By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee
Civil Trial Lawyer & ABOTA Member
California attorney since 1980
Phone: (619) 990-4312 | Email: monty@montymcintyre.com
For ADR Scheduling: contact Kelsey@adrservices.org
CALIFORNIA SUPREME COURT
Civil Code
Flethez v. San Bernardino County Employees Retirement Association (2017) _ Cal.5th _ , 2017 WL 823575: The California Supreme Court affirmed the Court of Appeal’s decision holding that the trial court had erred in awarding plaintiff prejudgment interest after it had determined that defendant had wrongfully denied plaintiff the correct starting date for his disability retirement allowance. The only issue appealed was the prejudgment interest award. The California Supreme Court ruled that it is only when a board wrongfully denies an application for disability benefits and withholds disability retirement payments that prejudgment interest begins to run as damages under section California Civil Code section 3287(a). The decision in Austin v. Board of Retirement (1989) 209 Cal.App.3d 1528 was disapproved to the extent it was inconsistent with this opinion. (March 2, 2017.)
Environment
Central Coast Forest Association v. Fish and Game Commission (2017) _ Cal.5th _ , 2017 WL 747735: The California Supreme Court ruled the Court of Appeal had erred in reversing the trial court’s order overruling a decision of the Fish and Game Commission regarding locations where coho salmon is on the endangered species list. The Court of Appeal erred in finding the writ petition was procedurally improper. The California Supreme Court reversed and remanded to the Court of Appeal for consideration of the petition’s merits. (February 27, 2017.)
Government
City of San Jose v. Superior Court (2017) _ Cal.5th _ , 2017 WL 818506: The California Supreme Court reversed the judgment for defendant entered after the Court of Appeal granted a writ petition directing the trial court to change its order compelling petitioner to produce records under the California Public Records Act (CPRA, Government Code, section 6250). The California Supreme Court ruled that a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account. (March 2, 2017.)
J.M. v. Huntington Beach Union High School District (2017) _ Cal.5th _ , 2017 WL 875829: The California Supreme Court affirmed the decision of the Court of Appeal that had affirmed the trial court’s decision to deny a petition for relief from the government claim filing requirement under Government Code section 946.6. Petitioner suffered a double concussion syndrome playing football that was diagnosed on October 31, 2011. Petitioner did not timely file a government tort claim within six months as required by Government Code sections 945.4 and 911.2. Petitioner did timely present an application under Government Code section 911.4 to present a late claim, but respondent did not act on the application, and it was deemed denied by operation of law under Government Code section 911.6. Petitioner later filed a petition in the trial court under section 946.6 for relief from the claim requirement. The trial court properly denied the petition as untimely because it was not filed within six months of the date on which his application to present a late claim was deemed denied by operation of law. The California Supreme Court disapproved of E.M. v. Los Angeles Unified School District (2011) 194 Cal.App.4th 736. (March 6, 2017.)
Torts
J.M. v. Huntington Beach Union High School District (2017) _ Cal.5th _ , 2017 WL 875829: See summary above under Government.
CALIFORNIA COURTS OF APPEAL
Arbitration
Betancourt v. Prudential Overall Supply (2017) _ Cal.App.5th _ , 2017 WL 895834: The Court of Appeal affirmed the trial court’s order denying a motion to compel arbitration in a case alleging violations of the Private Attorneys General Act (PAGA) in California Labor Code section 2698, et seq. The trial court correctly denied defendant’s motion to compel arbitration because a defendant cannot rely on a predispute waiver by a private employee to compel arbitration in a PAGA case, which is brought on behalf of the state. (C.A. 4th, March 7, 2017.)
Emerald Aero v. Kaplan (2017) _ Cal.App.5th _ , 2017 WL 767004: The Court of Appeal reversed the trial court’s order confirming an arbitration award of over $30 million (mostly punitive damages) following a telephonic arbitration hearing. The Court of Appeal ruled the trial court erred in entering judgment on the award because the arbitrator exceeded his powers by issuing an award that violated applicable arbitration rules and procedural fairness principles. (California Code of Civil Procedures, section 1286.2(a)(4).) Less than 24 hours before the arbitration hearing, plaintiffs notified defendant for the first time they were seeking punitive damages. Plaintiffs did so by requesting punitive damages in a late-filed arbitration brief attached to an email sent to the arbitrator and copied to defendant (who was not represented by counsel at the time). This notice violated the parties’ arbitration agreement because it was not reasonably calculated to inform defendant of the punitive damages claim and precluded a fair arbitration proceeding. The notice defects were also compounded by other procedural irregularities in the arbitration process. (C.A. 4th, February 28, 2017.)
Attorney Fees
Beck v. Stratton (2017) _ Cal.App.5th _ , 2017 WL 588009: The Court of Appeal affirmed the trial court’s attorney fee award of $31,365 to respondent (under California Labor Code section 98.2(c)) after petitioner’s unsuccessful appeal (under section 98.2(a)) of the California Labor Commissioner’s award of approximately $6,000 in unpaid wages and penalties to respondent. The trial court properly ruled that respondent’s motion for attorney fees was timely filed within the 60-day deadline applicable to fee motions in unlimited civil cases in California Rules of Court, rules 3.1702 and 8.104. The 30-day deadline for fee motions in limited civil cases in California Rules of Court, rules 3.1702 and 8.822, did not apply. (C.A. 2nd, filed February 14, 2017, published March 8, 2017.)
Gonzalez v. Santa Clara County Department of Social Services (2017) _ Cal.App.5th _ , 2017 WL 781551: The Court of Appeal affirmed the trial court’s order granting attorney fees of $7,500 to one lawyer under Code of Civil Procedure 1021.5, but reversed the trial court’s order denying attorney fees of over $52,000 for the other three lawyers who had represented plaintiff in a writ action and appeal that successfully challenged an administrative order declaring that plaintiff should be reported to the statewide child abuse index for what was deemed excessive discipline of her 12-year-old daughter. The Court of Appeal reversed the denial as to the three attorneys and directed the trial court to reconsider those claims. (C.A. 6th, February 28, 2017.)
Civil Procedure (Anti-SLAPP, Discovery)
City of Los Angeles v. Superior Court (2017) _ Cal.App.5th _ : The Court of Appeal granted a writ petition in part. While the Court of Appeal agreed with the trial court that the Civil Discovery Act applies to actions brought under the California Public Records Act (Government Code, section 6250 et seq.), it disagreed with the trial court’s sanction order against petitioner because it found that petitioner had acted with substantial justification in opposing the discovery motion to compel. (C.A. 2nd, March 2, 2017.)
Colyear v. Rolling Hills Community Association of Rancho Palos Verdes (2017) _ Cal.App.5th _ , 2017 WL 772457: The Court of Appeal affirmed the trial court’s order granting an anti-SLAPP motion to strike a complaint filed by a homeowner and homeowner association board member claiming that an application by another homeowner to have trees trimmed was wrongfully clouding his title. The Court of Appeal held that defendant had made a prima facie showing that the complaint arose from defendant’s statements made in connection with an issue of public interest, and that plaintiff could not show a probability of success on the merits because defendant dismissed his application shortly after the lawsuit was filed and never sought to invoke the homeowner association’s tree-trimming process against plaintiff. (C.A. 2nd, February 28, 2017.)
Flake v. Neumiller & Beardslee (2017) _ Cal.App.5th _ , 2017 WL 412645: See summary below under Legal Malpractice.
Glassdoor, Inc. v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 944227: The Court of Appeal granted the writ petition of petitioner and directed the trial court to set aside its order compelling petitioner to identify the person who had made a post on its website. The order to compel was issued in a lawsuit by Machine Zone, Inc. (MZ) against a former employee named fictitiously as John Doe that alleged John Doe had violated a nondisclosure agreement when he posted a review on petitioner’s website allegedly disclosing confidential information concerning MZ’s technology. The Court of Appeal granted the writ petition because it found that MZ had failed to make a prima facie showing that John Doe’s statements disclosed confidential information in violation of the nondisclosure agreement. (C.A. 6th, March 10, 2017.)
Haniff v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 786464: The Court of Appeal granted a writ petition directing the trial court to reverse its order compelling plaintiff, who alleged serious personal injury claims, to undergo a defense vocational rehabilitation examination. The Court of Appeal held that a defense vocational rehabilitation examination is not one of the six methods of civil discovery expressly authorized by the Civil Discovery Act (Code of Civil Procedure, section 2016.010 et seq.), and whether a defense vocational rehabilitation examination should be an available discovery method, as a matter of fundamental fairness where the plaintiff seeks compensatory damages for wage loss and loss of earning capacity, is better addressed to the Legislature. (C.A. 6th, March 1, 2017.)
Melamed v. Cedars-Sinai Medical Center (2017) _ Cal.App.5th _ , 2017 WL 750493: The Court of Appeal affirmed the trial court’s order granting an anti-SLAPP motion to strike. Plaintiff was suspended by defendant hospital after a patient of his suffered complications requiring correction following a surgery. Every level of administrative review at the hospital upheld the suspension. Plaintiff did not file a writ proceeding to challenge the suspension. He instead filed a lawsuit alleging several causes of action. The Court of Appeal ruled that the trial court properly found that plaintiff’s claims arose out of a protected activity – the medical staff peer review process, and that plaintiff could not show a probability of success on the merits. (C.A. 2nd, February 27, 2017.)
Employment (Wage and Hour, Retaliation)
Beck v. Stratton (2017) _ Cal.App.5th _ , 2017 WL 588009: See summary above under Attorney Fees.
Gateway Community Charters v. Spiess (2017) _ Cal.App.5th _ , 2017 WL 912073: The Court of Appeal affirmed the trial court’s denial of petitioner’s appeal of a California Labor Commissioner finding that former employee respondent was entitled to $640 in wages, $128 in liquidated damages, $105.20 in interest, and $8,538 as a penalty pursuant to California Labor Code section 203. Petitioner claimed it was exempt from section 203 penalties as an “other municipal corporation” pursuant to Labor Code section 220(b). Answering a novel question of statutory interpretation, the Court of Appeal ruled that petitioner was not an “other municipal corporation” for purposes of the statutory exemption from waiting time penalties codified in section 220(b). (C.A. 3rd, March 8, 2017.)
Lemke v. Sutter Roseville Medical Center (2017) _ Cal.App.5th _ , 2017 WL 527475: The Court of Appeal affirmed the trial court’s order granting summary judgment to defendant in an action where plaintiff nurse alleged several causes of action including that she was terminated in retaliation for whistleblowing. The Court of Appeal found that plaintiff did not meet her burden to show defendant’s stated reasons were merely a pretext for retaliating against her. Regarding defamation the Court of Appeal held that defendant’s statements were absolutely privileged because they were made in connection with its internal investigation and in an official proceeding before the California Board of Registered Nursing. The Court of Appeal also found plaintiff had forfeited her claim of evidentiary error for lack of any record citations or analysis of prejudice. (C.A. 3rd, filed February 9, 2017, published February 27, 2017.)
Vaquero v. Stoneledge Furniture (2017) _ Cal.App.5th _ , 2017 WL 770635: The Court of Appeal reversed the trial court’s order granting summary judgment to defendant in a wage and hour class action involving employees paid on commission that alleged failure to provide paid rest periods under Labor Code section 226.7 and the applicable wage order, failure to pay all wages owed upon termination under section 203, unfair business practices, and declaratory relief. The Court of Appeal ruled that employees paid on commission are entitled to separate compensation for rest periods mandated by state law, and employers who keep track of hours worked, including rest periods, violate this requirement by paying employees a guaranteed minimum hourly rate as an advance on commissions earned in later pay periods. (C.A. 2nd, February 28, 2017.)
Government (Elections)
California State University Fresno Association v. County of Fresno (2017) _ Cal.App.5th _ , 2017 WL 818475: The Court of Appeal reversed the trial court’s judgment finding that plaintiff had timely filed a property tax refund claim with defendant and defendant had wrongfully denied that claim. The Court of Appeal ruled that the trial court had no jurisdiction to hear the matter because plaintiff’s tax refund claim was filed after the expiration of the one-year time limit in Revenue and Taxation Code section 5097(a)(3)(A)(i). (C.A. 5th, March 2, 2017.)
Pini v. Fenley (2017) _ Cal.App.5th _ , 2017 WL 772484: The Court of Appeal reversed the trial court’s order summarily dismissing a petition to contest a county supervisor primary election result where the winner received more than 50% of the votes and was declared the winner without a runoff. The Court of Appeal ruled that the election was a general election. Because California Elections Code section 16462 (with a five-day deadline for contesting an election) applies only to primary elections, the 30-day deadline in Elections Code section 16401 applied to this case. (C.A. 3rd, February 28, 2016.)
Wilson v. County of Napa (2017) _ Cal.App.5th _ , 2017 WL 772441: The Court of Appeal affirmed the trial court’s order denying a writ petition seeking to compel the Registrar of Voters for the County of Napa to place on the county ballot their proposed initiative measure entitled “Water, Forest and Oak Woodland Protection Initiative of 2016.” The trial court properly ruled that the measure did not comply with the full text requirement of California Elections Code section 9101 because the measure included a permit requirement for removing certain oak trees, requiring compliance with the best management practices set forth in appendix D, sections 1 and 3 of the Napa County Voluntary Oak Woodland Management Plan (2010), without including the text of those best management practices. (C.A. 1st, February 28, 2017.)
Legal Malpractice (Comparative Fault, Statute of Limitations)
Flake v. Neumiller & Beardslee (2017) _ Cal.App.5th _ , 2017 WL 412645: The Court of Appeal affirmed the trial court’s order granting summary judgment to defendant because the one-year statute of limitations had expired under California Code of Civil Procedure, section 340.6. Once the former counsel told the client, via a motion to withdraw, that the case had already been handed off to another attorney, the client was on notice that former counsel was no longer working for him. Because this lawsuit was filed more than one year after that time, no triable issue of fact remained as to the statute of limitation defense. (C.A. 3rd, filed January 31, 2017, published March 2, 2017.)
Yale v. Bowne (2017) _ Cal.App.5th _ , 2017 WL 527324: The Court of Appeal affirmed most of a judgment entered following a jury trial in a legal malpractice case alleging malpractice in the preparation of an estate plan. The Court of Appeal ruled that the trial court correctly gave a comparative fault instruction requested by defendant, and that substantial evidence supported the jury’s award of $260,000 in damages (to be reduced under the jury’s comparative fault determination). However, the Court of Appeal held that an award of $57,170 for investment losses claimed by plaintiff was not supported by substantial evidence and plaintiff was not entitled to prejudgment interest. The judgment was modified by striking the damage award for investment losses and was affirmed as modified. (C.A. 2nd, filed February 9, 2017, published March 10, 2017.)
Real Property
City of Crescent City v. Reddy (2017) _ Cal.App.5th _ , 2017 WL 632751: The Court of Appeal affirmed the trial court’s orders denying defendant’s evidentiary objections, declining live testimony, and appointing a receiver to oversee compliance with the correction of numerous building code violations at a motel after defendant owner had failed to make the corrections. The Court of Appeal, however, denied plaintiff’s request for attorney fees on appeal. (C.A. 1st, filed February 16, 2017, published March 7, 2017.)
Dr. Leevil, LLC v. Westlake Health Care Center (2017) _ Cal.App.5th _ , 2017 WL 895808: The Court of Appeal affirmed the trial court’s ruling that a lease was subordinate to the deed of trust and was extinguished by the trustee’s sale, and that a notice to quit was valid even though it was served before title was recorded. The lease contained an automatic subordination clause, and under the automatic subordination clause the lease was automatically subordinate to the deed of trust, and the lease was extinguished by the trustee sale. The filing of the complaint was the beginning of the unlawful detainer action. Although title was not perfected before the notice to quit was served, because title was perfected before the complaint was filed, the unlawful detainer proceedings were valid. (C.A. 2nd, March 7, 2017.)
Torts
Johnson v. ArvinMeritor (2017) _ Cal.App.5th _ , 2017 WL 445390: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendants in an action where plaintiff sued automotive parts manufacturers for injuries alleged to have been caused by secondary exposure to asbestos or asbestos-containing materials brought into his home by his father, a mechanic, and from asbestos released from the mechanical components during times he visited his father at work. The trial court properly ruled that plaintiff did not have and could not obtain evidence that he or his father were exposed to asbestos from defendants’ products. (C.A. 1st, filed February 2, 2017, published March 2, 2017.)
Shanks v. Department of Transportation (2017) _ Cal.App.5th _ , 2017 WL 930813: See summary below under Trial.
Trial (Jurors)
Shanks v. Department of Transportation (2017) _ Cal.App.5th _ , 2017 WL 930813: The Court of Appeal reversed the trial court’s decision to remove a juror during deliberations on a dangerous condition of a roadway-wrongful-death case that resulted in a verdict for plaintiffs of $12,690,000. The only portion of the verdict reversed was the liability apportionment finding the defendant Department of Transportation (Department) 90% at fault and the other defendant 10% at fault, because the jury vote was nine-to-three on this issue. The other verdict decisions had unanimous or eleven-to-one votes. After just 90 minutes of deliberation, a juror reported that Juror No. 7 was not deliberating. The trial court confirmed this by questioning that juror and a second juror who had raised concerns about Juror No. 7. The court thereafter excused Juror No. 7 and seated an alternate without making an inquiry of the accused juror or of any of the remaining jurors including the foreperson. The Court of Appeal ruled that the record did not show as a demonstrable reality that Juror No. 7 failed to deliberate or was otherwise unable to perform her duty, and the trial court abused its discretion by discharging her. The error was prejudicial as to the jury’s apportionment of liability between the Department and the other defendant. (C.A. 2nd, March 9, 2017.)
Copyright © 2017 Monty A. McIntyre, Esq.
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