By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee
For ADR Scheduling: contact Kelsey@adrservices.org
Civil Trial Lawyer & ABOTA Member
California attorney since 1980
Phone: (619) 990-4312 | Email: monty@montymcintyre.com
www.montymcintyre.com
CALIFORNIA COURTS OF APPEAL
Arbitration
Montano v. Wet Seal Retail, Inc. (2015) 232 Cal.App.4th 1214: The Court of Appeal affirmed the trial court’s order denying defendant’s motion to compel arbitration. Plaintiff’s putative class action alleged that defendant failed to offer all required meal and rest periods to its California non-exempt retail employees; failed to provide all regular and overtime pay when due or when employment terminated; and failed to provide accurate semi-monthly itemized wage statements, in violation of the Labor and Business and Professions Codes, Industrial Welfare Commission Wage Order No. 7, and Title 8 of the California Code of Regulations. Plaintiff brought this action on behalf of herself and as a class action. The complaint included a representative claim under the Private Attorneys General Act (PAGA) (Labor Code, section 2699). The trial court properly ruled that the PAGA waiver was invalid and properly applied the arbitration agreement‘s nonseverability provision to conclude the arbitration provision was void and unenforceable. The trial court also properly granted a motion to compel discovery because, when the court ruled on the discovery motion, the motion to compel arbitration was no longer pending and had been denied. Under these circumstances, there was no obligation to stay the action under Code of Civil Procedure section 1281.4. (C.A. 2nd, filed on January 7, 2015, modified on January 13, 2015, reposted on January 30, 2017, upon the lifting of the bankruptcy stay order.)
Vasserman v. Henry Mayo Newhall Memorial Hospital (2017) _ Cal.App.5th _ , 2017 WL 491700: The Court of Appeal affirmed the trial court’s order denying defendant’s motion to compel arbitration in a class action case where plaintiff sued her former employer for violations of the California Labor Code and other statutes relating to meal and rest breaks, unpaid wages, and unpaid overtime compensation. Defendant argued that a collective bargaining agreement between it and the California Nurses Association required arbitration of the claims. The Court of Appeal ruled that, while the collective bargaining agreement required arbitration of claims arising under the agreement, it did not include an explicitly stated, clear and unmistakable waiver of the right to a judicial forum for claims based on statute. The motion to compel arbitration was properly denied. (C.A. 2nd, February 7, 2017.)
Attorney Fees
Leighton v. Forster (2017) _ Cal.App.5th _ , 2017 WL 527320: The Court of Appeal affirmed the trial court’s summary judgment for defendant in an action where an attorney sued for alleged attorney fees owing in excess of $114,000. The trial court properly granted summary judgment because (1) an engagement letter plaintiff emailed to defendant’s husband was not a valid contract because it was never signed (Business & Professions Code, section 6148), and (2) any claim for payment of the reasonable value of plaintiff’s services was barred by the two-year statute of limitations (Code of Civil Procedure, section 339). (C.A. 1st, February 9, 2017.)
Civil Code
Blanchette v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 541939: The Court of Appeal granted a writ petition and directed the trial court to vacate its order staying a construction defect lawsuit filed by plaintiff pending plaintiff’s compliance with the Right to Repair Act (the Act). (Civil Code, section 895 et seq.) Plaintiff’s compliance with the Act was relieved by defendant builder’s failure to timely acknowledge (within 14 days) receipt of plaintiff’s notice of a claim. (C.A. 4th, February 10, 2017.)
Civil Procedure (Anti-SLAPP, Discovery, Nuisance, Statute of Frauds)
Citizens For Odor Nuisance Abatement v. City of San Diego (2017) _ Cal.App.5th _ , 2017 WL 526503: The Court of Appeal affirmed the trial court’s summary judgment for defendant in an action for an alleged public nuisance caused by noxious sea lion waste odors permeating the picturesque La Jolla Cove. The trial court properly granted summary judgment because defendant did not have a duty to prevent harms caused by wild animals, there was no triable issue that defendant’s conduct caused the alleged nuisance, and Civil Code section 3482 barred nuisance liability. (C.A. 4th, February 9, 2017.) Daniel v. Wayans (2017) _ Cal.App.5th _ , 2017 WL 526494: The Court of Appeal affirmed the trial court’s order granting an anti-SLAPP motion to strike and awarding attorney fees to defendant in an action where plaintiff alleged he was the victim of racial harassment because during his one day of work on a movie he was compared to a black cartoon character and called “nigga.” The trial court properly granted the motion to strike. Plaintiff’s claims arose from defendant’s constitutional right of free speech because the core injury-producing conduct arose out of the creation of the movie and its promotion over the Internet, and plaintiff failed to establish the probability that he would prevail on the merits. (C.A. 2nd, February 9, 2017.)
Geraghty v. Shalizi (2017) _ Cal.App.5th _ , 2017 WL 347454: See summary below under Real Property.
Jacobs v. Locatelli (2017) _ Cal.App.5th _ , 2017 WL 510882: The Court of Appeal reversed the trial court’s order sustaining a demurrer without leave to amend in an action by a real estate broker alleging she was entitled to a real estate commission for her efforts to sell real property. Plaintiff alleged that, while certain owners did not sign the commission agreement, the owner who did sign the contract told her that he was signing as the agent of the others, who had formed a joint venture. The Court of Appeal ruled the trial court erred in sustaining the demurrer on the basis of the statute of frauds and the parole evidence rule because neither rule barred the action. (C.A. 6th, February 8, 2017.)
Jones v. Whisenand (2017) _ Cal.App.5th _ , 2017 WL 543329: The Court of Appeal reversed in part and affirmed in part the trial court’s order sustaining a demurrer without leave to amend in an action for legal malpractice and civil rights violations allegedly committed in the course of civil commitment proceedings under the Sexually Violent Predator Act (SVPA). (Welfare & Institutions Code, section 6600 et seq.) The Court of Appeal ruled the demurrer to the legal malpractice claim should have been sustained with leave to amend because alleged sexually violent predator’s should not be able to pursue causes of action for legal malpractice in the course of their SVPA proceedings unless and until such proceedings have been terminated in their favor, and plaintiff’s SVPA proceedings had not yet concluded. The Court of Appeal affirmed the trial court’s ruling on the civil rights claim under 42 United States Code, section 1983. (C.A. 3rd, February 10, 2017.)
Stella v. Asset Management Consultants, Inc. (2017) _ Cal.App.5th _ , 2017 WL 167529: The Court of Appeal affirmed the trial court’s judgment of dismissal entered after a judicial referee, appointed pursuant to Code of Civil Procedure, section 638, sustained without leave to amend the demurrers of all defendants to plaintiff’s first amended complaint for intentional misrepresentation, fraud by concealment and related common law and statutory causes of action arising from real estate investments. The referee properly applied the delayed discovery rule in determining the causes of action were barred by the statute of limitations, and the trial court properly enforced the judicial reference provisions in the limited partnership agreements at issue. (C.A. 2nd, filed January 17, 2017, published February 6, 2017.)
Van v. Language Line Services, Inc. (2017) _ Cal.App.5th _ , 2017 WL 345139: The Court of Appeal, treating the appeal as a writ of prohibition, annulled the trial court’s order finding petitioner in contempt of a court order and reversed and remanded for recalculation the trial court’s order sanctioning petitioner in the amount of $7,713. The prior court order petitioner was found to have disobeyed did not order her to attend a deposition and was not issued as a result of a motion to compel. It was instead only a denial of petitioner’s ex parte application to have her deposition stayed. There was no prior court order which petitioner disobeyed and no determination as to whether petitioner had a substantial justification for not attending her deposition or whether she had a valid objection to the various deposition notices served. (C.A. 6th, filed January 24, 2017, published February 1, 2017.)
Corporations (Limited Liability Companies)
Western Surety Co. v. La Cumbre Office (2017) _ Cal.5th _ , 2017 WL 445408: The Court of Appeal affirmed the trial court’s order granting summary judgment to plaintiff in an action by plaintiff for breach of an indemnity agreement. The indemnity agreement was signed by an individual on behalf of defendant (a limited liability company) as its managing member. However, he was not the managing member of defendant, but instead was the managing member of another limited liability company that was defendant’s manager, and defendant’s manager company did not have actual authority to execute the indemnity agreement on defendant’s behalf. The Court of Appeal ruled that the signature bound the defendant pursuant to former Corporations Code, section 17157(d) (now section 17703.01(d)) provided that the other party to the agreement did not have actual knowledge of the person’s lack of authority to execute the agreement on behalf of the limited liability company. (C.A. 2nd, February 2, 2017.)
Construction Defects
Blanchette v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 541939: see summary above under Civil Code.
Employment
Vasserman v. Henry Mayo Newhall Memorial Hospital (2017) _ Cal.App.5th _ , 2017 WL 491700: See summary above under Arbitration.
Government
Cuenca v. Cohen (2017) _ Cal.5th _ , 2017 WL 535406: In an action arising as a result of the elimination in California of redevelopment agencies, the Court of Appeal affirmed the trial court’s denial of a writ petition seeking to overturn the California Department of Finance’s (DOF) determination that approximately $30 million set aside under stipulated judgments with the City of Santa Ana was required to be remitted to the county auditor-controller. The trial court had affirmed DOF’s determination except for a $3.5 million loan pledged to Habitat for Humanity for construction of 17 affordable houses. The Court of Appeal ruled that the stipulated judgments meet the definition of enforceable obligations under the law dissolving redevelopment agencies. The stipulated judgments did not purport to prevent the Legislature from recapturing unspent tax increment funds by subsequent legislation, so the unencumbered moneys already set aside under the stipulated judgments had to be remitted to the county auditor-controller. (C.A. 3rd, February 6, 2017.)
Insurance
Medina v. GEICO Indemnity (2017) _ Cal.App.5th _ , 2017 WL 510878: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant in an action for breach of contract and insurance bad faith arising from defendant’s refusal to defend and indemnify its insured. Defendant’s auto policy provided coverage for use of non-owned vehicles but not if the non-owned vehicle was furnished for regular use. The insured driver was involved in an accident while driving a van her employer furnished to her to perform her duties but which she used for both business and personal purposes. At the time of the accident, the insured was running a personal errand during her work day. The Court of Appeal ruled that, since the insured was able to use the van for both business and personal purposes, and her personal use of the van at the time of the accident was not a departure from its customary use, the van was furnished to the insured for her regular use, and there was no coverage under the policy. (C.A. 5th, February 8, 2017.)
Mercury Casualty Co. v. Jones (2017) _ Cal.App.5th _ , 2017 WL 543322: The Court of Appeal affirmed the trial court’s judgment denying a writ petition seeking to overturn the decision of the California Insurance Commissioner’s (Commissioner) denial of petitioner’s request to raise its homeowner insurance policy rates. The trial court properly rejected petitioner’s arguments that the Commissioner applied the wrong standards and that the Commissioner misinterpreted the regulation defining institutional advertising. (C.A. 3rd, February 10, 2017.)
Labor
Orange County Water District v. Public Employment Relations Bd. (2017) _ Cal.App.5th _ , 2017 WL 432862: The Court of Appeal denied a writ petition filed by petitioner seeking to overturn the decision of respondent concluding that petitioner had committed an unfair practice, in violation of Government Code section 3502.5, when it refused to consent to an election petitioned for by the recognized employee organization seeking to implement a so-called modified agency shop. The Court of Appeal held that section 3502.5 authorized the proposed modified agency shop. (C.A. 4th, February 1, 2017.)
Legal Malpractice
Jones v. Whisenand (2017) _ Cal.App.5th _ , 2017 WL 543329: See summary above under Civil Procedure.
Real Property
Cuenca v. Cohen (2017) _ Cal.5th _ , 2017 WL 535406: See summary above under Government.
Fulle v. Kanani (2017) _ Cal.App.5th _ , 2017 WL 407997: The Court of Appeal affirmed the trial court’s order trebling economic damages, under Civil Code section 3346, for defendant’s wrongful act of cutting down the limbs and branches of six trees located on plaintiff’s property. However, the Court of Appeal reversed the trial court’s order declining to apply the multiplier to plaintiff’s damages for annoyance and discomfort. The Court of Appeal ruled that annoyance and discomfort damages are subject to the statutory damage multiplier for trespass to timber. (C.A. 2nd, January 31, 2017.)
Geraghty v. Shalizi (2017) _ Cal.App.5th _ , 2017 WL 347454: The Court of Appeal affirmed the trial court’s order granting summary judgment to defendant in an action by a former tenant alleging causes of action including violation of the San Francisco City rent ordinance and rescission of a buyout agreement where defendant landlord had paid plaintiff $25,000 to move into plaintiff’s apartment without an owner move-in eviction. The trial court properly rejected plaintiff’s argument that the release in the buyout agreement was invalid, and because the release extended to all of plaintiff’s causes of action the summary judgment was properly granted. (C.A. 1st, filed January 24, 2017, published February 10, 2017.)
Jacobs v. Locatelli (2017) _ Cal.App.5th _ , 2017 WL 510882: See summary above under Civil Procedure.
Kalnoki v. First American (2017) _ Cal.App.5th _ , 2017 WL 432846: In an action alleging wrongful foreclosure-related causes of action the Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend because plaintiffs failed to allege a cause of action on any theory, affirmed the trial court’s award of attorney fees to defendants, but ruled that the trial court had erred in disbursing to defendant Wells Fargo rental funds plaintiffs had deposited with the court under Code of Civil Procedure section 1170.5 to delay the trial in an unlawful detainer action. The Court of Appeal reversed the rental disbursement order and ordered that the funds be returned to plaintiffs. (C.A. 3rd, February 1, 2017.) OC Interior Services v. Nationstar Mortgage (2017) _ Cal.App.5th _ , 2017 WL 410208: The Court of Appeal reversed the trial court’s order granting summary judgment for plaintiff on the basis that it was a bona fide purchaser of real property that had relied on a recorded default judgment showing that a first trust of deed interest in the property had been vacated. The default judgment was later found to be void, and the Court of Appeal ruled that the void default judgment was a nullity for all purposes so plaintiff took title to the property subject to the first deed of trust. (C.A. 4th, January 31, 2017.)
Rincon EV Realty v. CP III Rincon Towers (2017) _ Cal.App.5th _ , 2017 WL 429267: In an action arising from a nonjudicial foreclosure sale of an apartment complex in San Francisco, the Court of Appeal affirmed the trial court’s judgment on all equitable causes of action but ruled that the trial court erred in striking plaintiff’s jury demand on the legal causes of action, and reversed and remanded as to those causes of action. (C.A. 1st, January 31, 2017.)
Stella v. Asset Management Consultants, Inc. (2017) _ Cal.App.5th _ , 2017 WL 167529: See summary above under Civil Procedure.
Torts
Hensley v. San Diego Gas & Electric Co. (2017) _ Cal.App.5th _ , 2017 WL 411050: The Court of Appeal reversed the trial court’s in limine order excluding evidence of emotional distress damages on trespass and nuisance causes of action arising from a wild fire that damaged plaintiffs’ house and property. The Court of Appeal ruled that plaintiffs were legally entitled to present evidence of plaintiff husband’s emotional distress on claims for trespass and nuisance as annoyance and discomfort damages recoverable for such torts. (C.A. 4th, January 31, 2017.) Medina v. GEICO Indemnity (2017) _ Cal.App.5th _ , 2017 WL 510878: See summary above under Insurance.
Sanchez v. Kern Emergency Medical Transportation Corporation (2017) _ Cal.App.5th _ , 2017 WL 128168: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant in an action alleging gross negligence for not properly assessing plaintiff’s condition after he was injured at a football game and not immediately transporting him to the hospital in the standby ambulance. The trial court properly found there was no evidence the brief delay caused by transferring plaintiff from one ambulance to another caused any increase in the severity of his injuries so there was no triable issue of material fact regarding causation. (C.A. 5th, filed January 13, 2017, published February 2, 2017.)
Trusts and Estates
Williamson v. Brooks (2017) _ Cal.App.5th _ , 2017 WL 407922: The Court of Appeal affirmed the trial court’s judgment for defendants and its award to defendants of over $500,000 in attorney fees and costs. Plaintiff alleged that defendants breached their fiduciary duties to a subtrust beneficiary by failing to inform her of the subtrust and other alleged misconduct. The trial court properly found the defendants did not breach their fiduciary duties. Neither the subtrust nor the beneficiary suffered any harm as a result of defendants’ actions. (C.A. 2nd, January 31, 2017.)
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