California Case Summaries Civil™
Summaries of Every New Published California Civil Case
By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee at ADR Services, Inc.
For ADR Services, Inc. scheduling, contact my case manager Kelsey Carroll
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Civil Trial Lawyer | ABOTA National Board Member | Ca. attorney since 1980
To discuss potential representation in a civil case, contact Monty McIntyre
Phone: (619) 990-4312. Email: monty@montymcintyre.com
Law Web: http://montymcintyre-law.com/law
CALIFORNIA COURTS OF APPEAL
Attorney Fees
Burkhalter Kessler Clement & George, LLP v. Hamilton (2018) _ Cal.App.5th _ , 2018 WL 316444: The Court of Appeal reversed the trial court’s order denying attorney fees to a defendant who was a prevailing party. Plaintiff sued defendant Eclipse Group LLP (Eclipse) for breach of a sublease with an attorney fees clause. Plaintiff also named defendant Jennifer Hamilton (Hamilton), a managing partner of Eclipse, as an alter ego of Eclipse. Plaintiff prevailed against defendant Eclipse when its summary judgment motion was granted. Defendant Hamilton won a motion for dismissal with prejudice of the claims against her. The Court of Appeal ruled that, in some lawsuits involving more than two parties, there may be more than one “prevailing party” entitled to contractual attorney fees under Civil Code section 1717.1. It ruled that both plaintiff and defendant Hamilton were prevailing parties on the contract and directed the trial court to award defendant Hamilton reasonable attorney fees that were incurred by her attorneys solely in her defense. (C.A. 4th, January 8, 2018.)
Heron Bay Homeowners Assn. v. City of San Leandro (2018) _ Cal.App.5th _ , 2018 WL 387122: The Court of Appeal affirmed the trial court’s partial award of attorney fees of $181,471.70 (out of the $483,321.00 requested) to petitioner under Code of Civil Procedure section 1021.5 after it prevailed in a writ petition that resulted in an order to respondent to set aside its approvals of a wind turbine development project and comply with the California Environmental Quality Act by preparing an environmental impact report (EIR). The Court of Appeal found that petitioner met its burden of proving the financial burden of the litigation transcended the value of its private pecuniary interests, making a partial award appropriate. The fee motion provided detailed information regarding petitioner’s litigation costs, and correctly pointed out that petitioner and its members received no “reasonably certain financial benefit” by securing an order directing respondent to prepare an EIR. On appeal, petitioner and real parties in interest, Halus Power Systems and Louis A. Rigaud individually and dba Halus Power Systems, had the burden of proving the trial court abused its discretion in granting the partial fee award but failed to satisfy this burden. (C.A. 1st, January 12, 2018.)
Civil Code
Burkhalter Kessler Clement & George, LLP v. Hamilton (2018) _ Cal.App.5th _ , 2018 WL 316444: See summary above under Attorney Fees.
Civil Procedure
Central Valley Hospitalists v. Dignity Health (2018) _ Cal.App.5th _ , 2018 WL 328739: The Court of Appeal affirmed the trial court’s order denying an anti-SLAPP motion to strike. The trial court properly ruled that defendant was unable to prove that defendant’s acts alleged in the complaint arose from protected activity. Plaintiff’s complaint alleged no real factual allegations. Defendant argued the complaint had to arise from peer review activity. However, where a plaintiff does not allege any acts committed by the defendant supporting the plaintiff’s claims, the defendant necessarily is unable to meet its first prong burden of showing that the defendant’s acts alleged by the plaintiff arise from protected activity. The Court of Appeal also expressed concern about potential abuse by defendant of its right to appeal the denial of its anti-SLAPP motion to delay the case and make it more costly to plaintiffs. (C.A. 1st, January 9, 2018.)
Golden Eagle Land Inv. v. Rancho Santa Fe Assn. (2018) _ Cal.App.5th _ , 2018 WL 387126: The Court of Appeal affirmed part of the trial court’s order granting an anti-SLAPP motion to strike most of the causes of action in a complaint, and reversed the trial court’s order denying the anti-SLAPP motion as to one cause of action. Plaintiffs’ complaint alleged numerous statutory and tort theories arising from defendant’s alleged actions that plaintiffs claimed had unfairly prejudged a proposed development project. The Court of Appeal affirmed the trial court’s order granting the motion to strike as to eight out of nine of the alleged causes of action. The Court of Appeal reversed the trial court’s order denying the motion to strike as to the remaining cause of action for alleged violations of the Common Interest Development Open Meeting Act (“Open Meeting Act,” Civil Code sections 4900 et seq.). Defendant’s challenged land use communications, on the subject of governmental entitlement applications, amount to protected conduct described in section 425.16(e)(4) as carried out “in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Moreover, based upon the record, plaintiff Golden Eagle Land Investment, L.P., the only plaintiff on the claim, could not show that it qualified as an association member who had standing under the Open Meeting Act and therefore could not establish a probability that it would prevail on its claim. (C.A. 4th, January 12, 2018.)
Class Actions
ABM Industries Overtime Cases (2018) _ Cal.App.5th _ , 2017 WL 6887032: The Court of Appeal reversed the trial court’s order denying class certification in a wage and hour action alleging that defendant failed to properly record and compensate employees for meal breaks, required employees to work split shifts without appropriate compensation, and failed to ensure that employees were reimbursed for expenses incurred when traveling between work sites. The Court of Appeal ruled that the trial court’s wholesale exclusion of plaintiffs’ expert evidence as an expert in database management and analysis was error, and the trial court’s refusal to grant class certification was an abuse of discretion. (C.A. 1st, filed December 17, 2017, published January 10, 2018.)
Patricia A. Murray Dental Corp. v. Dentsply Int’l., Inc. (2018) _ Cal.App.5th _ , 2018 WL 345049: The Court of Appeal affirmed the trial court’s judgment for defendant, following a bench trial, in a class action by plaintiff dentists against defendant alleging unfair competition and breach of warranty. The Court of Appeal ruled that substantial evidence supported the trial court’s findings. The trial court found that plaintiffs, as licensed California dentists, were well aware that biofilm forms in all dental waterlines and that Cavitron scaling devices do not produce sterile water. So they already knew the facts which they claimed ought to have been disclosed, and the evidence failed to establish that the class was likely to be misled. Moreover, the dentists did not understand the warranty that the Cavitron was suitable for use in periodontal debridement for all types of periodontal diseases as a statement that the Cavitron delivered sterile water, or water without biofilm. (C.A. 1st, January 10, 2018.)
Contracts
Burkhalter Kessler Clement & George, LLP v. Hamilton (2018) _ Cal.App.5th _ , 2018 WL 316444: See summary above under Attorney Fees.
Elder Abuse
Fong v. East West Bank (2018) _ Cal.App.5th _ , 2018 WL 328736: The Court of Appeal reversed the trial court’s order granting summary judgment for defendant in an action alleging financial elder abuse. While plaintiff did not follow the procedural rules in opposing the summary judgment, the trial court ruled on the merits. The Court of Appeal ruled that there were questions of fact related to one alleged wrongful transfer. (C.A. 1st, January 9, 2018.)
Eminent Domain
Medical Acquisition Company v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 358366L: The Court of Appeal denied the writ petition seeking to challenge the trial court’s requirement that petitioner post a bond before it could withdraw all of the $12.2 million deposited by the condemning agency, Tri-City Healthcare District (Tri-City), following a judgment. Petitioner had previously withdrawn $4.7 million. After a jury trial where the property was valued at $17 million, the trial court ordered Tri-City to deposit an additional $12.2 million. Petitioner had requested that the trial court allow it to withdraw all of the additional funds without posting any bond. In an issue of first impression, the Court of Appeal ruled that any postjudgment withdrawal of a deposit in an eminent domain case is governed by Code of Civil Procedure section 1268.140. Under section 1260.140(c) the trial court may, in its discretion, impose an undertaking upon objection by any party to the proceeding. The trial court properly exercised its discretion by allowing petitioner to withdraw a portion of the deposit without a bond or undertaking but requiring an undertaking if petitioner wished to withdraw the remaining amount because Tri-City would have a claim to those fees if its appeal on abandonment of the eminent domain case was successful. Petitioner did not prove any abuse of discretion by the trial court. (C.A. 4th, January 11, 2018.)
Employment
Arave v. Merrill Lynch, Pierce, etc. (2018) _ Cal.App.5th _ , 2018 WL 259003: The Court of Appeal affirmed in large part, and reversed in part, a judgment for defendants following a jury trial that included an award of costs, expert fees and attorney fees to defendants in a case where plaintiff alleged several claims under the California Fair Employment and Housing Act (FEHA, Government Code, section 12900 et seq.) including claims of discrimination, harassment, and retaliation based on his membership in the Church of Jesus Christ of Latter-day Saints, and claims for nonpayment of wages (Labor Code, section 201) and whistleblower retaliation (Labor Code, section 1102.5). The Court of Appeal affirmed the jury verdict for defendants, but it concluded that the trial court erred by awarding $83,642.68 in costs and expert witness fees even though it found plaintiff’s FEHA claims were nonfrivolous and also erred by awarding $97,500 in attorney fees on the wage claim without determining whether that claim was frivolous. (C.A. 4th, January 2, 2018.)
Simers v. LA Times Communications (2018) _ Cal.App.5th _ , 2018 WL 305295: The Court of Appeal affirmed the trial court’s post trial rulings after a jury returned a verdict for plaintiff for $2,137,391 in economic damages and $5 million in noneconomic damages in a case alleging disability and age discrimination and constructive termination of plaintiff from his long time position as a columnist. The parties agreed to give a special verdict instructing the jury to fill in the blanks for past and future economic damages only if they found plaintiff was constructively terminated. The special verdict also allowed the jury to award past and future noneconomic damages without identifying which damages were caused by constructive termination and which were caused by discrimination. The trial court properly granted defendant’s motion for judgment notwithstanding the verdict on the constructive termination claim, and properly granted defendant’s motion for a new trial on all damages, economic and noneconomic, because it was not possible to determine what amount of noneconomic damages were awarded because of the discrimination but not because of the constructive discharge. The trial court properly denied defendant’s other post trial motions. (C.A. 2nd, January 5, 2018).
Stirling v. Brown (2018) _ Cal.App.5th _ , 2018 WL 286497: See summary below under Military.
Environment
Central Coast Forest Association v. Fish & Game Commission (2018) _ Cal.App.5th _ , 2018 WL 300188: After the California Supreme Court ruled that a petition to delist species from the endangered species list may be based on new evidence that challenges an earlier listing decision by showing that the listed species does not qualify for listing, the Court of Appeal reconsidered the ruling of the trial court that had overturned the decision of the Fish and Game Commission (Commission) to deny a petition to remove (delist) coho salmon south of San Francisco from the list of endangered species in California. The Court of Appeal reversed the trial court and affirmed the Commission’s decision, ruling that the petition lacked sufficient scientific evidence to justify delisting the coho salmon south of San Francisco. (C.A. 3rd, January 6, 2018.) City of Long Beach v. City of Los Angeles (2018) _ Cal.App.5th _ , 2018 WL 387934: See summary above under Real Property.
Clews Land & Livestock, LLC v. City of San Diego (2018) _ Cal.App.5th _ , 2017 WL 6818978: The Court of Appeal affirmed the trial court’s order denying plaintiff’s writ petition challenging respondent’s approval of a project to build a private secondary school on land neighboring petitioner’s commercial horse ranch and equestrian facility and respondent’s adoption of a mitigated negative declaration (MND) regarding the project. The Court of Appeal ruled that petitioner’s challenge to the MND was barred because it did not exhaust its administrative remedies. It further ruled that petitioner’s challenge failed on its merits, even assuming petitioner had exhausted its administrative remedies. Finally, the Court of Appeal ruled that respondent complied with all applicable requirements of the San Diego Municipal Code regarding historical resources, and respondent’s approval of the project did not conflict with the open space designation because the project would be located on already-developed land. (C.A. 4th, filed December 20, 2017, published January 8, 2018.)
Heron Bay Homeowners Assn. v. City of San Leandro (2018) _ Cal.App.5th _ , 2018 WL 387122: See summary above under Attorney Fees.
Evidence
Labor & Workforce Development Agency v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 316865: See summary below under Government.
Government
Alameda County Dep. Sheriff’s Assn. v. Alameda County Emp. Ret. Assn. (2018) _ Cal.App.5th _ , 2018 WL 317045: The Court of Appeal affirmed in part, reversed in part and remanded the trial court’s judgments because it concluded the trial court’s detailed analysis of the Public Employee Pension Reform Act of 2013’s (PEPRA or the Pension Reform Act) effects on the pensions of legacy members was incorrect in certain respects and also improperly failed to include a necessary vested rights analysis. Although the trial court properly concluded that PEPRA did not change existing law with respect to in-service leave cash-outs, it erred in its assessment of when such cash-outs are earned for purposes of the County Employees Retirement Law of 1937 (CERL). Contrary to the trial court’s determination, leave cash-outs must be included in a member’s pensionable compensation, regardless of when the leave time was accrued, to the extent that member exercises his or her employer-granted option to convert the leave into cash during the final compensation period. Further, although the trial court appeared to have concluded that a limited vested right existed with respect to certain on-call payments, that court’s analysis of the legacy employees’ vested rights was inadequate. (C.A. 1st, January 8, 2018.)
City of Modesto v. Dow Chemical Co. (2018) _ Cal.App.5th _ , 2018 WL 317043: The Court of Appeal affirmed in part, reversed in part, and vacated in part a judgment entered in a case where plaintiff sued dry cleaning businesses and the manufacturers of dry cleaning equipment for causing plaintiff’s groundwater, sewer system and easements, and the soil of property located within the city to become contaminated with perchloroethylene. In the published portion of its opinion, the court held that no special causation standard applies to claims brought against chemical manufacturers under the Polanco Redevelopment Act (Health & Safety Code, section 33459 et seq.). The Court of Appeal ruled that a manufacturer of dry cleaning chemicals may be held liable for soil contamination where it is more likely than not that the manufacturer’s improper instructions, and any other relevant conduct, were a substantial factor in causing the pollution. Thus, those manufacturers who took affirmative steps directed toward the improper discharge of solvent wastes may be held liable, while those who merely placed solvents in the stream of commerce and failed to warn of the dangers of improper disposal were excluded from liability. (C.A. 1st, January 8, 2018.)
Labor & Workforce Development Agency v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 316865: The Court of Appeal granted a writ petition and ordered the trial court to vacate its order requiring the California Labor and Workforce Development Agency (Agency) to produce an index identifying the author, recipient (if any), general subject matter of the document, and the nature of the exemption claimed to justify withholding information in response to a request for documents under the Public Records Act (Government Code section 6250 et seq.). The requested documents were any and all public records referring or relating to communications between the Agency, its officers, and its staff and the United Farm Workers of America regarding the enactment of Assembly Bill 1513 codified in Labor Code section 226.2 (Stats. 2015, ch. 754, § 5 (2015 – 2016 Reg. Sess.) eff. Jan. 1, 2016). Based on the California Supreme Court’s guidance in Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, the Court of Appeal ruled that the trial court’s order erred in requiring disclosure of matters protected by the deliberative process privilege in Government Code section 6255 and the attorney work product privilege in Code of Civil section 2018.030. (C.A. 3rd, January 8, 2018.)
Medical Board of California v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 316557: See summary below under Physicians.
Liens
Martinez v. Dept. of Health Care Services (2018) _ Cal.App.5th _ , 2017 WL 6939086: The Court of Appeal modified in part and affirmed the rest of the trial court’s determination of the amount of the Medi-Cal lien that petitioner owed to respondent as a result of the settlement of his medical malpractice claim for $150,000. The trial court determined the value of petitioner’s case by adding the $250,000 maximum amount of noneconomic damages allowed under Civil Code section 3333.2 to the $86,676.46 in medical costs, for a total potential value of $336,676.46. The trial court properly found there was no evidence of lost earnings or earning capacity. The trial court calculated that the $150,000 settlement represented 45 percent of the $366,676.46 value of the case and awarded respondent 45 percent of its $86,676.46 claim or $39,004.41. Both parties agreed that the trial court erred in failing to reduce the amount of the lien by 25 percent for attorney fees as required by Welfare & Institutions Code section 14124.72(d). The Court of Appeal reduced the lien by 25 percent to $29,253.31, but in all other respects it affirmed the trial court’s decision. (C.A. 2nd, filed December 13, 2017, published January 12, 2018.)
Medical Malpractice
Martinez v. Dept. of Health Care Services (2018) _ Cal.App.5th _ , 2017 WL 6939086: See summary above under Liens.
Military
Stirling v. Brown (2018) _ Cal.App.5th _ , 2018 WL 286497: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to a writ petition seeking to compel the Governor of California to act on a whistleblower allegation made under the California Military Whistleblower Protection Act, Military and Veterans Code section 56, subdivisions (d) and (f)(1). The Court of Appeal ruled that section 56 is unambiguous and its plain language does not require the Governor to undertake the procedures required of the inspector general in response to a whistleblower allegation. It also ruled that section 56 does not violate California’s equal protection clause because, in all cases, a whistleblower allegation is referred to an impartial decision maker who has discretion whether to undertake a full investigation. (C.A. 4th, January 4, 2018.)
Physicians
Medical Board of California v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 316557: The Court of Appeal granted a writ petition filed by petitioner Medical Board of California that ordered the trial court to vacate its order granting a writ petition filed by Dr. Brandon Erdle that had set aside a decision by an administrative law judge ruling that cause for discipline existed against Dr. Erdle related to his possession of cocaine, his physician’s and surgeon’s certificate should be “publically reproved,” and any subsequent reinstatement of his license should be on a probationary basis. In an issue of first impression, the Court of Appeal ruled that Business and Professions code section 492 creates a blanket exemption from the restrictions on the use of arrest records contained in Penal Code section 1000.4 for licensing decisions made by the healing arts agencies referenced in section 492. (C.A. 1st, January 8, 2018.)
Real Property
City of Long Beach v. City of Los Angeles (2018) _ Cal.App.5th _ , 2018 WL 387934: The Court of Appeal affirmed in part and reversed in part the trial court’s order related to the certification of the final environmental impact report (FEIR) relating to, and approving, the proposed construction by BNSF Railway Company (BNSF) of a new railyard approximately four miles from the Port of Los Angeles. The trial court’s judgment was affirmed insofar as it granted the consolidated petitions for a peremptory writ of mandate directing respondents to set aside certification of the FEIR and specified actions and approvals predicated on the certification, and to suspend project activities until respondents have taken the necessary actions to comply with the California Environmental Quality Act (CEQA). The judgment was also affirmed insofar as it implied that compliance with CEQA required correction of inadequacies in the FEIR’s analysis of air quality impacts. Insofar as the judgment implied that compliance with CEQA required correction of deficiencies in the FEIR’s analysis of impacts related to the Hobart railyard, greenhouse gas emissions, noise, transportation and the cumulative impact of the Intermodal Container Transfer Facility on noncancer health risks, and specification of mitigation measures related to air quality impacts and noise impacts, the judgment was reversed. (C.A. 1st, January 12, 2018.)
Clews Land & Livestock, LLC v. City of San Diego (2018) _ Cal.App.5th _ , 2017 WL 6818978: See summary above under Environment.
Guan v. Hu (2018) _ Cal.App.5th _ , 2018 WL 388269: The Court of Appeal affirmed the trial court’s findings, after a bench trial, that rejected plaintiff’s fraud and rescission claims but found for plaintiff on his breach of contract claim against defendant regarding a residence in Malibu. The trial court properly ordered that the property be sold and the proceeds apportioned between the parties in accordance with the contract. The trial court properly charged defendant’s share with imputed rent, and credited to defendant the payments she made for property-related expenses. (C.A. 2nd, January 12, 2018.)
McBride v. Smith (2018) _ Cal.App.5th _ , 2018 WL 286802: The Court of Appeal reversed the trial court’s order sustaining demurrers, without leave to amend, and its later award of attorney fees to defendants in an action between landowners where plaintiff alleged defendants violated plaintiff’s rights with respect to a recorded easement. The Court of Appeal ruled that plaintiff had stated causes of action for nuisance and prescriptive easement, and the trial court erred in sustaining demurrers as to those claims. (C.A. 1st, January 4, 2018.)
Torts
City of Modesto v. Dow Chemical Co. (2018) _ Cal.App.5th _ , 2018 WL 317043: See summary above under Environment. Rasmussen v. Lazarus (2018) _ Cal.App.5th _ , 2018 WL 316863: The Court of Appeal affirmed the trial court’s order denying defendant’s motion to dismiss and its judgment for $10 million in favor of plaintiffs against defendant for the wrongful death of their daughter in 1986. Plaintiffs filed their action after defendant had been arrested, but before her criminal trial. Defendant was convicted while the civil action was pending. Four years after the conviction, with the civil case still in pretrial, defendant moved to dismiss the case on the basis that the lawsuit had been filed before, not after, her conviction and hence could not fall within one year statute of limitation in California Code of Civil Procedure section 340.3(a). The Court of Appeal affirmed the trial court, ruling that defendant waived prematurity by not timely raising it, any prematurity was cured by the time defendant raised the issue in her motion to dismiss, and by law, the equities supported disregarding defendant’s prematurity plea in abatement. (C.A. 2nd, January 8, 2018.)
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