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California Case Summaries Civil™
Summaries of Every New Published California Civil Case
By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee at ADR Services, Inc.
Civil Trial Lawyer | ABOTA National Board Member | Ca. attorney since 1980
For scheduling, contact my ADR Services case manager Christopher Schuster
Phone: (619) 233-1323 Email: Christopher@adrservices.com
Web: http://montymcintyre.com/mcintyre
Monty’s Cell: (619) 990-4312 Monty’s Email: monty@montymcintyre.com
CALIFORNIA COURTS OF APPEAL
Arbitration
EHM Productions, Inc. v. Starline Tours of Hollywood, Inc. (2018) _ Cal.App.5th _ , 2018 WL 1516828: The Court of Appeal affirmed the trial court’s confirmation of a cost award of $41,429.92 that was granted following the confirmation of the initial arbitration award. Defendant’s sole contention on appeal was that the trial court erred by entering two consecutive judgments resulting from the same arbitration. The Court of Appeal ruled that confirmation of the cost award was not precluded by the one final judgment rule or principles of waiver or estoppel. (C.A. 2nd, March 28, 2018.)
Attorney Fees
Garcia v. Mercedes-Benz USA (2018) _ Cal.App.5th _ , 2018 WL 1633322: The Court of Appeal affirmed the trial court’s order denying plaintiff’s motion for attorney fees, but modified the judgment to award plaintiff $750 in costs in an action under the Song-Beverly Consumer Warranty Act (the Act; Civil Code, section 1790 et seq.) There is a split of authority on how to determine the prevailing party in an action under the Act. The Court of Appeal followed the more numerous line of decisions requiring plaintiff to prove they obtained their litigation objectives, not just a monetary recovery. The trial court properly denied fees because plaintiff had filed suit against defendant, not the auto dealership, to recover dealer add-ons that she was not entitled to recover from defendant under the Act. Plaintiff’s confidential settlement after the lawsuit was filed also made it impossible for the trial court to determine whether plaintiff had obtained her litigation objectives. Moreover, plaintiff was not the prevailing party if her action under the Act was brought only to recover attorney fees. Plaintiff was, however, entitled to her costs. She was the prevailing party under Code of Civil Procedure section 1032 because she obtained a net monetary recovery. (C.A. 2nd, April 5, 2018.)
New Cingular Wireless PCS v. Public Utilities Commission (2018) _ Cal.App.5th _ , 2018 WL 1532332: The Court of Appeal granted a writ petition ordering that respondent review its remand decisions, made following the decision in New Cingular Wireless PCS, LLC v. Public Utilities Com. (2016) 246 Cal.App.4th 784, that awarded all attorney fees claimed by intervenors, The Utility Reform Network (TURN) and the Center for Accessible Technology (CforAT), under Public Utilities Code section 1803. While respondent did make an attempt to identify orders or decisions adopted by respondent and link them to contentions or recommendations advocated by TURN and CforAT, there was no effort to trace the amounts of fees and costs incurred to the specific orders or decisions so identified. If it is not feasible to trace time and costs billed by TURN and CforAT with precision to an order or decision, then respondent must make an effort to discount the claimed amount for that lack of precision. (C.A. 1st, filed March 13, 2018, published March 29, 2018.)
Timed Out LLC v. 13359 Corp. (2018) _ Cal.App.5th _ , 2018 WL 1514226: The Court of Appeal affirmed the trial court’s order awarding plaintiff its attorney fees incurred only before the settlement offer made by defendant under Code of Civil Procedure section 998. Plaintiff sued for the violation of her right of publicity under the common law and Civil Code section 3344. Section 3344 allows the prevailing party to recover attorney fees and costs. Defendant served a 998 offer to pay the total sum of $12,500 “exclusive of reasonable costs and attorney fees, if any.” After a bench trial, the trial court awarded plaintiff damages of $4,483.30. Both parties requested attorney fees and costs. The trial court properly ruled that plaintiff did not obtain a result better than the 998 offer, and properly awarded plaintiff her pre-998 offer attorney fees and costs and awarded defendant their post-998 attorney fees and costs. Defendant was awarded net attorney fees of $1,575, plaintiff was awarded preoffer costs of $480, and defendant was awarded postoffer costs of $15,757. (C.A. 2nd, filed February 27, 2018, published March 27, 2018.)
Civil Code
Timed Out LLC v. 13359 Corp. (2018) _ Cal.App.5th _ , 2018 WL 1514226: See summary above under Attorney Fees.
Civil Procedure
Aron v. WIB Holdings (2018) _ Cal.App.5th _ , 2018 WL 1516826: The Court of Appeal reversed the trial court’s order granting a motion for new trial, and affirmed the trial court’s order granting an anti-SLAPP motion to strike under Code of Civil Procedure, section 425.16. Plaintiff tenant won an unlawful detainer action and the landlord appealed. Before the appeal was decided, plaintiff sued defendant under the Santa Monica Tenant Harassment Ordinance under the Santa Monica Municipal Code, and defendant filed an anti-SLAPP motion. The trial court properly granted the anti-SLAPP motion because plaintiff’s action arose out of a protected activity, the underlying unlawful detainer action, and plaintiff could not establish a reasonable probability of prevailing on the merits because defendant’s appeal was pending. Later, after the unlawful detainer appeal was affirmed by the Court of Appeal, the trial court erred in granting plaintiff’s motion for a new trial on the basis that the remittitur was “newly discovered” evidence that plaintiff could not reasonably have discovered at the time of the anti-SLAPP hearing. The Court of Appeal ruled that newly discovered evidence within the meaning of Code of Civil Procedure section 657(4) must be evidence that was in existence at the time of the trial or hearing on the dispositive motion. The remittitur was not such evidence. (C.A. 2nd, March 28, 2018.)
City and County of San Francisco v. HomeAway.com, Inc. (2018) _ Cal.App.5th _ , 2018 WL 1518380: See summary below under Government.
De Havilland v. FX Networks, LLC (2018) _ Cal.App.5th _ , 2018 WL 1465802: The Court of Appeal reversed the trial court’s order denying an anti-SLAPP motion to strike plaintiff’s complaint seeking damages and alleging causes of action for the common law privacy tort of misappropriation, violation of Civil Code section 3344, California’s statutory right of publicity, false light invasion of privacy, unjust enrichment arising from the airing of an eight-part docudrama entitled Feud: Bette and Joan (Feud). Plaintiff Olivia de Havilland sued claiming she was portrayed without her consent. The trial court denied defendant’s motion to strike because it found that Feud tried to portray plaintiff as realistically as possible, was therefore not “transformative” under Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387 (Comedy III), and therefore was not entitled to First Amendment protection. The Court of Appeal held the First Amendment protects defendant’s portrayal of plaintiff in a docudrama without her permission, and ruled that Feud’s portrayal of plaintiff was transformative under Comedy III. The Court of Appeal also found that plaintiff did not carry her burden of proving that she would probably prevail on her false light claim. Because plaintiff’s right of publicity and false light claims failed, her unjust enrichment claim failed as well. (C.A. 2nd, March 26, 2018.)
Demeter v. Taxi Computer Services (2018) _ Cal.App.5th _ , 2018 WL 1477522: The Court of Appeal affirmed the trial court’s order granting summary judgment in plaintiff’s putative class action alleging violation of the Fee-Related Talent Services Law (FTSL; Labor Code, section 1700 et seq.) and the Unfair Competition Law (UCL; Business & Professions Code, section 17200 et seq.). The trial court correctly ruled that plaintiff could not prove he had suffered any damages as a result of defendant’s alleged failure to provide him with an FTSL compliant contract. The alleged violation neither rendered plaintiff’s contract illegal nor rendered defendant an “illegal” operation; it merely made plaintiff’s contract voidable. Plaintiff also failed to show any damages related to defendant’s failure to provide a bond as required by the FTSL. Plaintiff also suffered no damages under the UCL. (C.A. 2nd, March 27, 2018.)
Guarino v. County of Siskiyou (2018) _ Cal.App.5th _ , 2018 WL 1096519: The Court of Appeal affirmed the trial court’s order granting an anti-SLAPP motion by defendants to plaintiff’s complaint with 19 causes of action alleging that plaintiff was improperly investigated and forced to resign his position as county counsel. The trial court properly concluded that the causes of action arose from protected activity, and that plaintiff had failed to show a probability of prevailing on the merits at trial. (C.A. 3rd, filed March 1, 2018, published March 29, 2018.)
Timed Out LLC v. 13359 Corp. (2018) _ Cal.App.5th _ , 2018 WL 1514226: See summary above under Attorney Fees.
Walt Disney Parks & Resorts U.S., Inc. v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 1081223: The Court of Appeal granted a writ petition and ordered the trial court to consider a motion to transfer venue on the merits. The trial court erred in determining that the motion was time-barred. The strict time requirements of Code of Civil Procedure, section 396a did not bar petitioner’s motion under Code of Civil Procedure, section 397. Moreover, the failure to comply with section 396b does not automatically waive a party’s rights. (C.A. 2nd, filed February 28, 2018, published March 26, 2018.)
Class Actions
Demeter v. Taxi Computer Services (2018) _ Cal.App.5th _ , 2018 WL 1477522: See summary above under Civil Procedure.
Consumer Protection
Garcia v. Mercedes-Benz USA (2018) _ Cal.App.5th _ , 2018 WL 1633322: See summary above under Attorney Fees.
Education
1901 First Street Owner v. Tustin Unified School District (2018) _ Cal.App.5th _ , 2018 WL 1531426: The Court of Appeal affirmed the trial court’s judgment, following a bench trial, in favor of defendant. The issue was whether the square footage of interior space outside individual apartment units should be included in the calculation of school impact fees (e.g. interior hallways, storage rooms, mechanical rooms, fitness centers, lounges, etc.; interior common area) under Government Code, section 65995(b)(1). The Court of Appeal ruled that assessable space, as defined in section 65995, includes the interior common area. (C.A. 4th, March 29, 2018.)
Elections
Perksy v. Bushey (2018) _ Cal.App.5th _ , 2018 WL 1466574: The Court of Appeal affirmed the trial court’s order denying a writ petition seeking to enjoin the circulation of a recall against petitioner (a sitting Superior Court judge) on the ground that it should have been filed with the California Secretary of State, not the Registrar of Voters. The trial court properly denied the writ petition, and properly ruled that the Registrar of Voters was the proper official to review and approve recall petitions for superior court judges and that the recall petition submitted in this case was neither misleading nor inaccurate. (C.A. 6th, March 26, 2018.)
Employment
Guarino v. County of Siskiyou (2018) _ Cal.App.5th _ , 2018 WL 1096519: See summary above under Civil Procedure.
Equity
Wilson v. Southern California Edison Company (2018) _ Cal.App.5th _ , 2018 WL 1465528: The Court of Appeal reversed a judgment, following a jury trial, awarding plaintiff $1.2 million in damages on her nuisance claim arising from neutral-to-earth voltage in plaintiff’s house that was caused by an electrical substation next door that was operated by defendant. The Court of Appeal could not conclude as a matter of law that the harm plaintiff suffered did not outweigh the public benefit of defendant’s conduct in delivering electrical energy. However, it found that the trial court erred in admitting irrelevant evidence related to stray voltage incidents involving prior owners or tenants of the house or other properties, the admission of such evidence was prejudicial to defendant, and reversed and remanded to the trial court for retrial of the nuisance claim. (C.A. 2nd, March 26, 2018.)
Urgent Care Medical Services v. City of Pasadena (2018) _ Cal.App.5th _ , 2018 WL 1149371: The Court of Appeal affirmed the trial court’s orders, in two actions deemed related, granting requests by the City of Pasadena (City) for injunctions prohibiting defendants from operating medical marijuana dispensaries in the City. The trial court properly granted the injunctions because the City’s Municipal Code states that medical marijuana dispensaries are not permitted, and non-permitted uses are a nuisance. (C.A. 2nd, filed March 5, 2018, published March 28, 2018.)
Government
1901 First Street Owner v. Tustin Unified School District (2018) _ Cal.App.5th _ , 2018 WL 1531426: See summary above under Education.
City and County of San Francisco v. HomeAway.com, Inc. (2018) _ Cal.App.5th _ , 2018 WL 1518380: The Court of Appeal affirmed the trial court’s order granting a petition to enforce an administrative subpoena by petitioner’s Tax Collector seeking the disclosure of data about rental transactions involving accommodations located in San Francisco that were arranged using a HomeAway.com website. The Court of Appeal ruled that the subpoena did not require respondent to disclose electronic communications, and the procedure petitioner used to compel disclosure of respondent’s customer records was authorized by the Stored Communications Act (18 U.S.C. sections 2701–2712). (C.A. 1st, filed March 15, 2018, published March 28, 2018.)
Rodriguez v. Dept. of Transportation (2018) _ Cal.App.5th _ , 2018 WL 1514987: See summary below under Torts.
Urgent Care Medical Services v. City of Pasadena (2018) _ Cal.App.5th _ , 2018 WL 1149371: See summary above under Equity.
Public Resources Code
Greenfield v. Mandalay Shores Community Association (2018) _ Cal.App.5th _ , 2018 WL 1477525: The Court of Appeal reversed the trial court’s order denying a motion for preliminary injunction in plaintiffs’ action to stay the enforcement of defendant’s resolution banning short term rentals (STR ban) in Oxnard Shores. The Court of Appeal agreed with plaintiffs’ creative argument that, because defendant failed to get a coastal development permit before adopting the STR ban, defendant violated the California Coastal Act’s (Public Resources Code, section 30000 et seq.) requirement of a coastal development permit for any “development” that results in a change in the intensity of use of or access to land in a coastal zone. Because plaintiffs made a prima facie showing of a violation, section 30803(a) required the granting of the preliminary injunction. (C.A. 2nd, March 27, 2018.) New Cingular Wireless PCS v. Public Utilities Commission (2018) _ Cal.App.5th _ , 2018 WL 1532332: See summary above under Attorney Fees.
Torts
Rodriguez v. Dept. of Transportation (2018) _ Cal.App.5th _ , 2018 WL 1514987: The Court of Appeal affirmed the trial court’s summary judgment for defendant based upon design immunity (Government Code, section 830.6) in an action alleging that a roadway was a dangerous condition because the roadway shoulder did not have “rumble strips.” The trial court properly granted summary judgment. Under section 830.6, all that is required to establish the discretionary approval element is evidence that an employee with discretionary authority approved the plan or design, and defendant provided such evidence. (C.A. 5th, March 27, 2018.)
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