California Case Summaries Civil™
Every New Published California Civil Case
From December 3 to December 14, 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
To know every new published civil and family law decision per quarter in less than 2 hours for less than $100 subscribe to California Case Summaries: Civil Update Quarterly™ for $99.99 a quarter per attorney/judge to get my short, organized summaries with the official case citations. There is no other product like this. To purchase the single-user issue today for $99.99, click here. We also offer law firm and superior court multi-user options. To buy the right multi-user option for your firm or court click here.
CALIFORNIA SUPREME COURT
Employment
Gerard v. Orange Coast Mem. Medical Center (2018) _ Cal.5th _ , 2018 WL 6442036: The California Supreme Court affirmed the decision of the Court of Appeal that had affirmed the trial court’s order granting summary judgment for defendant in a wage and hour putative class action by hospital employees alleging violations of meal period breaks. The California Supreme Court ruled that a wage order of the Industrial Welfare Commission permitting health care employees to waive a second meal period, even if they had worked more than 12 hours did not violate the Labor Code section 512(a) requirement that employees who work more than 10 hours must be provided with a second 30-minute meal period. (December 10, 2018.)
CALIFORNIA COURTS OF APPEAL
Attorney Fees
Warren v. Kia Motors America, Inc. (2018) _ Cal.App.5th _ , 2018 WL 6520889: The Court of Appeal affirmed the trial court’s order denying plaintiff prejudgment interest, but reversed the trial court’s order denying plaintiff $5,882 for the cost of trial transcripts and reversed the trial court’s application of a negative multiplier of 33 percent (33%) to the lodestar figure of $351,055.26, resulting in a $115,848.24 attorney fee award on a $17,455.57 recovery for plaintiff in a Song-Beverly Consumer Warranty Act (Civil Code, section 1790 et seq.) case. The Court of Appeal ruled that plaintiff did not show she was entitled to prejudgment interest on her jury award as a matter of right. Plaintiff was entitled to recover trial transcript expenses. The Court of Appeal also ruled that the trial court abused its discretion in applying a 33% negative multiplier to plaintiff’s requested lodestar attorney fees of $351,055. Part of the court’s expressed purpose in applying the negative multiplier was to tie the attorney fee award to a proportion of plaintiff’s modest damages award. This was error because it is inappropriate and an abuse of a trial court’s discretion to tie an attorney fee award to the amount of the prevailing buyer/plaintiff’s damages or recovery in a Song-Beverly Act action, or pursuant to another consumer protection statute with a mandatory fee-shifting provision. (C.A. 4th, December 12, 2018.)
Civil Code
Warren v. Kia Motors America, Inc. (2018) _ Cal.App.5th _ , 2018 WL 6520889: See summary above under Attorney Fees.
Civil Procedure
Calvert v. Binali (2018) _ Cal.App.5th _ , 2018 WL 6322494: The Court of Appeal reversed the trial court’s order denying a motion to vacate a $1,940,506 default judgment. The Court of Appeal ruled that the judgment was void on its face because plaintiff did not obtain service by publication in the Orange County Register as required by the court order, but instead published the notice in the Laguna News-Post. (C.A. 2nd, December 4, 2018.)
CPF Vaseo Associates, LLC v. Gray (2018) _ Cal.App.5th _ , 2018 WL 6380742: The Court of Appeal reversed the trial court’s order imposing sanctions of over $30,000 in fees and costs against plaintiff and its attorney under a former version of Code of Civil Procedure section 128.5. The order was reversed because no safe harbor period was afforded to plaintiff and its counsel to correct the challenged conduct: the entry of a sister-state judgment in the San Diego Superior Court under the Sister-State Money Judgment Act (Civil Procedure section 1710.10 et seq.). Based upon the clarified Legislative intent expressed in the amended statute, and finding persuasive a recent decision of the Second Appellate District in Nutrition Distribution, LLC v. Southern SARMS, Inc. (2018) 20 Cal.App.5th 117, the Fourth Appellate District overruled the trial court and declined to follow the earlier Fourth Appellate District decision of San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306 that held the safe harbor provisions did not apply to section 128.5. (C.A. 4th, December 6, 2018.)
Donohue v. AMN Services, LLC (2018) _ Cal.App.5th _ , 2018 WL 6445360: The Court of Appeal affirmed the trial court’s orders granting summary judgment for defendant and denying summary adjudication for plaintiff in a wage and hour class action, and denying plaintiff’s motion for reconsideration. The trial court rulings on summary judgment and summary adjudication were upheld because plaintiff did not meet her burden of establishing reversible error. The Court of Appeal also concluded that it lacked jurisdiction to review the postjudgment order resulting in the court’s decision not to consider the motion for reconsideration. (C.A. 4th, filed November 21, 2018, published December 10, 2018.)
J.W. v. Watchtower Bible & Tract Society of New York, Inc. (2018) _ Cal.App.5th _ , 2018 WL 6444039: The Court of Appeal affirmed the trial court’s order granting terminating sanctions striking defendant’s answer as a result of defendant’s failure to produce documents regarding known molesters in the church. The trial court later entered defendant’s default, and, after considering evidence, it entered a judgment in favor of plaintiff and awarded her $4,016,152.39. The Court of Appeal affirmed all of the trial court’s rulings. (C.A. 4th, December 10, 2018.)
Mechling v. Asbestos Defendants (2018) _ Cal.App.5th _ , 2018 WL 6499694: The Court of Appeal affirmed the trial court’s order granting a motion for relief from defaults and default judgments pursuant to the Court’s power to set aside defaults on the ground of extrinsic mistake. The Court of Appeal concluded that Fireman’s Fund properly demonstrated that, after it discovered it had insured defendant Associated Insulation of California, Fireman’s Fund demonstrated it was a meritorious case, a satisfactory excuse for not presenting a defense to the original action, and diligence in seeking to set aside the default once the extrinsic mistake was discovered. (C.A. 1st, December 11, 2018.)
Class Actions
McCleery v. Allstate Ins. Co. (2018) _ Cal.App.5th _ , 2018 WL 6583916: The Court of Appeal affirmed the trial court’s order denying class certification in a putative class action by property inspectors alleging they were employees of both the service companies who employed them and the insurance companies they did inspections for, and that they were deprived of minimum wages, overtime, meal and rest breaks, reimbursement of expenses, and accurate wage statements. While the trial court found that common issues existed as to the class members’ employment status, and that plaintiffs’ survey method (although flawed in some respects) was carefully crafted for accuracy, it found plaintiffs’ trial plan to be unworkable because it failed to address individualized issues and deprived defendants of the ability to assert defenses. Under the analytic framework promulgated by Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 and Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, the trial court acted within its discretion in denying certification. (C.A. 2nd, December 14, 2018.)
Consumer Protection
Warren v. Kia Motors America, Inc. (2018) _ Cal.App.5th _ , 2018 WL 6520889: See summary above under Attorney Fees.
Contractors
Acco Engineered Systems v. Contractors’ St. License Bd. (2018) _ Cal.App.5th _ , 2018 WL 5993835: The Court of Appeal affirmed the trial court’s order denying a writ petition seeking to set aside an administrative law judge’s decision adopted respondent finding petitioner in violation of Business and Professions Code section 71101 for failing to obtain a building permit before replacing a boiler. The Court of Appeal ruled that the term “willful” in section 7110 only requires a showing of general intent and concluded there was substantial evidence to support the administrative law judge’s determination that petitioner willfully violated the applicable building laws. The fact that an individual employee may not have been aware of a specific local permit requirement did not excuse a corporate licensee from complying with the building laws. (C.A. 2nd, filed November 15, 2018, published December 14, 2018.)
Education
Doe v. University of Southern Calif. (2018) _ Cal.App.5th _ , 2018 WL 6499696: The Court of Appeal reversed the trial court’s order denying petitioner’s petition for a writ of administrative mandamus to set aside his expulsion from the University of Southern California (USC) for unauthorized alcohol use, sexual misconduct, sexual assault, and rape. The Title IX investigator concluded that petitioner knew or should have known the accuser was too drunk to consent to sexual activity, and if she had consented to vaginal sex, she had not consented to anal sex, as evidenced by blood observed in her apartment on the mattress, sheets, and carpeting later that day by the accuser and another student. The Court of Appeal ruled that the Title IX investigator erred by relying on the summary of witness interviews by another Title IX investigator instead of interviewing all of the critical witnesses in person or by videoconference to allow her to observe the students during the interview and assess their credibility due to inconsistencies in the testimony and a dispute over whether the substances observed in the accuser’s apartment after the sexual encounter were blood or paint from a paint party. In addition, USC did not comply with its own procedures to conduct a fair and thorough investigation by failing to request that the accuser provide her clothes from the morning of the incident and her consent to release her medical records from the rape treatment center. (C.A. 2nd, December 11, 2018.)
Love v. State Dept. of Education (2018) _ Cal.App.5th _ , 2018 WL 6382089: See the summary below under Health and Safety Code.
Family Law
Marriage of Martindale & Ochoa (2018) _ Cal.App.5th _ , 2018 WL 6428086: The Court of Appeal affirmed the trial court’s order denying the mother’s request for a permanent renewal of a domestic violence prevention restraining order against the father of her daughter. The trial court did not abuse its discretion in finding that the mother had not shown reasonable apprehension of future abuse. (C.A. 1st, filed December 7, 2018, published December 13, 2018.)
W.M. v. V.A. (2018) _ Cal.App.5th _ , 2018 WL 6566689: The Court of Appeal reversed and remanded the trial court’s order granting defendant mother’s motion to quash a California child custody proceeding filed by the plaintiff father arising under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Family Code, section 3400 et seq.). The UCCJEA mandates that, before a child custody determination is made, notice and an opportunity to be heard must be given to all persons entitled to notice (Section 3425(a)). Because the father received no notice of the Belarus custody action filed by the defendant mother, and because notice was not given in a manner reasonably calculated to give actual notice (section 3408(a) because notice was mailed to a residence in Minsk, Belarus where the mother lived but the father did not, the Belarus court did not have jurisdiction in conformity with UCCJEA standards, and the trial court erred in granting mother’s motion to quash and refusing to exercise its jurisdiction. (C.A. 2nd, December 13, 2018.)
Government
Fresno Superior Court v. PERB (2018) _ Cal.App.5th _ , 2018 WL 6583386: The Court of Appeal granted a writ of extraordinary relief invalidating in part and affirming in part the decision of respondent, holding that certain of petitioner’s personnel rules and regulations (Personnel Rules) violated the Trial Court Employment Protection and Governance Act (Trial Court Act; Government Code, section 71600) and constituted unfair practices. The Personnel Rules in question prohibited petitioner’s employees from (1) wearing clothing or adornments with writings or images, including pins, lanyards and other accessories; (2) soliciting during working hours for any purpose without prior Court approval; (3) distributing literature during nonworking time in working areas; and (4) displaying writings or images not published by Court in work areas visible to the public. The parts of respondent’s decision invalidating the portion of Personnel Rule 1.11 addressing images and writings on clothing or adornments, and the first (solicitation) and fourth (display) paragraphs of Personnel Rule 17.3.1 were set aside by the Court of Appeal. The part of respondent’s decision invalidating the third paragraph (distributions in working areas) of Personnel Rule 17.3.1 was not set aside. (C.A. 5th, December 14, 2018.)
Pub. Employment Relations Bd. v. Bellflower Unified School etc. (2018) _ Cal.App.5th _ , 2018 WL 6322422: The Court of Appeal affirmed the trial court’s order granting a writ petition compelling respondent to comply with two orders of petitioner that required respondent to post notices to its employees after petitioner conducted hearings on two unfair practice charges filed under the Education Employment Relations Act (EERA; Government Code section 3540 et seq.). The Court of Appeal found that substantial evidence supported the trial court’s conclusion that the decisions and orders were issued pursuant to petitioner’s procedures, and there was no abuse of discretion on the part of petitioner’s General Counsel. (C.A. 2nd, December 4, 2018.)
Wilmot v. Contra Costa County Employees’ Retirement Assn. (2018) _ Cal.App.5th _ , 2018 WL 5725439: The Court of Appeal affirmed the trial court’s judgment denying a writ petition seeking to overturn respondent’s decision to reduce petitioner’s retirement benefits due to a felony conviction. Petitioner’s last day of work as a fireman was in December 2012. In February 2013, petitioner was indicted for stealing property since 2000. Petitioner’s retirement was approved in April 2013. On January 1, 2013 the California Public Employees’ Pension Reform Act of 2013 (Pension Reform Act or PEPRA) took effect. Included in that measure is a provision that mandates the complete or partial forfeiture of pension benefits/payments if a public employee is convicted of “any felony under state or federal law for conduct arising out of or in the performance of his or her official duties.” (Government Code section 7522.72(b)(1)). In 2015, petitioner was convicted of a felony. The trial court and Court of Appeal approved respondent’s decision to expunge petitioner’s service for twelve years and reduce his monthly benefit payment from $8,758.61 to $2,858.56. (C.A. 1st, filed November 1, 2018, published December 3, 2018.)
Health and Safety Code
Love v. State Dept. of Education (2018) _ Cal.App.5th _ , 2018 WL 6382089: The Court of Appeal affirmed the trial court’s order sustaining defendants’ demurrer, without leave to amend, to plaintiffs’ complaint alleging that Senate Bill 277, which amended Health and Safety Code provisions and repealed the personal belief exemption to California’s immunization requirements for children attending public and private educational and child care facilities, violated the rights of plaintiffs. Agreeing with the decision in Brown v. Smith (2018) 24 Cal.App.5th 1135, the Court of Appeal ruled that Senate Bill No. 277 does not violate the constitutional right to attend school, does not violate plaintiffs’ rights to substantive due process or privacy, and does not violate the right to free exercise of religion. (C.A. 3rd, filed November 20, 2018, published December 6, 2018.)
Insurance
Mechling v. Asbestos Defendants (2018) _ Cal.App.5th _ , 2018 WL 6499694: See summary above under Civil Procedure.
Nurses
Moustafa v. Bd. of Registered Nursing (2018) _ Cal.App.5th _ , 2018 WL 6444019: The Court of Appeal reversed the trial court’s order granting a writ petition that reversed the decision of the Board of Registered Nursing (Board) granting petitioner a probationary license as a result of three misdemeanor convictions. The Court of Appeal ruled that, until July 1, 2020, when recent legislation amending Business and Professions Code section 480 takes effect, the Board may deny or restrict a license based on the conduct underlying a dismissed conviction when the conduct independently qualifies as a basis for denying a license. Conduct so qualifies only if it substantially relates to the applicant’s fitness to practice nursing, and therefore the Board could restrict petitioner’s license based on the conduct underlying the misdemeanor petty thefts but not on the conduct underlying the misdemeanor vandalism. (C.A. 1st, December 10, 2018.)
Torts
Modisette v. Apple Inc. (2018) _ Cal.App.5th _ , 2018 WL 6584127: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, in an action for wrongful death and serious personal injuries caused by a driver using the FaceTime application on his iPhone who crashed into plaintiff’s car on a Texas highway. The Court of Appeal ruled that defendant did not owe the plaintiffs a duty of care. Considering the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108, the Court of Appeal concluded that there was not a “close” connection between defendant’s conduct and the plaintiffs’ injuries and that the extent of the burden to defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach would be too great if a duty were recognized. The Court of Appeal also concluded that plaintiffs could not establish that defendant’s design of the iPhone constituted a proximate cause of the injuries they suffered. (C.A. 6th, December 14, 2018.)
The Regents of the Univ. of Cal. v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 6314402: The Court of Appeal, after the California Supreme Court decision in Regents of University of California v. Superior Court (2018) 4 Cal.5th 607 remanded the case back to the Court of Appeal, denied petitioners’ writ petition seeking to overturn the trial court’s order denying summary judgment for petitioners. In the underlying case Katherine Rosen, a student at the University of California at Los Angeles, was severely injured after being attacked by another student who had been receiving treatment for mental illness. On remand, the Court of Appeal ruled (1) the standard of care governing a university’s duty to protect its students from foreseeable acts of violence is the ordinary reasonable person standard; (2) triable issues of fact exist whether the defendants breached their duty of care to Rosen; and (3) although Civil Code section 43.92 precluded liability against defendant Nicole Green, the remaining defendants were not statutorily immune from suit. (C.A. 2nd, December 3, 2018.)
Water
Orange Cove Irrigation Dist. v. Los Molinos Mutual Water Co. (2018) _ Cal.App.5th _ , 2018 WL 6521080: The Court of Appeal reversed the trial court’s judgment for defendant, following a bench trial, ruling that a stipulated decree issued in 1920 regarding water rights in Mill Creek (1) authorized the water right owners to use their water only during the irrigation season; (2) did not authorize the owners to use their water at any place; and (3) required any change to the purpose or place for using the water to be approved by defendant or the court. The Court of Appeal ruled that the decree’s plain language, its structure, and the rights owners’ historical conduct established that the decree (1) authorized plaintiff to use its water rights any time of year and not only during the irrigation season; (2) authorized plaintiff to use its water rights outside of the Mill Creek watershed and defendant’s service area; and (3) did not require plaintiff to obtain prior approval from defendant or the superior court to change the purpose or place for using the water. (C.A. 3rd, December 12, 2018.)
Copyright © 2018 Monty A. McIntyre, Esq.
All Rights Reserved