California Case Summaries Civil™
Summaries of Every New Published California Civil Case
By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee at ADR Services, Inc.
Civil Trial Lawyer | ABOTA National Board Member | Ca. attorney since 1980
For ADR Services, Inc. scheduling, contact my case manager Kelsey Carroll
Phone: (619) 233-1323. Email: kelsey@adrservices.org
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CALIFORNIA SUPREME COURT
Civil Code
McMillin Albany LLC v. Superior Court (2018) _ Cal.5th _ , 2018 WL 456728: The California Supreme Court affirmed the Court of Appeal’s decision granting a writ petition and ordering a stay of a common law construction defect claim until completion of the prelitigation process in the Right to Repair Act (Act; Civil Code section 895-945.5.). The California Supreme Court ruled the suit for property damage was subject to the Act’s prelitigation procedures. (January 18, 2018.)
CALIFORNIA COURTS OF APPEAL
Attorney Fees
Artus v. Gramercy Towers Condominium Ass’n. (2018) _ Cal.App.5th _ , 2018 WL 526741: See summary below under Civil Code.
Bustos v. Global P.E.T., Inc. (2018) _ Cal.App.5th _ , 2017 WL 6947674: The Court of Appeal affirmed the trial court’s order denying plaintiff’s motion for attorney fees requesting $454,857.90 pursuant to Government Code section 12965(b) and the Supreme Court’s holding in Harris v. City of Santa Monica (2013) 56 Cal.4th 203. Plaintiff made the fee motion after the jury found that plaintiff’s physical condition or perceived physical condition was “a substantial motivating reason” for his termination. The jury, however, also found that defendant’s conduct was not a substantial factor in causing harm to plaintiff and returned a defense verdict. The Court of Appeal ruled that the trial court did not abuse its discretion in denying the motion for attorney fees. (C.A. 4th, filed December 22, 2017, published January 16, 2018.)
Land Partners, LLC v. County of Orange (2018) _ Cal.App.5th _ , 2018 WL 345329: The Court of Appeal affirmed the trial court’s order denying a motion for attorney fees under Revenue and Taxation Code section 5152 after plaintiff had prevailed on its tax refund lawsuit. A factual finding by the court that the reason the assessor did not apply a particular provision was that he or she believed it to be unconstitutional or invalid is a prerequisite to an attorney fee award under this section, and the trial court made no such finding. (C.A. 4th, filed January 10, 2018, published January 22, 2018.)
Attorneys
CA Self-Insurers’ Security Fund v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 561707: The Court of Appeal granted a writ petition and directed the trial court to vacate its order disqualifying Nixon Peabody LLP (Nixon Peabody) from representing plaintiff in the case. The issue arose after an attorney left Michelman & Robinson, where he had represented some of the defendants in this action, and briefly worked at Nixon Peabody. He did not work on plaintiff’s case while he worked at Nixon Peabody, the Nixon Peabody lawyers working on the case stated they did not obtain confidential information from him, and Nixon Peabody indicated that it put up an “ethical” wall while the lawyer was at the firm. The trial court erred in finding that automatic disqualification was required. The Court of Appeal directed the trial court to determine whether confidential information was transmitted to Nixon Peabody, or whether, in the court’s discretion, other compelling reasons dictated that the firm should be disqualified. (C.A. 4th, January 26, 2018.)
Civil Code
Artus v. Gramercy Towers Condominium Ass’n. (2018) _ Cal.App.5th _ , 2018 WL 526741: The Court of Appeal affirmed the trial court’s judgment for defendant, following a bench trial, on plaintiff’s claims that defendant had violated the Davis-Stirling Common Interest Development Act (Davis-Stirling Act; Civil Code section 4000 et seq.), and the trial court’s denial of plaintiff’s request for attorney fees even though she had obtained a preliminary injunction. The trial court properly found for defendant following the bench trial. Regarding the fee request, neither the language of the Davis-Stirling Act, nor the legislative history of the fee provision invoked by plaintiff evidences any intent on the part of the Legislature to depart from well-established principles that fees and costs are ordinarily not granted for interim success. The prevailing party is determined after the conclusion of the litigation. (C.A. 1st, January 24, 2018.)
Centex Homes v. St. Paul Fire & Marine Ins. Co. (2018) _ Cal.App.5th _ , 2018 WL 494749: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment against cross-complainant Centex Homes’ (Centex) cause of action against cross-defendant St. Paul Fire & Marine Ins. Co. (St. Paul) seeking a declaration that Centex was entitled to independent counsel under Civil Code section 2860 because St. Paul’s reservation of rights allegedly created significant conflicts of interest. Centex developed a residential project and was sued by the homeowners. St. Paul was an insurer for subcontractor Ad Land Venture (Ad Land) and agreed to defend Centex as an additional insured subject to a reservation of rights. St. Paul appointed defense counsel that defended only Centex. Neither Civil Code section 2860 nor Rule 3-310 of the Rules of Professional Conduct required that Centex get an independent counsel under section 2860. St. Paul did not control both sides of the litigation. Moreover, Centex failed to establish a triable issue of material fact on the question of whether the defense counsel could have controlled the coverage dispute between Centex and St. Paul. (C.A. 3rd, January 22, 2018.)
MTC Financial, Inc. v. Nationstar Mortgage (2018) _ Cal.App.5th _ , 2018 WL 495318: The Court of Appeal affirmed the trial court’s order concluding that defendant Nationstar Mortgage (Nationstar) was the senior lienholder and pursuant to Civil Code section 2924k was not entitled to any of the $73,085.50 surplus following a nonjudicial foreclosure sale. Although the Nationstar mortgage trust deed was recorded on the same day and time as a home equity line of credit trust deed, because they were from the same lender, the home equity should have been treated as a second lien, not a first. Absent evidence of timing that was determinative, the trial court reasonably relied on the apparent intent of the parties to determine the priority of the two liens. (C.A. 1st, January 22, 2018.)
SMS Financial v. Cornerstone Tile Company (2018) _ Cal.App.5th _ , 2018 WL 564588: The Court of Appeal reversed the trial court’s order sustaining defendant’s demurrer to plaintiff’s cause of action for damages under Civil Code section 2941 arising from defendant’s preparation, execution and recordation of a release of a deed of trust. The trial court erred in sustaining the demurrer because, under section 2941(b)(6), plaintiff, as the holder of an obligation, had the right to prove damages against defendant as the title company that had recorded a release of the obligation. (C.A. 1st, January 26, 2018.)
Civil Procedure
Communities for Better Environment v. State Energy Resources and Conservation and Development Commission (2018) _ Cal.App.5th _ , 2017 WL 6546950: See summary below under Government.
Gaynor v. Bulen (2018) _ Cal.App.5th _ , 2018 WL 505345: The Court of Appeal affirmed the trial court’s order denying an anti-SLAPP motion to strike a surcharge petition against cotrustees of a trust and defendant alleging breach of fiduciary duty for taking numerous actions to benefit themselves at the expense of the other beneficiaries. The trial court properly denied the anti-SLAPP motion. To trigger anti-SLAPP protection, the moving party has the initial burden to show the plaintiff alleges constitutionally-protected activity and the claim arises from this activity. Although the surcharge petition included allegations that defendant engaged in constitutionally-protected activity (his actions in prior probate litigation), defendant did not meet his burden to show the claims against him arose from this litigation activity. Defendant’s involvement in the prior probate litigation constituted evidence of his alleged breaches of loyalty, i.e. his alleged formulation of a plan to benefit himself to the detriment of plaintiff beneficiaries and the alleged improper use of trust assets to implement that plan. Without more, the trustee’s breach of loyalty, including the use or misuse of trust funds, was not constitutionally protected. (C.A. 4th, January 23, 2018.)
Khan v. Dunn-Edwards Corp. (2018) _ Cal.App.5th _ , 2018 WL 286356: See summary below under Employment.
Machavia, Inc. v. County of Los Angeles (2018) _ Cal.App.5th _ , 2017 WL 6629380: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment in a tax refund case regarding two small jets owned by plaintiff. The trial court properly ruled that plaintiff had failed to exhaust its administrative remedies before filing suit. (C.A. 2nd, filed December 29, 2017, published January 25, 2018.)
Class Actions
Duran v. U.S. Bank National Association (2018) _ Cal.App.5th _ , 2018 WL 456769: The Court of Appeal affirmed the trial court’s denial of a motion for class certification in a wage and hour class action case. Plaintiff alleged that defendant had improperly classified its business banking officers as exempt employees under the outside salesperson exemption, which applies to employees who spend more than 50 percent of their workday engaged in sales activities outside their employer’s place of business. The Court of Appeal ruled that substantial evidence supported the trial court’s findings that plaintiffs had satisfied the requirements of ascertainability, numerosity, and adequacy of representation but failed to show that common questions of law or fact predominated over individual issues. Moreover, the trial court properly concluded that class treatment was not superior to other means of resolving the claims because individual issues could not be properly managed. (C.A. 1st, January 17, 2018.)
Lampe v. Queen of the Valley Medical Center (2018) _ Cal.App.5th _ , 2018 WL 509419: The Court of Appeal affirmed the trial court’s order denying class certification in a class action alleging wage and hour claims against defendant. Substantial evidence supported the trial court’s findings that individualized issues predominated and the claims could not be proven efficiently as a class. The trial court did not abuse its discretion in denying class certification. (C.A. 1st, filed January 2, 2018, published January 23, 2018.)
Education
California School Bds. Assn. v. State of California (2018) _ Cal.App.5th _ , 2018 WL 417118: The Court of Appeal affirmed in part and reversed in part the trial court’s judgment. In the published portion of the opinion, the Court of Appeal affirmed the trial court’s denial of the motion for a writ of mandate as to the second cause of action in the third amended petition. The Court of Appeal ruled that Government Code section 17557(d)(2)(B), as applied in Education Code sections 42238.24 and 56523(f), does not violate the state’s constitutional obligation to reimburse local governments for the costs of mandated programs, and it does not violate the separation of powers doctrine. In the unpublished portion, the Court of Appeal reversed the trial court’s denial of a motion for leave to amend and its subsequent dismissal of the remaining causes of action. (C.A. 1st, January 16, 2018.)
Employment
Bustos v. Global P.E.T., Inc. (2018) _ Cal.App.5th _ , 2017 WL 6947674: See summary above under Attorney Fees.
Duran v. U.S. Bank National Association (2018) _ Cal.App.5th _ , 2018 WL 456769: See summary above under Class Actions.
Khan v. Dunn-Edwards Corp. (2018) _ Cal.App.5th _ , 2018 WL 286356: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment on the basis that plaintiff failed to provide adequate notice to the relevant agency before filing his lawsuit against his former employer alleging violations of Labor Code section 2698, the Labor Code Private Attorneys General Act of 2004 (PAGA). Plaintiff’s notice was inadequate under section 2699.3 because it only asserted his individual claims. The trial court properly ruled that compliance with the pre-filing notice and exhaustion requirements are mandatory and that plaintiff failed to comply with them. (C.A. 2nd, filed January 4, 2018, published January 22, 2018.)
Lampe v. Queen of the Valley Medical Center (2018) _ Cal.App.5th _ , 2018 WL 509419: See summary above under Class Actions.
Government
California School Bds. Assn. v. State of California (2018) _ Cal.App.5th _ , 2018 WL 417118: See summary above under Education.
Communities for Better Environment v. State Energy Resources and Conservation and Development Commission (2018) _ Cal.App.5th _ , 2017 WL 6546950: The Court of Appeal reversed the trial court’s order sustaining a demurrer without leave to amend to a complaint seeking a declaration that subsections (a) and (b) of Public Resources Code section 25531 are unconstitutional on their face. The trial court sustained the demurrer because it felt the matter was not ripe for determination. The Court of Appeal disagreed and ruled that the trial court erred. The Court of Appeal held that the ripeness requirement should not operate to prevent the trial court from resolving the concrete dispute before it, given that the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a specific legal question. (C.A. 1st, filed December 22, 2017, published January 19, 2018.)
Lippman v. City of Oakland (2018) _ Cal.App.5th _ , 2017 WL 6547075: The Court of Appeal reversed the trial court’s judgment denying a petition for writ of mandate. On remand, the trial court was directed to issue a writ of mandate compelling respondent to establish an appeals board or authorized agency to hear appeals or provide for an appeal to its governing body as required by California Building Code section 1.8.8. Petitioner’s writ sought to compel respondent to have an appeals board or the governing body of respondent review his citations for blight and substandard living conditions on his rental property. The trial court erred in concluding that respondent’s administrative appeals process complied with the Building Code. (C.A. 1st, filed December 22, 2017, published January 22, 2018.)
Insurance
Centex Homes v. St. Paul Fire & Marine Ins. Co. (2018) _ Cal.App.5th _ , 2018 WL 494749: See summary above under Civil Code.
Probate
Estate of Kerkorian (2018) _ Cal.App.5th _ , 2018 WL 480325: The Court of Appeal affirmed the trial court’s order, pursuant to Probate Code section 11704, authorizing the executor of Kirk Kerkorian’s (Kerkorian’s) estate to oppose a petition filed by Kerkorian’s former wife seeking a third of her late husband’s assets. The probate court expressly found good cause to permit the executor to participate in the action as he proposed, namely, as a litigant opposing petitioner’s motion to obtain one-third of Kerkorian’s estate, and that good cause determination was well within the court’s broad discretion. (C.A. 2nd, January 19, 2018.)
Gaynor v. Bulen (2018) _ Cal.App.5th _ , 2018 WL 505345: See summary above under Civil Procedure.
Real Property
Lippman v. City of Oakland (2018) _ Cal.App.5th _ , 2017 WL 6547075: See summary above under Government.
MTC Financial, Inc. v. Nationstar Mortgage (2018) _ Cal.App.5th _ , 2018 WL 495318: See summary above under Civil Code.
SMS Financial v. Cornerstone Tile Company (2018) _ Cal.App.5th _ , 2018 WL 564588: See summary above under Civil Code.
Taxes
Land Partners, LLC v. County of Orange (2018) _ Cal.App.5th _ , 2018 WL 345329: See summary above under Attorney Fees.
Trial
Arave v. Merrill Lynch, Pierce etc. (2018) _ Cal.App.5th _ , 2018 WL 509462: The Court of Appeal granted a request to publish part II.C. of its opinion filed on January 2, 2018 (see the January 15, 2018 issue of California Case Summaries Civil™ for this summary). In the newly published section, the Court of Appeal rejected appellant’s arguments alleging numerous incidents of trial court bias. (C.A. 4th, January 23, 2018.)
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