the testimony of Dr. Kaymar Cohanshohet. The Medical Board of California filed the petition after the doctor, who was being investigated for his prescription of controlled substances to these patients, refused to produce records in response to a subpoena. The Court of Appeal ruled that good cause for production of the medical records required something more than the mere fact that a specialist in pain medication prescribed doses slightly greater than 100-morphine-equivalent dosing to three patients, and two others received prescriptions for drugs which, used in combination, resulted in increased sedative effects. (C.A. 2nd, filed January 22, 2019, published February 21, 2019.)
Probate
Conservatorship of O.B. (2019) _ Cal.App.5th _ , 2019 WL 926100: The Court of Appeal affirmed the trial court’s order granting a limited conservatorship over an 18-year-old woman with autism. Substantial evidence supported the establishment of a limited conservatorship over the person. (C.A. 2nd, February 26, 2019.)
Real Property
City of Sierra Madre v. SunTrust Mortgage (2019) _ Cal.App.5th _ , 2019 WL 926096: The Court of Appeal affirmed the trial court’s order authorizing a super-priority lien for a $250,000 loan obtained by a receiver to be used to remediate residential property that was causing a nuisance. Defendant objected to the remediation loan having priority over their mortgage loan. The Court of Appeal observed that the use of super-priority liens has been approved in California since at least 1915. (C.A. 2nd, February 26, 2019.)
Los Angeles County Metropolitan etc. v. Yum Yum Donut Shops (2019) _ Cal.App.5th _ , 2019 WL 926213: The Court of Appeal reversed the trial court’s ruling that defendant, in an eminent domain action, was not entitled to goodwill compensation because it unreasonably refused to relocate the donut shop to one of three sites plaintiff proposed at the entitlement trial. The undisputed expert testimony elicited at trial established defendant would lose some of the donut shop’s goodwill even if defendant relocated the shop to one of those sites. The Court of Appeal ruled that a condemnee need only prove some or any unavoidable loss of goodwill to satisfy the condemnee’s burden to demonstrate entitlement to compensation for goodwill under Code of Civil Procedure section 1263.510. The trial court erred in finding that defendant’s failure to mitigate some of its loss of goodwill precluded compensation for any loss of goodwill. (C.A. 2nd, February 26, 2019.)
Ryan v. Real Estate of the Pacific (2019) _ Cal.App.5th _ , 2019 WL 926101: The Court of Appeal affirmed the trial court’s order granting defendants motion for summary judgment in an action by plaintiffs against defendants for negligence and other claims arising from the sale of plaintiffs’ home by defendants. Plaintiffs alleged that defendants breached their duty by failing to disclose the extensive remodeling plans of a neighbor that the neighbor disclosed to defendants. The lawsuit was filed after the purchasers won an arbitration, based upon the failure to disclose the neighbor’s remodeling plans, where the arbitrator ordered the rescission of the purchase contract, the return of the purchase price of $3.86 million, and also ordered plaintiffs to pay purchasers over $1 million in costs and attorney fees. The trial court granted summary judgment because plaintiffs did not disclose an expert witness. The trial court erred because the conduct required under the circumstances was within the common knowledge of a layman, and defendants did not satisfy their initial burden of showing that the causes of action lacked merit because one or more elements of each cause of action could not be established. (C.A. 4th, February 26, 2019.)
Water
Millview County Water Dist. v. State Water Resources Control Bd. (2019) _ Cal.App.5th _ , 2019 WL 910966: The Court of Appeal reversed the trial court’s order granting a peremptory writ of mandate directing respondent to vacate and set aside its Order No. WR 2014-0021 revoking License 5763. The writ petition filed by petitioner was untimely because it was not filed within 30 days after the final decision of respondent on May 20, 2014 as required by Water Code section 1126(b). The mailing by a clerk on June 2, 2014, of a “Corrected Version” of the Order, did not extend the filing deadline. (C.A. 1st, February 22, 2019.)
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