California Case Summaries Civil™
Every New Published California Civil Case
From November 5 to November 16, 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
Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) _ Cal.App.5th _ , 2018 WL 5921229: The Court of Appeal reversed the trial court’s judgment, following a bench trial, ruling that defendant had breached a settlement agreement and awarding plaintiff (as Trustee of the Hazel I. Maag Trust (the Maag Trust)) attorney fees of $118,000. The Court of Appeal ruled that the detriment caused by defendant’s breach of the settlement agreement would include the attorney fees incurred by the Maag Trust in defending the unlawful detainer action when defendant did not promptly dismiss that action. However, the Maag Trust failed to prove any damages. At trial, the Maag Trust did not attempt to authenticate as business records its attorney invoices and admit them into evidence. Nor did it present testimony from its attorneys, or anyone else, of billing rates and the work performed in the unlawful detainer action. The Maag Trust offered only the testimony of Lloyd Copenbarger, whose testimony about the invoices was hearsay and violated the secondary evidence rule, and who testified he did not know what the Maag Trust’s attorneys did in the unlawful detainer action. This evidence was insufficient to support the judgment and the case was reversed with directions to enter judgment in favor of defendant plaintiff’s complaint. (C.A. 4th, filed October 19, 2018, published November 13, 2018.)
Civil Code
SI 59 LLC v. Variel Warner Ventures, LLC (2018) _ Cal.App.5th _ , 2018 WL 5993816: The Court of Appeal affirmed the trial court’s order sustaining defendants’ demurrer, without leave to amend, to plaintiff’s second amended complaint, and the trial court’s postjudgment order awarding defendants $81,420.25 in attorney fees. The Court of Appeal ruled that Civil Code section 1668 negates a contractual clause exempting a party from responsibility for fraud or a statutory violation only when all or some of the elements of the tort are concurrent or future events at the time the contract is signed, but it does not negate such a clause when all the elements are past events. Because the trial court’s judgment was affirmed, the attorney fee issue was moot. (C.A. 2nd, November 15, 2018.)
Kohler Co. v. Superior Court of Los Angeles County (2018) _ Cal.App.5th _ , 2018 WL 5961741: The Court of Appeal granted a petition for writ of mandate directing the trial court to vacate its order denying plaintiff’s anti-class certification motion and to issue a new and different order granting the motion. The Court of Appeal ruled that class actions are not allowed under the Right to Repair Act (the Act; Civil Code, sections 895 et seq.) except in one limited context: to assert claims that address solely the incorporation into a residence of a defective component, unless that component is a product that is completely manufactured offsite. Because the claim in this case involved allegedly defective products that were completely manufactured offsite, the claim alleged under the Act could not be litigated as a class action. (C.A. 2nd, November 14, 2018.)
Schmidt v. Citibank, N.A. (2018) _ Cal.App.5th _ , 2018 WL 5816826: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendants in an action alleging violations of the Homeowners’ Bill of Rights (HBOR; Civ. Code, sections 2923.55, 2923.6) and Business and Professions Code section 17200, and seeking to prevent the completion of a trustee’s sale of plaintiffs’ residence. The Court of Appeal agreed with the trial court that plaintiffs did not demonstrate the existence of any material questions of fact regarding either the HBOR or section 17200 causes of action. (C.A. 4th, November 7, 2018.)
Civil Procedure
1550 Laurel Owner’s Assn., Inc. v. App. Div. of Superior Court (2018) _ Cal.App.5th _ , 2018 WL 5817173: The Court of Appeal granted a writ of mandate directing the appellate division of the Los Angeles Superior Court to vacate its order granting a writ of mandate that had directed the trial court to vacate its order denying an anti-SLAPP motion to strike and rule on the merits of the motion to strike. The Court of Appeal ruled that the restrictive language of Code of Civil Procedure section 92(d), which limits the type of motions to strike that may be brought in a limited civil case, precludes the filing of an anti-SLAPP motion to strike under Code of Civil Procedure section 425.16 in a limited civil case. (C.A. 2nd, November 7, 2018.)
Genisman v. Hopkins Carley (2018) _ Cal.App.5th _ , 2018 WL 5977915: See summary below under Legal Malpractice.
Guerrero v. Cal. Dept. of Corrections and Rehabilitation (2018) _ Cal.App.5th _ , 2018 WL 5816727: The Court of Appeal reversed the trial court’s order dismissing the case because of the preclusive effect of the a judgment entered in a federal case. Plaintiff filed the federal action first, alleging federal and state law claims for employment discrimination, but only his state claims allowed him to seek general damages. The federal court dismissed plaintiff’s state claims on Eleventh Amendment grounds, effectively limiting his potential money recovery to the equitable remedy of backpay. The order provided that the state claims could be re-filed in state court. Plaintiff later filed the state court action to recoup damages. The Court of Appeal ruled that where a federal court, in a case brought under federal and state laws, does not resolve any issue of the state laws, the federal courts will dismiss the state claims without prejudice to their being filed in state court, even where the state statutes incorporate the federal law. The state law claims for damages remained available in the state action despite the federal court order to dismiss. (C.A. 1st, November 6, 2018.) Huerta v. Kava Holdings, Inc. (2018) _ Cal.App.5th _ , 2018 WL 5961895: The Court of Appeal affirmed the judgment for defendant in an action alleging several violations of Fair Employment and Housing Act (FEHA; Government Code, section 12900 et seq.), but it reversed the trial court’s post judgment order awarding defendant $50,000 in costs and expert witness fees under Code of Civil Procedure section 998. The trial court properly granted defendant’s motion for nonsuit as to plaintiff’s claim for retaliation under FEHA, and properly allowed the jury to decide plaintiff’s FEHA causes of action for harassment based on a hostile work environment, discrimination, and failure to prevent harassment and/or discrimination. The jury returned a verdict in defendant’s favor. Postjudgment, the trial court properly found that plaintiff’s action was not frivolous and denied defendant’s request for attorney fees, expert fees and costs under Government Code section 12965(b). For litigation that predates the application of the amended version of section 12965(b) (effective on January 1, 2019), the Court of Appeal ruled that section 998 does not apply to nonfrivolous FEHA actions and therefore reversed the order awarding defendant costs and expert witness fees under section 998. (C.A.2nd, November 14, 2018.)
Employment
Guerrero v. Cal. Dept. of Corrections and Rehabilitation (2018) _ Cal.App.5th _ , 2018 WL 5816727: See summary above under Civil Procedure. Hernandez v. Pacific Bell Telephone Co. (2018) _ Cal.App.5th _ , 2018 WL 5993860: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant in a class action where plaintiffs sought compensation for the time they spent traveling in an employer-provided vehicle-loaded with equipment and tools-between their homes and a customer’s residence (the worksite) under an optional and voluntary Home Dispatch Program. The trial court, like federal courts that have considered the question under California law, properly concluded the travel time was not compensable. The Home Dispatch Program was not compulsory. Because plaintiffs were not required to use the company vehicle to commute to work, they were not under the control of the employer. Moreover, simply transporting tools and equipment during commute time is not compensable work where no effort or extra time is required to effectuate the transport. (C.A. 2nd, November 15, 2018.)
Huerta v. Kava Holdings, Inc. (2018) _ Cal.App.5th _ , 2018 WL 5961895: See summary above under Civil Procedure.
Manavian v. Dept. of Justice (2018) _ Cal.App.5th _ , 2018 WL 5816615: The Court of Appeal affirmed the trial court’s order granting summary adjudication of most of plaintiff’s causes of action in an action alleging wrongful termination in violation of public policy and several additional causes of action. Plaintiff held a career executive assignment as chief of the Criminal Intelligence Bureau that is part of the Department of Justice. The Court of Appeal ruled that Public Safety Officers Procedural Bill of Rights Act (Government Code section 3300 et seq.) protections were not triggered by plaintiff’s termination, nor was he protected from termination as a whistleblower under either Labor Code section 1102.5 or the California Whistleblower Protection Act (Government Code, section 8547 et seq.). (C.A. 3rd, November 7, 2018.)
Family Law
C.A. v. C.P. (2018) _ Cal.App.5th _ , 2018 WL 5919106: The Court of Appeal affirmed the family court’s order recognizing three parents of a minor child. The wife in a married couple (defendants C.P. and J.P., wife and husband) conceived the child with a coworker (plaintiff C.A.), but hid that fact from wife’s employer and initially from her husband. The marriage remains intact and wife and husband parent the child. For the first three years of the child’s life, the couple allowed plaintiff to act in an alternate parenting role, and the child bonded with him and his close relatives. Defendants excluded plaintiff from the child’s life when he filed the instant petition seeking legal confirmation of his paternal rights. The trial court found that wife misled the court at an interim custody hearing, prolonging what the court later viewed as an unwarranted separation. The trial court properly found the child was still bonded to all three parents and properly found this to be a “rare” case where, pursuant to statutory authority, each of three parents should be legally recognized as parents, to prevent detriment to their child. (C.A. 3rd, November 13, 2018.)
Government
Citizens for Amending Proposition L v. City of Pomona (2018) _ Cal.App.5th _ , 2018 WL 5817274: The Court of Appeal affirmed the trial court’s orders granting petitioner’s writ petition, and awarding them attorney fees of $75,200.40 (not the requested fees of $569,700). Petitioner’s writ sought to overturn respondent’s ordinance purporting to amend, and extend for a 12-year term, a June 1993 agreement between respondent and Regency Outdoor Advertising, Inc. (Regency) allowing Regency to erect advertising billboards alongside several Pomona freeways. The trial court properly ruled that the “amendment” was in fact a new agreement allowing new billboards that violated Proposition L, a ballot initiative passed in November 1993 which prohibited the construction of additional billboards within city limits. (C.A. 2nd, November 7, 2018.)
High Sierra Rural Alliance v. County of Plumas (2018) _ Cal.App.5th _ , 2018 WL 5994604: The Court of Appeal affirmed the trial court’s judgment denying petitioner’s petition for writ of mandate challenging respondent’s adoption of a general plan update and a final environmental impact report (EIR). The Court of Appeal ruled that the general plan update did not violate the Timberland Act by failing to recite statutory language in Government Code section 51104. The EIR adequately analyzed reasonably foreseeable development within the County, including impacts that can be expected outside the planning areas. Steady to declining population combined with policies designed to limit growth outside the planning areas supported the EIR’s determination that little development would occur in the manner feared by petitioner. Respondent reasonably crafted the EIR as “a first-tier environmental document that assesses and documents the broad environmental impacts of a program with the understanding that a more detailed site-specific review may be required to asses future projects implemented under the program.” (C.A. 3rd, filed October 19, 2018, published November 15, 2018.)
Manavian v. Dept. of Justice (2018) _ Cal.App.5th _ , 2018 WL 5816615: See summary above under Employment.
Wilde v. City of Dunsmuir (2018) _ Cal.App.5th _ , 2018 WL 5994224: The Court of Appeal reversed the trial court’s order denying a writ petition to place a referendum on the ballot to repeal a resolution by respondent that established a new water rate master plan. The Court of Appeal ruled that the voters’ adoption of Proposition 218 did not abridge voters’ right to challenge local resolutions and ordinances by referendum. It also ruled that the trial court erred in finding the City’s water rate plan was an administrative decision not subject to voter referendum. The resolution adopting an extensive water upgrade project funded by a new water rate plan was legislative in nature and therefore subject to voter referendum. (C.A. 3rd, November 15, 2018.)
Legal Malpractice
Genisman v. Hopkins Carley (2018) _ Cal.App.5th _ , 2018 WL 5977915: The Court of Appeal affirmed the summary judgment for defendants in a legal malpractice case. Summary judgment under Code of Civil Procedure section 340.6(a) was proper because plaintiff was on inquiry notice when he became aware that Stanley Blumenfeld was alleging he had not properly disclosed the nature the sale of his interest in two companies, and this occurred more than one year before he filed his action for legal malpractice. Moreover, plaintiff sustained actual injury more than a year before suing when he incurred attorney fees to defend a lawsuit filed against him by Stanley Blumenfeld. (C.A. 6th, filed October 16, 2018, published November 14, 2018.)
Real Property
High Sierra Rural Alliance v. County of Plumas (2018) _ Cal.App.5th _ , 2018 WL 5994604: See summary above under Government.
Schmidt v. Citibank, N.A. (2018) _ Cal.App.5th _ , 2018 WL 5816826: See summary above under Civil Code.
Settlement
Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) _ Cal.App.5th _ , 2018 WL 5921229: See summary above under Attorney Fees.
Trial
Alcazar v. L.A. Unified School District (2018) _ Cal.App.5th _ , 2018 WL 5994027: The Court of Appeal affirmed the judgment for defendant, following a jury trial, in an action for personal injuries suffered when plaintiff (a minor) fell from the branch of a tree located on the campus of his middle school. The Court of Appeal rejected plaintiff’s arguments: (1) that the trial court erred when, following the first venire, it refused to allow counsel to make mini-opening statements to the second and third venires and prohibited counsel from referring to the specific facts of the case during the balance of voir dire, and (2) that the trial court erred by refusing to remove two jurors for cause. (C.A. 2nd, filed October 16, 2018, published November 15, 2018.)
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