California Case Summaries Civil™ California cases: 11-7-16 to 11-18-16

 By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee
Civil Trial Lawyer & ABOTA Member
Licensed in California since 1980
Phone: (619) 990-4312 | Email: monty@montymcintyre.com
www.montymcintyre.com

Matters Handled: Business | Class Action | Construction | Employment
Insurance | Medical Malpractice | Probate | Professional Liability
Real Property | Torts | Trusts and Estates

 Locations: San Diego | Irvine | Los Angeles | San Francisco

 To schedule: call Genevieve Kenizwald at (619) 233-1323, or email gen@adrservices.org.

CALIFORNIA SUPREME COURT

Civil Procedure

Maas v. Superior Court (2016) _ Cal.5th _ , 2016 WL 6575146: The California Supreme Court affirmed the Court of Appeal’s ruling granting a writ petition directing the superior court to reassign the assessment of petitioner’s petition for writ of habeas corpus to a judge other than the judge who originally reviewed, and summarily denied, his petition. A petitioner who requests the name of the judge assigned to examine his or her habeas corpus petition is entitled to notice of that assignment, and also is entitled to peremptorily challenge the assigned judge, so long as all of the procedural requirements of Code of Civil Procedure section 170.6 have been satisfied, including the requirement that the assigned judge not have participated in the petitioner’s underlying criminal action. (November 7, 2016.)

Health Care

Centinela Freeman Emergency Medical Associates, et al. v. Health Net of California (2016) _ Cal.5th _ , 2016 WL 6678432: The California Supreme Court affirmed the judgment of the Court of Appeal that reversed the trial court’s order sustaining demurrers, without leave to amend, by defendants who had delegated their financial responsibility to individual practice associations (IPA) pursuant to Health & Safety Code section 1371.4(e). The California Supreme Court ruled that a health care service plan may be liable to noncontracting emergency service providers for negligently delegating its financial responsibility to an IPA or other contracting medical provider group that it knew or should have known would not be able to pay for emergency service and care provided to the health plan’s enrollees. After the initial delegation, a health care service plan may still be liable to noncontracting emergency service providers for negligently continuing or renewing a delegation contract with an IPA when it knows or should know that there can be no reasonable expectation that its delegate will be able to reimburse noncontracting emergency service providers for their covered claims. (November 14, 2016.)

Judges

Maas v. Superior Court (2016) _ Cal.5th _ , 2016 WL 6575146: See summary above under Civil Procedure.

Physicians

Centinela Freeman Emergency Medical Associates, et al. v. Health Net of California (2016) _ Cal.5th _ , 2016 WL 6678432: See summary above under Health Care.

 CALIFORNIA COURTS OF APPEAL

Appeal

Southern California Gas Co. v. Flannery (2016) _ Cal.App.5th _ , 2016 WL 6678424: See summary below under Attorney Fees.

Arbitration

Tanguilig v. Bloomingdale’s (2016) _ Cal.App.5th _ , 2016 WL 6778788: The Court of Appeal affirmed the trial court’s order denying a motion to compel arbitration in plaintiff’s representative action on behalf of herself and fellow employees pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA) (Labor Code, section 2698 et seq.), alleging several Labor Code violations including the failure to: provide commission-earning employees paid rest periods, pay minimum wage for noncommission-producing activities, provide complete and accurate wage statements, and timely pay wages. Under Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, and consistent with the Federal Arbitration Act (9 U.S.C. et seq.), a PAGA representative claim is nonwaivable by a plaintiff-employee via a predispute arbitration agreement with an employer; and a PAGA plaintiff’s request for civil penalties on behalf of himself or herself is not subject to arbitration under a private arbitration agreement between the plaintiff and his or her employer because the real party in interest in a PAGA suit, the state, has not agreed to arbitrate the claim. (C.A. 1st, November 16, 2016.)

Attorney Fees

Southern California Gas Co. v. Flannery (2016) _ Cal.App.5th _ , 2016 WL 6678424: The Court of Appeal affirmed the trial court’s orders that properly granted motions seeking payment from funds interpleaded with the court. Plaintiff interpleaded $2,250,000 from a fire loss settlement entered into between plaintiff and property owners Patrick Flannery (Flannery) and Andrea Murray (Murray) related to the 2008 Sesnon wildfire. The trial court awarded plaintiff $169,983.13 in attorney fees and costs. The trial court awarded $1,225,000 to Murray pursuant to a separate palimony case judgment. And the trial court awarded attorney Scott Tepper fees of $512,295 for his work in representing, for most of the case, Flannery and Murray in their fire case against plaintiff. The failure of appellants to obtain a court reporter for the argument hearings precluded a determination that the trial court abused its discretion. Because no bond was filed regarding an appeal from the palimony judgment, there was no stay of execution on that judgment. In addition, the interpleader action satisfied the separate, independent action requirement for enforcement of an attorney fee lien. (C.A. 2nd, November 14, 2016.)

Civil Procedure

Armin v. Riverside Community Hospital (2016) _ Cal.App.5th _ , 2016 WL 6779429: In an action by a physician alleging violations of the hospital whistleblower statute (Health and Safety Code section 1278.5) and religious discrimination under the Fair Employment and Housing Act (Government Code sections 12900 et seq.) that arose from defendant hospital’s peer review actions, the Court of Appeal reversed the trial court’s order granting an anti-SLAPP motion to strike the section 1278.5 claims and awarding defendant $12,440 in attorney fees but affirmed its order denying an anti-SLAPP motion regarding plaintiff’s religious discrimination claims. The Court of Appeal ruled that a physician need not complete the internal peer review process before filing a section 1278.5 action, individual physicians may not be named in a section 1278.5 complaint, and the discrimination claims were not based on activity protected under the anti-SLAPP statute because plaintiff first voiced his complaints of religious discrimination before the initiation of the peer review proceedings. (C.A. 4th, filed November 16, 2016, published November 17, 2016.)

Lee v. West Kern Water District (2016) _ Cal.App.5th _ , 2016 WL 6212461: See summary below under Torts.

Soria v. Univision Radio Los Angeles (2016) _ Cal.App.5th _ , 2016 WL 6746448: See summary below under Employment.

Southern California Gas Co. v. Flannery (2016) _ Cal.App.5th _ , 2016 WL 6678424: See summary above under Attorney Fees.

Tun v. Wells Fargo Dealer Services (2016) _ Cal.App.5th _ , 2016 WL 6576523: In a case where the jury returned a verdict for defendants on plaintiff’s complaint alleging violation of the Consumer Legal Remedies Act (Civil Code section 1750 et seq.) for allegedly selling a used BMW with frame damage without disclosing the damage, the Court of Appeal reversed the trial court’s order granting a motion for new trial by plaintiff against defendant Wells Fargo Dealer Services (Wells Fargo). The Court of Appeal concluded that a tender under section 2983.4 is neither an offer to compromise nor an admission of liability, but it can impact the determination of who is the prevailing party after a trial. The trial court erred in granting the motion for new trial because it had correctly ruled in limine that plaintiff could not comment on Wells Fargo’s tender of $15,070 under Civil Code section 2983.4 because that tender could not be treated as a judicial admission of liability, and the tender was irrelevant to the issues decided by the jury which focused on the conduct of the dealer in connection with the sale of the vehicle. (C.A. 4th, November 7, 2016.)

Consumer Protection

Tun v. Wells Fargo Dealer Services (2016) _ Cal.App.5th _ , 2016 WL 6576523: See summary above under Civil Procedure.

Employment

Dinslage v. City and County of San Francisco (2016) _ Cal.App.5th _ , 2016 WL 6610280: In an action alleging discrimination, retaliation, and harassment in violation of the California Fair Employment and Housing Act (FEHA), the Court of Appeal affirmed the trial court’s summary judgment for the defendants. In the published portion of the opinion the Court of Appeal ruled that summary judgment was properly granted on plaintiff’s retaliation claim because he failed to make out a prima facie case of retaliation. To prevail, plaintiff was required to show he suffered an adverse employment action because he had engaged in a protected activity. Plaintiff’s opposition to department policies and practices he viewed as discriminating against disabled members of the general public was not protected activity because his opposition was not directed at an unlawful employment practice. Therefore, plaintiff could not reasonably have believed the practices he opposed were prohibited by FEHA. (C.A. 1st, November 9, 2016.)

Perez v. City of Westminster (2016) _ Cal.App.5th _ , 2016 WL 6298797: The Court of Appeal affirmed the trial court’s ruling that defendant did not violate plaintiff’s rights under the Public Safety Officers Procedural Bill of Rights Act (Government Code, section 3300 et seq.) Plaintiff was given a notice of intent to terminate his employment based on an alleged lack of honesty and cooperation in the investigation of a claim of police brutality. Plaintiff appealed the decision to terminate his employment, and the chief of police concluded the allegations against plaintiff could not be sustained. Plaintiff’s employment was not terminated, but he was removed from the SWAT team and the honor guard, and, although he remained a field training officer, he was not assigned any trainees. The Court of Appeal ruled that substantial evidence amply supported the trial court’s decision. (C.A. 4th, filed October 20, 2016, published November 9, 2016.)

Soria v. Univision Radio Los Angeles (2016) _ Cal.App.5th _ , 2016 WL 6746448: Because material issues of fact existed regarding each of plaintiff’s claims, the Court of Appeal reversed the trial court’s summary judgment for defendant in an action by former on-air radio personality plaintiff for disability discrimination, wrongful termination and related employment claims. (C.A. 2nd, November 15, 2016.)

Tanguilig v. Bloomingdale’s (2016) _ Cal.App.5th _ , 2016 WL 6778788: See summary above under Arbitration.

Thaxton v. State Personnel Board (2016) _ Cal.App.5th _ , 2016 WL 6777825: The Court of Appeal reversed the trial court’s order granting a writ petition ordering that petitioner be reinstated to his former correctional officer position and receive back pay and interest. Although petitioner filed an appeal of his dismissal with the State Personnel Board, he failed to appear for the evidentiary hearing, avoided service of a subpoena, refused to let his attorney accept service of a subpoena, and did not appear after being ordered to and being told of the order by his attorney. Under these circumstances, the administrative law judge’s dismissal of petitioner’s appeal was appropriate, and the trial court erred in granting the writ petition. (C.A. 4th, November 16, 2016.)

Evidence

Midland Funding v. Romero (2016) _ Cal.App.5th _ , 2016 WL 6781099: The Appellate Division of the Orange County Superior Court reversed the trial court’s order overruling defendant’s objections to a declaration in lieu of live testimony. The trial court erred in admitting the declaration. It did not comply with the requirement of Code of Civil Procedure Section 92 that the witness must provide an address within 150 miles of the place of trial and be available for service of process. In addition, the declaration did not properly authenticate the attached documents, and the business records exception did not apply. Although the witness had personal knowledge that the documents were part of plaintiff’s business records, he did not satisfactorily establish that those documents were a part of the prior creditor’s business records under Evidence Code section 1271. (Appellate Division, Orange County Superior Court, November 16, 2016.)

Government

Brookside Investments v. City of El Monte (2016) _ Cal.App.5th _ , 2016 WL 6699477: The Court of Appeal affirmed the trial court’s summary judgment for defendant in an action by plaintiff alleging that defendant’s sponsorship of a ballot measure in 2012, to repeal a mobilehome park rent control ordinance that had been approved by initiative in 1990, violated the 1990 ordinance. The actions of defendant’s City Council in proposing and placing the measure on the 2012 election ballot were lawful. (C.A. 2nd, November 15, 2016.)

Perez v. City of Westminster (2016) _ Cal.App.5th _ , 2016 WL 6298797: See summary above under Employment.

Hospitals

Armin v. Riverside Community Hospital (2016) _ Cal.App.5th _ , 2016 WL 6779429: See summary above under Civil Procedure.

Physicians

Armin v. Riverside Community Hospital (2016) _ Cal.App.5th _ , 2016 WL 6779429: See summary above under Civil Procedure.

Real Property

Brookside Investments v. City of El Monte (2016) _ Cal.App.5th _ , 2016 WL 6699477: See summary above under Government.

East Sacramento Partnership for a Livable City v. City of Sacramento (2016) _ Cal.App.5th _ , 2016 WL 6581170: The Court of Appeal reversed the trial court’s judgment denying a writ petition challenging a residential development project approval by respondent based upon alleged violations of the California Environmental Quality Act. Respondent relied on policies in its general plan that permitted congested traffic conditions within the core area of Respondent to find no significant impact of congested traffic on neighborhood streets. The Court of Appeal ruled that compliance with a general plan policy does not conclusively establish there is no significant environmental impact, and therefore respondent had failed to explain why there would be no significant traffic impacts. (C.A. 3rd, November 7, 2016.)

Torts

Lee v. West Kern Water District (2016) _ Cal.App.5th _ , 2016 WL 6212461: The Court of Appeal reversed the trial court’s order granting a motion for new trial, and affirmed its order denying a motion for judgment notwithstanding the verdict in an action where plaintiff obtained a verdict of $360,000 for assault and intentional infliction of emotional distress arising from a mock robbery staged by co-employees at plaintiff’s workplace. A central issue was whether or not the workers’ compensation exclusivity rule applied. The trial court erred when it granted the motion for new trial on the basis that it had given the jury an improper instruction on the workers’ compensation exclusivity rule. The Court of Appeal found the jury instructions were not erroneous. (C.A. 5th, filed October 24, 2016, published November 15, 2016.)

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