California Case Summaries Civil™
Every New Published California Civil Case
From November 19 to November 30, 2018
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
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CALIFORNIA COURTS OF APPEAL
Attorney Fees
City of Oakland v. Oakland Police and Fire Retirement System (2018) _ Cal.App.5th _ , 2018 WL 6242287: The Court of Appeal reversed the trial court’s order denying a motion for attorney fees by the Retired Oakland Police Officers Association, along with several individual Oakland Police and Fire Retirement System pensioners, who were intervenors in the underlying action regarding retirement benefits. The Court of Appeal ruled that an award of attorney fees under Code of Civil Procedure section 1021.5 was proper. It reversed and remanded the matter for the trial court to determine the appropriate amount of the attorney fee award. (C.A. 1st, November 29, 2018.)
Roe v. Halbig (2018) _ Cal.App.5th _ , 2018 WL 6061791: See summary below under Civil Procedure.
John Russo Industrial Sheetmetal, Inc. v. City of L.A. Dept. of Airports (2018) _ Cal.App.5th _ , 2018 WL 6168139: The Court of Appeal affirmed the jury verdict of $1 for defendant/cross-complainant for breach of contract, the cost award for defendant/cross-complainant, and the attorney fee award for plaintiff/cross-defendant because it prevailed on the California False Claims Act (CFCA; Government Code section 12650 et seq.) claim brought against it. The Court of Appeal ruled that a court may award a defendant fees under section 12652(g)(9)(B) when the defendant prevails on CFCA claims found to be frivolous, even if the plaintiff prevailed in the action as a whole under Code of Civil Procedure section 1032(a)(4). (C.A. 1st, November 26, 2018.)
Civil Procedure
David L. v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 6167405: See summary below under Family Law. Edwards v. Heartland Payment Systems, Inc. (2018) _ Cal.App.5th _ : The Court of Appeal affirmed the trial court’s order denying a motion to intervene. Plaintiff employee filed a putative class action lawsuit against defendant employer for myriad wage and hour violations. Employees Jaime Torres and Jorge Martinez filed a separate, later putative class action lawsuit against Heartland Payment Systems, Inc. for similar wage and hour violations. After plaintiff entered into a proposed class action settlement with defendant and amended her complaint to encompass the claims asserted by Torres and Martinez, Torres and Martinez filed a motion to intervene in plaintiff’s lawsuit. The Torres plaintiffs were not entitled to mandatory intervention, and the trial court did not abuse it discretion in denying permissive intervention. (C.A. 2nd, November 30, 2018.)
Finance Holding Co., LLC v. The American Inst. of Certified etc. (2018) _ Cal.App.5th _ , 2018 WL 6257480: The Court of Appeal reversed the trial court’s order compelling the judgment debtor’s employer to produce all documents requested in a broad document production request under Code of Civil Procedure section 708.120. The Court of Appeal ruled that the trial court’s order was statutorily overbroad, and the trial court did not have the authority to order the expansive document production that went far beyond the statutory guidelines. (C.A. 4th, November 29, 2018.)
Meleski v. Estate of Hotlen (2018) _ Cal.App.5th _ , 2018 WL 6241504: See summary below under Insurance.
Professional Tax Appeal v. Kennedy-Wilson Holdings (2018) _ Cal.App.5th _ , 2018 WL 6062358: The Court of Appeal affirmed in part and reversed in part the trial court’s order sustaining a demurrer, without leave to amend, to a complaint alleging unjust enrichment and conversion against defendants who acquired real property after a trustee sale after plaintiff obtained a real property tax reduction for the prior property owner under a contingent fee agreement. The Court of Appeal affirmed the demurrer as to the conversion cause of action. However, it reversed the demurrer as to the unjust enrichment claim because the complaint stated sufficient facts alleging that defendants knew or had reason to know of plaintiff’s right and interest in a percentage of the tax refund, they benefitted in the form of a reduced tax liability, and their retention of those benefits without payment to plaintiff was unjust. (C.A. 2nd, November 20, 2018.)
Roe v. Halbig (2018) _ Cal.App.5th _ , 2018 WL 6061791: The Court of Appeal affirmed the trial court’s ruling that plaintiff was the prevailing party after defendant withdrew his subpoena, but reversed the post-judgment attorney fee and cost award of the trial court. Defendant served a subpoena in California to discover from Google the identity of a person who maintained a blog. Google notified plaintiff, who retained counsel and filed a motion to quash the subpoena. Before the hearing, defendant dismissed the matter without prejudice. Because plaintiff’s motion to quash met all of the requirements of Code of Civil Procedure section 1987.2(c), and it was not mooted by defendant’s withdrawal of the subpoena, plaintiff was the prevailing party under section 1987.2(c). The attorney fee and cost award was reversed because the Court of Appeal could not determine how the trial court arrived at the attorney fees it awarded and could not assess whether the trial court properly exercised its discretion. (C.A. 6th, November 20, 2018.)
Warner Bros. Entertainment Inc. v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 6064837: The Court of Appeal granted a petition for writ of mandate and ordered the trial court to dismiss the entire putative class action for failure to bring the case to trial within five years as required under Code of Civil Procedure sections 583.310 and 583.360. Because an order staying responsive pleadings and outstanding discovery requests, while also requiring the parties to “negotiate and agree . . . on a case management plan” and to prepare and file a joint statement specifically addressing case-related issues in multiple areas (and also allowing the parties to informally exchange documents), did not “effect a complete stay of the prosecution of the action” within the meaning of Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081 and Bruns v. ECommerce Exchange, Inc. (2011) 51 Cal.4th 717, 730, the trial court erred when it concluded the five-year period was tolled for 43 days because of the stay. The five-year period had expired before the trial court heard defendant’s motion to dismiss, so dismissal of the action was mandatory. Moreover, even if the 43-day tolling period had been permissible, the trial court’s order granting trial preference and setting the trial for April 10, 2018, the same date on which plaintiffs’ motion for class certification was to be heard, was a manifest abuse of discretion. (C.A. 2nd, November 20, 2019.)
Class Actions
Warner Bros. Entertainment Inc. v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 6064837: See summary above under Civil Procedure.
Employment
Edwards v. Heartland Payment Systems, Inc. (2018) _ Cal.App.5th _ : See summary above under Civil Procedure.
Kaanaana v. Barrett Business Services, Inc. (2018) _ Cal.App.5th _ , 2018 WL 6261482: The Court of Appeal reversed the trial court’s orders finding that prevailing wage law did not apply to plaintiffs, and that Labor Code section 226.7 remedy was the exclusive remedy for a shortened meal period provided to employees. The Court of Appeal ruled the prevailing wage law applied because plaintiffs were engaged in “public work” within the meaning of the Labor Code. It ruled that the remedy for defendants’ improper shortening of plaintiffs’ meal periods consisted of (1) one additional hour of pay for every shortened meal period as provided under section 226.7, and also (2) payment of wages for actual time worked during the shortened meal period. Because plaintiffs were entitled to payment of minimum wages for actual time they were required to work during their meal periods, defendants could be subject to waiting time penalties under Labor Code section 203(a). In addition, defendants were subject to civil penalties under Labor Code section 1197.1 for payment of wages less than the legal minimum. (C.A. 2nd, November 30, 2018.)
Environment
Alliance of Concerned Citizens v. City of San Juan Bautista (2018) _ Cal.App.5th _ , 2018 WL 6168176: In an action arising from the opposition of petitioners to the approval of a proposed project that consisted of a fuel station, convenience store, and a quick serve restaurant, the Court of Appeal ruled that a March 2016 decision, which granted a peremptory writ requiring respondents to set aside the resolutions, reconsider the significance of the project’s potential noise impacts, take further action consistent with the California Environmental Quality Act (CEQA; Public Resources Code, section 21000 et seq.) and file a return to the writ, was the final judgment for purposes of appeal. Petitioner did not appeal that judgment, and it was affirmed by the Court of Appeal. The Court of Appeal ruled that a later December 2016 decision, which determined that respondents’ supplemental return complied with the peremptory writ and with CEQA as directed, was an appealable postjudgment order. The Court of Appeal concluded that petitioners contentions on appeal regarding that order lacked merit, and it affirmed the order. (C.A. 6th, November 26, 2018.)
Evidence
Hart v. Keenan Properties (2018) _ Cal.App.5th _ , 2018 WL 6040664: The Court of Appeal reversed a judgment for plaintiffs of $1,626,517.82 against defendant, following a jury trial, in a case alleging personal injury and loss of consortium due to asbestos exposure. The Court of Appeal ruled that the trial court erred in denying defendant’s motion to exclude the testimony of a foreman regarding delivery invoices purporting to show that defendant supplied asbestos cement pipes to a worksite in California where plaintiff was working in the 1970’s. Because no delivery invoices were offered into evidence, the foreman’s testimony was based on inadmissible hearsay. Moreover, the foreman could not authenticate the delivery invoices. There was no other evidence that defendant supplied the pipes. (C.A. 1st, filed October 26, 2018, published November 19, 2018.)
Family Law
David L. v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 6167405: The Court of Appeal granted a writ of mandate directing the trial court to vacate its order denying petitioner’s motion to quash the service of summons in a paternity and child support action and to enter a new order granting the motion and quashing the service of summons. California could not exercise specific personal jurisdiction over nonresident petitioner in a paternity action where the mother and young child live in California and conception occurred in another state. Specific jurisdiction must rest on petitioner’s own suit-related contacts with California, not merely a plaintiff who lives here, and those contacts must create a “substantial connection” with this state. The record did not show the requisite minimum contacts required by Walden v. Fiore (2014) 571 U.S. 277, 289, so California could not exercise personal jurisdiction in this case. (C.A. 4th, November 26, 2018.)
Marriage of Davila and Mejia (2018) _ Cal.App.5th _ , 2018 WL 6040637: The Court of Appeal affirmed the trial court’s order granting a domestic violence restraining order (DVRO) issued in favor of the wife. The Court of Appeal ruled that the trial court did not err in considering the wife’s testimony that the husband held a gun to her head, it did not abuse its discretion in refusing to consider evidence to impeach the wife, and substantial evidence supported the issuance of the DVRO. (C.A. 2nd, filed October 23, 2018, published November 19, 2018.)
Marriage of Vaughn (2018) _ Cal.App.5th _ , 2018 WL 6178164: The Court of Appeal affirmed the trial court’s order holding that the ex-husband’s outstanding debt on a loan from a family partnership in which his ex-wife is a limited partner was nondischargeable in bankruptcy. The Court of Appeal ruled that, when the nature of a debt is such that its discharge will directly and adversely impact the finances of the debtor’s spouse or former spouse, it is nondischargeable in bankruptcy even if it is not directly payable to the spouse or ex-spouse. (C.A. 2nd, November 27, 2018.)
S.Y. v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 6074623: The Court of Appeal denied wife petitioner’s petition for writ of mandate and/or prohibition seeking to vacate the trial court’s interim order granting joint legal and de facto joint physical custody to both parents. The Court of Appeal ruled that the trial court erred in considering the husband’s greater fluency in English as a factor rebutting the presumption of detriment due to his domestic violence. However, it concluded that evidence other than language fluency substantially supported the trial court’s ruling that husband had rebutted the presumption of detriment, and that the trial court did not abuse its discretion in granting joint legal and physical custody to both parents. (C.A. 4th, November 21, 2018.)
Government
Dept. of Alcoholic Beverage Control (ABC) v. ABC Appeals Bd. (2018) _ Cal.App.5th _ , 2018 WL 6167823: As to the violation of license condition two only, the Court of Appeal annulled the petition for writ of review and reinstated the decision of petitioner. The reasonableness of a condition cannot be challenged in a disciplinary hearing. As to the violation of license condition one, the Court of Appeal affirmed the decision of respondent that had reversed petitioner’s decision sustaining accusations against licensee Kajla Petroleum, Inc. (C.A. 3rd, November 26, 2018.)
Rasooly v. City of Oakley (2018) _ Cal.App.5th _ , 2018 WL 5291906: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for judgment on the basis that plaintiff failed to exhaust his administrative remedies. Defendant issued a “Notice and Order to Repair or Demolish Structure” in 2015. Plaintiff appealed that notice. After defendant denied the appeal, plaintiff filed a writ proceeding. In 2017 defendant issued a new “Notice and Order to Repair or Demolish Structure.” The new notice was posted on the property, and was also sent by certified mail to a post office box listed as plaintiff’s address on county tax rolls for the property. Plaintiff did not get actual notice because he did not check his mailbox for an extended time period. After the 20-day time period to appeal the new notice had expired, defendant notified plaintiff’s attorney of the new notice. Plaintiff’s attorney amended the writ petition to challenge the new notice. The trial court properly granted the motion for judgment because defendant fulfilled its statutory obligation by sending plaintiff the new notice by certified mail to the address in its records. Actual notice was not required. (C.A. 1st, filed October 25, 2018, published November 21, 2018.)
John Russo Industrial Sheetmetal, Inc. v. City of L.A. Dept. of Airports (2018) _ Cal.App.5th _ , 2018 WL 6168139: See summary above under attorney fees.
San Francisco Baykeeper v. State Lands Commission (2018) _ Cal.App.5th _ , 2018 WL 6181285: The Court of Appeal affirmed the trial court’s order discharging a peremptory writ. Although the State Lands Commission erred by concluding that private commercial sand mining constituted a public trust use of sovereign lands, there was substantial evidence that a project where Hanson Marine Operations, Inc. was allowed to dredge mine sand from sovereign lands under the San Francisco Bay would not impair the public trust. (C.A. 1st, filed October 31, 2018, published November 27, 2018.)
Insurance
Meleski v. Estate of Hotlen (2018) _ Cal.App.5th _ , 2018 WL 6241504: The Court of Appeal reversed the trial court’s order denying plaintiff’s motion for costs. The lawsuit arose from an auto accident. The defendant driver died before the action was brought. Plaintiff brought the action under Probate Code sections 550 – 555 against the insurance carrier (Allstate) who had issued a $100,000 policy. Plaintiff made a Code of Civil Procedure section 998 offer to settle for $99,999 that was rejected by the carrier. The jury verdict was $180,613.86 for plaintiff. While Probate Code section 554 limited the recoverable damages to the $100,000 policy limits, costs are not damages, and section 554 does not limit the recovery of costs. Because Allstate had rejected the 998 offer, the order denying costs from Allstate was reversed and the judgment was modified to include an award of costs in the amount of $66,017.08 in addition to $100,000 in damages. (C.A. 3rd, November 29, 2018.)
Travelers Property Casualty Co. of Amer. v. Engel Insulation, Inc. (2018) _ Cal.App.5th _ , 2018 WL 6259032: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for judgment on the pleadings on the basis that the carrier could not bring subrogation claims seeking to recover the costs of defending its insureds because the insureds were suspended corporations under Revenue and Taxation Code section 23301 who could not assert such claims on their own behalf. An insurer may not file its own action to assert claims as a subrogee of a suspended corporation. (C.A. 3rd, November 30, 2018.)
Real Property
Rasooly v. City of Oakley (2018) _ Cal.App.5th _ , 2018 WL 5291906: See summary above under Government.
Zissler v. Saville (2018) _ Cal.App.5th _ , 2018 WL 6251405: The Court of Appeal reversed the trial court’s judgment, after a bench trial, finding an easement was ambiguous, deciding the case based upon extrinsic evidence of historic use, and adding language limiting the use allowed under the easement. The Court of Appeal found the easement was not ambiguous, and the trial court should not have considered extrinsic evidence. The trial court was directed to prepare a new judgment with a provision that the easement may be used to the extent that the use is reasonably necessary for the convenient enjoyment of the easement and is consistent with the purpose for which the easement was granted, i.e., access, ingress and egress to vehicles and pedestrians over grantors’ real property from Green Meadows Road to grantees’ real property, provided that the use does not unreasonably interfere with the enjoyment of, unreasonably damage, or materially increase the burden on the servient estate. (C.A. 2nd, November 29, 2018.)
Taxes
Durante v. County of Santa Clara (2018) _ Cal.App.5th _ , 2018 WL 6258871: The Court of Appeal affirmed the trial court’s judgment for defendant following a bench trial. Plaintiff and her sister inherited a house in San Jose when their mother died in 2003. They took title as tenants-in-common. A recorded deed reflected that each owned an undivided 50 percent interest in the property. Only plaintiff lived in the home. In 2009, plaintiff’s sister granted her a life estate in the 50 percent interest that plaintiff did not already own. The deed reflecting that transfer was recorded. The 2009 transfer resulted in plaintiff having sole ownership rights for the rest of her life, with her sister regaining a 50 percent interest in the property on plaintiff’s death. Based on the 2009 transfer, defendant properly reassessed the property’s value under a statute allowing for recalculation of a property’s tax basis upon a change in ownership. (C.A. 6th, November 30, 2018.)
Next Century Associates v. County of LA (2018) _ Cal.App.5th _ : The Court of Appeal reversed the judgment of the trial court affirming the decision of The County of Los Angeles Assessment Appeals Board No. 4 (the Board), leaving in place the enrolled value of $367,612,305, even though neither plaintiff nor the County Assessor thought it correctly reflected the property’s value as of the lien date. The Court of Appeal ruled that the Board’s decision to maintain the existing roll value was arbitrary and unsupported by substantial evidence because no party put forth evidence that the existing roll value remained valid and the parties agreed it was too high. (C.A. 2nd, filed November 1, 2018, published November 30, 2018.)
Torts
Arista v. County of Riverside (2018) _ Cal.App.5th _ , 2018 WL 6065089: The Court of Appeal reversed in part and affirmed in part the trial court’s order sustaining defendant’s demurrer, without leave to amend, to plaintiffs’ complaint alleging wrongful death and other causes of action. On March 1, 2014, at approximately 6:30 a.m., decedent left his residence in Corona to ride his mountain bike up Santiago Peak in the Cleveland National Forest. The bike ride would be approximately 55 miles, and decedent was scheduled to arrive back home at 2:00 p.m. When decedent did not return, his wife (one of the plaintiffs) called decedent and learned he had fallen off his bike and appeared to be disoriented. Plaintiff wife called defendant to request a search for her husband. Defendant declined to search that night. After learning of this, the wife asked friends to search for her husband. Very early the next morning, a friend of plaintiffs found decedent who had died from hypothermia. The Court of Appeal ruled that plaintiff’s complaint alleged sufficient facts to state causes of action for wrongful death, negligence, and negligent infliction of emotional distress. However, it affirmed the demurrer as to the cause of action alleging deprivation of constitutional rights. (C.A. 4th, November 20, 2018.)
Hart v. Keenan Properties (2018) _ Cal.App.5th _ , 2018 WL 6040664: See summary above under Evidence. Morgan v. Davidson (2018) _ Cal.App.5th _ , 2018 WL 6178493: The Court of Appeal affirmed the trial court’s $209,000 judgment for plaintiff (including $9,000 in special damages, $100,000 in general damages and $100,000 in punitive damages), following a bench trial in an action for battery. The Court of Appeal upheld the punitive damage award noting that defendant did not comply with subpoenas requiring production of documents regarding defendant’s net worth. The Court of Appeal also affirmed the trial court’s ruling not allowing defendant to use a deposition transcript to impeach a witness because defendant did not comply with a local rule requiring the lodging with the court of the original deposition transcript or a certified copy of the transcript. (C.A. 4th, November 27, 2018.)
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