California Case Summaries Civil™
Every New Published California Civil and Family Law Case
From December 17 to December 28, 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
Monty’s Web: http://montymcintyre.com/mcintyre Monty’s cell: (619) 990-4312. Monty’s email: monty@montymcintyre.com
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CALIFORNIA SUPREME COURT
Environment
Sierra Club v. County of Fresno (2018) _ Cal.5th _ , 2018 WL 6729853: The California Supreme Court affirmed in part and reversed in part the decision of the Court of Appeal in an action regarding whether an Environmental Impact Report (EIR), issued as part of a master plan to develop a retirement community in Fresno, California, violated the California Environmental Quality Act (CEQA; Public Resources Code, section 21000 et seq.) for failing to include sufficient information on topics required by CEQA. The Supreme Court ruled that, when reviewing whether a discussion is sufficient to satisfy CEQA, a court must be satisfied that the EIR (1) includes sufficient detail to enable those who did not participate in its preparation to understand and to consider meaningfully the issues the proposed project raises, and (2) makes a reasonable effort to substantively connect a project’s air quality impacts to likely health consequences. It also ruled that a lead agency may leave open the possibility of employing better mitigation efforts consistent with improvements in technology without being deemed to have impermissibly deferred mitigation measures. The Supreme Court affirmed the Court of Appeal’s judgment finding the EIR’s analyses of the project’s air quality impacts was inadequate, but it reversed the Court of Appeal’s judgment that the EIR improperly deferred mitigation measures. (December 24, 2018.)
Landlord-Tenant
Dr. Leevil, LLC v. Westlake Health Care Center (2018) _ Cal.5th _ , 2018 WL 6597341: The California Supreme Court reversed the judgment of the Court of Appeal. The Supreme Court ruled that an owner of real property that acquires title to property under a power of sale contained in a deed of trust must perfect title by recording the trustee deed before serving a three-day written notice to quit required by Code of Civil Procedure section 1161a(b). (December 17, 2018.)
CALIFORNIA COURTS OF APPEAL
Arbitration
Cox v. Bonni (2018) _ Cal.App.5th _ , 2018 WL 6598930: The Court of Appeal affirmed the trial court’s ruling granting a motion for reconsideration and confirming a judgment for defendant following an arbitration of a claim for medical malpractice where plaintiff alleged that defendant negligently performed a hysterectomy. Although the neutral arbitrator did not provide his disclosures regarding new defense counsel within the time required by statute, plaintiff forfeited her challenge by not objecting to the disclosures until ten months later when the arbitration award was issued. The trial court erred when it initially vacated the judgment based upon the arbitration award due to the neutral arbitrator’s untimely disclosures. It correctly granted reconsideration and affirmed the judgment because plaintiff’s objection to the late disclosure was untimely. (C.A. 2nd, December 17, 2018.)
Howard v. Goldbloom (2018) _ Cal.App.5th _ , 2018 WL 6715755: The Court of Appeal affirmed the trial court’s order denying a petition to compel arbitration. The Court of Appeal ruled that the lawsuit dispute did not fall within any of the four arbitration agreements, all of which related to plaintiff’s employment with Kaggle, Inc. Instead, plaintiff’s claim was rooted in, and any harm he suffered was measured by, his rights as a company stockholder. The dispute was whether defendants wrongfully diluted the value of his shares, breached their fiduciary duties to plaintiff as a minority stockholder, and unjustly enriched themselves at his expense. Defendants’ fiduciary duties to minority shareholders and alleged wrongs existed independently of any employment relationship between plaintiff and Kaggle. (C.A. 1st, December 21, 2018.)
Attorney Fees
Eith v. Ketelhut (2018) _ Cal.App.5th _ , 2018 WL 6599175: See summary below under Real Property. Etcheson v. FCA US LLC (2018) _ Cal.App.5th _ , 2018 WL 6804470: The Court of Appeal reversed the trial court’s order awarding plaintiff attorney fees and costs of $2,636.90 in response to plaintiff’s motion requesting $89,445 in lodestar attorney fees with a 1.5 enhancement of $44,722.50 plus $5,059.05 in costs in an action brought under the Song-Beverly Consumer Warranty Act (Civil Code, section 1790 et seq.) After admitting the vehicle qualified for repurchase, defendant made two offers to compromise under Code of Civil Procedure section 998 (section 998): one in March 2015, to which plaintiffs objected and the trial court found was impermissibly vague, and a second in June 2016, offering to pay plaintiffs $65,000 in exchange for the vehicle’s return. Following the second offer, the parties negotiated a settlement in which defendant agreed to pay plaintiffs $76,000 and deem them the prevailing parties for purposes of seeking an award of attorney fees. The Court of Appeal, agreeing with plaintiffs that the ultimate recovery was double the estimated value of defendant’s invalid March 2015 section 998 offer, ruled that the trial court abused its discretion and erred by cutting off all attorney fees and costs incurred after that offer. (C.A. 4th, filed December 6, 2018, published December 27, 2018.)
Hoffman v. Superior Ready Mix Concrete, L.P. (2018) _ Cal.App.5th _ , 2018 WL 6629519: The Court of Appeal affirmed the trial court’s award of attorney fees of $289,153.75 to plaintiff under Code of Civil Procedure section 1021.9 after she prevailed in a trespass action against defendant. The trial court decided quiet title and declaratory issues and instructed the jury on its findings. The jury found for plaintiff on her trespass action, against her on the nuisance and negligence causes of action, and awarded plaintiff $17,000 in compensatory damages, $0 in discomfort and annoyance damages, and $0 in punitive damages. The trial court properly awarded attorney fees under section 1021.9 based upon a correct finding that the trespass occurred on “lands . . . under cultivation.” The term “lands . . . under cultivation” refers to the character of the land, not the specific area of the land that was trespassed upon. The trial court did not err in declining to apportion the fees. Apportionment is not required when the issues in the fee and nonfee claims are so inextricably intertwined that it would be impractical or impossible to separate the attorney’s time into compensable and noncompensable units. (C.A. 4th, December 19, 2018.)
Attorneys
Antelope Valley Groundwater Cases (2018) _ Cal.App.5th _ , 2018 WL 6696022: The Court of Appeal affirmed the trial court’s order denying the motion of Antelope Valley—East Kern Water Agency (AVEK) seeking an order disqualifying Best, Best & Krieger, LLP (BB&K) from further representing either Los Angeles County Water District No. 40 (District No. 40) or any other party to the Antelope Valley Groundwater Adjudication (AVGA) cases. AVEK retained BB&K in 1987 to act as AVEK’s general counsel, and it continued to do so until January 2016. In 2004 BB&K began representing District No. 40 in the AVGA cases. AVEK was not a named party in any of the AVGA lawsuits at that time. Approximately two years later, AVEK became enmeshed in the AVGA cases. AVEK retained separate attorneys to protect its interests in that litigation. Ten years later, after the bulk of the AVGA litigation was completed, AVEK terminated BB&K as its general counsel and demanded that BB&K voluntarily recuse itself from further representing District No. 40 in the AVGA cases. BB&K declined to do so, and AVEK filed a motion seeking an order disqualifying BB&K from further representing either District No. 40 or any other party to the AVGA cases. The Court of Appeal found there was substantial evidence to support the trial court’s conclusion that AVEK impliedly consented to BB&K’s representation of District No. 40 throughout the 10-plus years of litigation, and its inordinate delay in seeking disqualification estopped AVEK from seeking to disqualify District No. 40’s chosen counsel. (C.A. 5th, December 20, 2018.)
City of San Diego v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 6629322: The Court of Appeal granted a petition for writ of mandate directing the trial court to vacate its order granting a motion to disqualify the San Diego City Attorney in an underlying employment lawsuit and to enter a new order denying the motion. The trial court properly found that petitioner violated the attorney-client privilege when San Diego Police Department investigators in an internal affairs investigation insisted that detective Dana Hoover (a plaintiff in an employment action against petitioner) answer questions about attorney-client communications between Hoover and her attorney despite Hoover’s invocation of the attorney-client privilege. Disqualification of counsel, particularly the elected City Attorney, was a drastic remedy that should be ordered only where the violation of the privilege or other misconduct has a “substantial continuing effect on future judicial proceedings.” (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 309.) Because the internal affairs transcript demonstrated that no relevant confidential information about the employment lawsuit was disclosed, the drastic remedy of depriving petitioner of its counsel of choice was unwarranted. (C.A. 4th, December 19, 2018.)
Civil Code
Gassner v. Stasa (2018) _ Cal.App.5th _ , 2018 WL 6599593: The Court of Appeal reversed the trial court’s order awarding defendant costs of $2,698.91 against the law firm for plaintiff after plaintiff voluntarily dismissed plaintiff’s action for unpaid fees. The order awarding costs against the law firm was void because the firm was not a party to the action. (C.A. 4th, December 17, 2018.)
Olive v. General Nutrition Centers, Inc. (2018) _ Cal.App.5th _ , 2018 WL 6804361: The Court of Appeal affirmed a judgment for plaintiff, following a jury trial, awarding plaintiff $213,000 in actual damages and $910,000 in emotional distress damages on his claim for the unauthorized use of plaintiff’s likeness in violation of Civil Code section 33441. After a rehearing, it also affirmed the trial court’s order denying the request by both parties for prevailing party attorney fees and costs. The trial court properly excluded testimony from two expert witnesses offered by plaintiff. Regarding the attorney fees, it was undisputed that neither party obtained an unqualified win. Plaintiff initially sought $1.5 million in actual damages, $2 million for his emotional distress, restitution of defendant’s profits in a range that exceeded $100 million, and five times the total of those sums as punitive damages. Instead, he obtained $213,000 in actual damages, $910,000 for his emotional distress, and nothing in terms of restitution or punitive damages. Defendant contended that Plaintiff was entitled to nothing more than $4,800 in actual damages, but ended up with an adverse verdict of more than $1.1 million. The Court of Appeal ruled that the mixed results in this case did not amount to a lopsided verdict in plaintiff’s favor, and the trial court did not abuse its discretion in determining that neither party prevailed for purposes of awarding attorney fees under section 3344. (C.A. 2nd, December 27, 2018.)
Civil Procedure
Modacure v. B&B Vehicle Processing, Inc. (2018) _ Cal.App.5th _ , 2018 WL 6715870: The Court of Appeal reversed, in part, the trial court’s order sustaining demurrers without leave to amend to the second amended complaint. The Court of Appeal affirmed the trial court’s order sustaining the demurrer to a conspiracy cause of action. However, it reversed the order sustaining the demurrer to the denial of due process and equal protection cause of action. Plaintiff properly alleged a violation of Vehicle Code section 22851.1 which requires that proceeds from a sale of an impounded vehicle be used to pay unpaid parking tickets if funds remain after paying for towing and storage. Plaintiff properly alleged that the failure to enforce section 22851.1, which allegedly resulted in misallocation of the car sale proceeds, was a violation of her federal constitutional right to due process. (C.A. 1st, December 21, 2018.)
Consumer Protection
Etcheson v. FCA US LLC (2018) _ Cal.App.5th _ , 2018 WL 6804470: See summary above under Attorney Fees.
Corporations
Drulias v. 1st Century Bancshares, Inc. (2018) _ Cal.App.5th _ , 2018 WL 6735137: The Court of Appeal affirmed the trial court’s order staying a putative shareholder class action under Code of Civil Procedure section 410.30. The Court of Appeal ruled that the adoption of a forum selection bylaw designating Delaware as the exclusive litigation forum for intracorporate disputes did not conflict with California Corporations code section 2116 because section 2116 does not create substantive rights. The Court of Appeal also ruled that the trial court did not err in concluding that enforcement of the forum selection bylaw was reasonable in this case. (C.A. 6th, December 21, 2018.)
Education
SummerHill Winchester LLC v. Campbell Union School Dist. (2018) _ Cal.App.5th _ , 2018 WL 6324682: The Court of Appeal affirmed the trial court’s order granting a petition for writ of mandate that invalidated the Campbell Union School District Governing Board’s (Board) 2012 resolution enacting a fee on new residential development under Education Code section 17620. The Court of Appeal ruled that the fee study relied upon by the Board did not contain the data required to properly calculate a development fee. (C.A. 6th, filed December 4, 2018, published December 20, 2018.)
Employment
Carrington v. Starbucks Corp. (2018) _ Cal.App.5th _ , 2018 WL 6175821: The Court of Appeal affirmed the trial court’s judgment, following a bench trial, in an action under the Private Attorney General Act (PAGA; Labor Code section 2698 et seq.) holding defendant liable for failing to properly provide meal breaks or pay meal period premiums for employees in violation of Labor Code sections 226.7 and 512 and imposing penalties of $150,000, with 75 percent payable to the Labor and Workforce Development Agency and 25 percent payable to plaintiff and the employees she represented in the action. Plaintiff proved she was an aggrieved employee by establishing she individually suffered at least two meal period violations. The trial court properly found that defendant’s violations were minimal and it attempted full compliance with California’s meal period requirements. The Court of Appeal found that substantial evidence supported the $150,000 judgment which was determined by imposition of a penalty of $5 per violation on 30,000 violations. (C.A. 4th, filed November 27, 2018, published December 19, 2018.)
Environment
Georgetown Preservation Society v. County of El Dorado (2018) _ Cal.App.5th _ , 2018 WL 6600087: The Court of Appeal affirmed the trial court’s order granting a writ of mandate requiring respondent to require an environmental impact report (EIR) for a proposed project. Lay opinions can provide substantial evidence to support a fair argument that a project may have a significant aesthetic impact on the environment, triggering the need to prepare an EIR pursuant to the California Environmental Quality Act (CEQA; Public Resources Code section 21000, et seq.). (C.A. 3rd, December 17, 2018.)
Family Law
In re Marriage of T.C. (2018) _ Cal.App.5th _ , 2018 WL 6617302: The Court of Appeal reversed the trial court’s order granting the former wife’s petition for modification of spousal support. The Court of Appeal found that substantial evidence supported the trial court’s finding of changed circumstances sufficient to justify reduction of the additional spousal support paid by former wife. However, when it fashioned the modification of the additional spousal support capping it at $990 per year irrespective of the former wife’s actual earnings, the court erred by failing to consider the parties’ reasonable expectations that former wife’s earnings would go up as expressed in their dissolution agreement. (C.A. 4th, December 18, 2018.)
Government
Associated Chino Teachers v. Chino Valley Unified School Dist. (2018) _ Cal.App.5th _ , 2018 WL 6710636: The Court of Appeal reversed the trial court’s order denying a writ petition seeking to prevent respondent from releasing two documents relating to the results of an investigation into a public high school teacher’s (Doe) actions as a girls’ volleyball coach. The Court of Appeal ruled that the California Public Records Act (CPRA; Government Code, section 6250, et seq.) did not require the production of the documents because Doe’s privacy interests outweighed the public interest in their disclosure. The judgment was reversed, and the trial court was ordered to enter a new order granting the writ petition. (C.A. 4th, filed November 29, 2018, published December 20, 2018.)
San Diego Unified School Dist. v. Yee (2018) _ Cal.App.5th _ , 2018 WL 6259468: The Court of Appeal affirmed the trial court’s order sustaining a demurer, without leave to amend, to a first amended writ petition challenging the decision by State Controller Betty Yee to reduce subvention—reimbursement of monies from state funds to the school district petitioners. The Court of Appeal approved the trial court finding that the action was barred by the 90-day statute of limitations in Code of Civil Procedure section 341.5. Section 341.5 applied to the action, the gravamen of which was a challenge to the constitutional validity of Government Code sections 17581.8, 17581.9 and 17581.95—providing one time general state funding for school districts. (C.A. 4th, filed November 30, 2018, published December 27, 2018.)
Insurance
Case v. State Farm Mutual Automobile Ins. Co., Inc. (2018) _ Cal.App.5th _ , 2018 WL 6617391: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant in a bad faith action. The Court of Appeal ruled that the loss-payable-reduction provision in plaintiff’s policy authorized defendant to reduce uninsured-underinsured motorist (UM) benefits to reflect past and future expenses for injury-related treatments payable through, but not submitted to, the workers’ compensation system. The Court of Appeal found no triable issues existed regarding bad faith because defendant settled the UM claim shortly after a determination was made as to the extent of plaintiff’s eligibility for workers compensation benefits related to the auto accident. (C.A. 2nd, filed November 21, 2018, published December 18, 2018.)
Privacy
Associated Chino Teachers v. Chino Valley Unified School Dist. (2018) _ Cal.App.5th _ , 2018 WL 6710636: See summary above under Government.
Probate
Estate of Stockird (2018) _ Cal.App.5th _ , 2018 WL 6696074: The Court of Appeal reversed the trial court’s order finding that decedent’s lapsed gift to Patricia Ambrose should pass to her half brother, Bruce Ramsden, under Probate Code section 21111(a)(3). The Court of Appeal ruled instead that decedent’s life partner, John L. Aguirre, was entitled to the entire estate as the sole surviving residuary beneficiary under section 21111(b). The Court of Appeal ruled that decedent’s gifts to Aguirre and Ambrose were residuary gifts, and because Ambrose was not kindred to decedent, the issue of Ambrose were not entitled to her share of the estate under the antilapse statue. The Court of Appeal ruled that, under the plain language of the statute as construed in light of the entire statutory framework, the definition of “transferee” as kindred in Probate Code section 21110(c) applies to section 21110, but the more general definition of “transferee” applies in section 21111(b). As a result, Aguirre was entitled to the lapsed gift to Ambrose under section 21111(b). (C.A. 1st, December 19, 2019.)
Real Property
Eith v. Ketelhut (2018) _ Cal.App.5th _ , 2018 WL 6599175: The Court of Appeal affirmed the trial court’s decision invoking the judicial deference rule of Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249 (Lamden) and deferring to the decision of the Board of Directors (Board) of the Los Robles Hills Estates Homeowners Association that a vineyard on property owned by Jeffrey Ketelhut and Marcella Ketelhut was not being used for business or commercial activity. The Court of Appeal ruled that the trial court correctly applied the Lamden judicial deference rule. It also concluded, as a matter of law, that the operation of the vineyard was not a prohibited business or commercial use. The Court of Appeal also affirmed the postjudgment award of costs and $250,506.50 in attorney fees to the Ketelhuts. (C.A. 2nd, December 17, 2018.)
Torts
Guernsey v. City of Salinas (2018) _ Cal.App.5th _ , 2018 WL 6598867: The Court of Appeal reversed the judgment for defendant following a jury trial. The trial court erred in giving a special design of the driveway instruction requested by defendant over the objections of plaintiffs. After plaintiff was hit in a crosswalk and seriously injured, defendant was named in the personal injury lawsuit because it had never repainted the sidewalk that it had originally created in 1997. It costs about $1,000 and takes about an hour to repaint a crosswalk. The Court of Appeal ruled that the third and fourth sentences of defendant’s design of the driveway instruction improperly told the jury that it could not “rely on” elements of the driveway, including “the placement of the stop sign, the left turn pocket, and the presence of the pink cement” in deciding whether “a dangerous condition existed.” This was legally incorrect, and it directly conflicted with another instruction given to the jury, which told it that defendant’s “property may be considered dangerous if a condition on adjacent property, such as the pink stamped concrete or the location of the stop sign, exposes those using the public property to a substantial risk of injury in conjunction with the adjacent property.” (C.A. 6th, December 17, 2018.)
Moreno v. Visser Ranch, Inc. (2018) _ Cal.App.5th _ , 2018 WL 6696021: The Court of Appeal reversed the trial court’s order granting summary judgment in favor of two corporation defendants in a personal injury action. Plaintiff was injured while a passenger in a pickup truck involved in a single vehicle, rollover accident. He sued the driver (his father), the corporation that employed the driver, and an affiliated corporation that owned the vehicle. The evidence showed defendants required the driver to be on call 24 hours a day, seven days a week to respond immediately to cell phone calls for repairs and maintenance needed at the ranches, farms and dairies operated by defendants. There was also conflicting evidence about whether the driver was required to use the company-owned vehicle, which contained tools and spare parts, at all times so he could respond quickly to call for repairs at defendants’ various locations. Based on this evidence and other details about the driver’s job, the Court of Appeal ruled that a reasonable trier of fact could find the driver was acting within the scope of his employment when the accident occurred. (C.A. 5th, December 20, 2018.)
University of Southern Cal. v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 6178726: The Court of Appeal granted a peremptory writ of mandate directing the trial court to vacate its order denying petitioner’s motion for summary judgment and enter a new order granting the motion. Plaintiff Carson Barenborg was dancing on a makeshift raised platform at a fraternity party near petitioner’s campus when another partygoer bumped into her, causing her to fall to the ground and suffer serious injuries. Barenborg, who was not a student at USC, sued petitioner and others for negligence, alleging that the university had a duty to protect her from an unreasonable risk of harm and breached that duty by failing to prevent or shut down the party. The Court of Appeal agreed with petitioner that it had no duty to protect members of the public from the conduct of a third party at an off-campus fraternity party. (C.A. 2nd, filed November 27, 2018, published December 19, 2018.)
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