By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee at ADR Services, Inc.
For ADR scheduling contact: Kelsey@adrservices.org
Web: http://montymcintyre.com/mcintyre
Civil Trial Lawyer | ABOTA National Board Member | Ca. attorney since 1980
Phone: (619) 990-4312 | Email: monty@montymcintyre.com
CALIFORNIA SUPREME COURT
Employment
Mendoza v. Nordstrom, Inc. (2017) _ Cal.5th _ , 2017 WL 1833143: The California Supreme Court issued an opinion to resolve unsettled questions concerning the construction of the day of rest statutes in California Labor Code sections 550–558.1, which prohibit an employer from causing employees to work more than six days in seven (section 552), but do not apply when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof (section 556). Answering three questions posed by the Ninth Circuit Court of Appeals, the California Supreme Court ruled as follows: (1) A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited. (2) The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply. (3) An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest. (May 8, 2017.)
CALIFORNIA COURTS OF APPEAL
Arbitration
Garcia v. Pexco (2017) _ Cal.App.5th _ , 2017 WL 1435788: The Court of Appeal affirmed the trial court’s order granting defendant’s motion to compel arbitration. Plaintiff signed an arbitration agreement with a temporary staffing company, who assigned plaintiff to work with defendant Pexco. Although defendant Pexco was not a signatory to the arbitration agreement, the Court of Appeal held that plaintiff was equitably estopped from denying Pexco’s right to arbitrate and the agency exception applied. (C.A. 4th, filed April 24, 2017, published May 16, 2017.)
Attorney Fees
Kinney v. Clark (2017) _ Cal.App.5th _ , 2017 WL 2131382: The Court of Appeal dismissed an appeal of a post judgment award for attorney fees on the basis that it was frivolous. Plaintiff had been contesting attorney fees since 2008, and had been declared a vexatious litigant by the Los Angeles Superior Court, the Second District Court of Appeal, and the United States District Court for the Central District of California. The Court of Appeal imposed an expanded prefiling order, under Code of Civil Procedure section 391.7, requiring plaintiff to obtain leave of the presiding judge before filing new litigation (including any appeal or writ) against defendant or her attorney in a court of this state, even when he is represented by counsel. (C.A. 2nd, May 17, 2017.)
Civil Code
Gillotti v. Stewart (2017) _ Cal.App.5th _ , 2017 WL 1488711: The Court of Appeal affirmed the jury’s finding that the general contractor defendant was negligent and liable for some, but not all, of the alleged violations of building standards under the Right to Repair Act, Civil Code section 895, et seq. (the Act). The jury found the grading subcontractor defendant was not negligent in any respect. The trial court, not the jury, found the builder/seller was liable after it failed to appear for trial. The Court of Appeal found to be persuasive, though not binding or precedential, its disagreement with Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98. The Court of Appeal ruled that tree damage was recoverable under section 897 of the Act, but concluded there was no miscarriage of justice warranting reversal of the jury’s finding in favor of the grading subcontractor. The Court of Appeal also affirmed post trial orders made by the trial court. (C.A. 3rd, filed April 26, 2017, published May 18, 2017.)
Krechuniak v. Noorzoy (2017) _ Cal.App.5th _ , 2017 WL 1967796: See summary below under Settlements.
Civil Procedure (Coordination, Malicious Prosecution)
Ford Motor Warranty Cases (2017) _ Cal.App.5th _ , 2017 WL 1832221: The Court of Appeal granted a writ petition challenging the trial court’s refusal to add to a coordination proceeding involving 470 cases an additional 467 substantively indistinguishable cases that had been recently filed in the same counties. The Court of Appeal ruled that a trial judge’s order declining to add cases to a coordination proceeding, like the coordination motion judge’s original order, is subject to independent review by the Court of Appeal. The Court also held that the trial court erred in refusing to add the cases to the proceeding. (C.A. 2nd, May 8, 2017.)
Kinney v. Clark (2017) _ Cal.App.5th _ , 2017 WL 2131382: See summary above under Attorney Fees.
Van Audenhove v. Perry (2017) _ Cal.App.5th _ , 2017 WL 2200166: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend in an action for malicious prosecution. Plaintiff alleged that defendant contacted the police and falsely accused him of stalking and the police arrested him, but the district attorney’s office ultimately declined to prosecute. The trial court properly sustained the demurrer and dismissed the action on the basis that the complaint failed to allege a prosecution as required for a claim of malicious prosecution. The Court of Appeal ruled that a cause of action for malicious prosecution cannot be premised on an arrest (not made pursuant to a warrant) that does not result in formal charges. It published the decision because it found no California case on point. (C.A. 4th, May 19, 2017.)
Public Resources Code
Hardesty v. State Mining and Geology Board (2017) _ Cal.App.5th _ , 2017 WL 1374718: The Court of Appeal affirmed the trial court’s denial of a writ petition seeking to overturn the findings of respondent that petitioner had no vested rights to surface mine at the Big Cut Mine in El Dorado County. The Court of Appeal ruled that a federal mining patent–a deed perfected after working a mining claim–has no effect on the application of state regulation of mining. The fact that mines were worked on the property years ago does not necessarily mean any surface or other mining existed when the Surface Mining and Reclamation Act of 1975 (Public Resources Code section 2710 et. seq.) took effect, such that any right to surface mine was grandfathered. The Court of Appeal also agreed with the trial court’s conclusions that, on the record, neither of petitioner’s procedural claims was persuasive. (C.A. 3rd, filed April 17, 2017, published May 16, 2017.)
Real Property (Condemnation)
Central Valley Gas Storage v. Southam (2017) _ Cal.App.5th _ , 2017 WL 1398502: The Court of Appeal affirmed the trial court’s in limine ruling, in a condemnation action, excluding the property owner’s evidence of the value of their land for an underground natural gas storage project based on reservoir volume. The trial court did not err in factually distinguishing the holding in Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113 that was decided at a time when there was not yet a developed market in California for natural gas storage leases. The trial court properly considered evidence showing the development of an independently operated gas storage market that relies exclusively on surface acres as the valuation metric, and it did not abuse its discretion in excluding a volume-based valuation approach based on the failure to present any evidence this valuation approach had ever been used in the market for natural gas storage leases. (C.A. 3rd, filed April 19, 2017, published May 11, 2017.)
Settlements
Krechuniak v. Noorzoy (2017) _ Cal.App.5th _ , 2017 WL 1967796: The Court of Appeal affirmed the trial court’s order entering a stipulated judgement for $850,000 pursuant to a memorandum of settlement. The settlement called for payments totaling $600,000, and included a stipulated judgment for $850,000 in the event of a breach. In his appeal, defendant contended that the stipulated judgment amount included a liquidated damages penalty of $250,000 that was unenforceable under Civil Code section 1671, but he did not make this argument in the trial court. The Court of Appeal ruled that defendant had forfeited his contention. The determination of whether a contract provision is an illegal penalty or an enforceable liquidated damage clause is a question to be determined by the trial court and, on review, appellate deference to the trial court’s factual findings is required unless the facts are undisputed and susceptible of only one reasonable conclusion. (C.A. 6th, May 12, 2017.)
Torts
Van Audenhove v. Perry (2017) _ Cal.App.5th _ , 2017 WL 2200166: See summary above under Civil Procedure.
Trusts and Estates
Higgins v. Higgins (2017) _ Cal.App.5th _ , 2017 WL 1880923: The Court of Appeal reversed the trial court’s judgment for defendant in an action where plaintiff sought to impose a constructive trust. A wife agreed to hold funds in trust for her husband’s elderly stepmother. After her husband’s death, the wife changed the form of the accounts and used the funds for her own purposes. The stepmother died and her personal representative brought this action. The trial court granted judgment for the wife because it found the trust designation on the accounts was revocable. The Court of Appeal held that, despite the form of the bank accounts, when clear and convincing evidence shows funds were transferred to an account owner to hold in an irrevocable trust for a third party beneficiary and the trustee repudiates the trust, a constructive trust may be imposed on the funds for the beneficiary’s estate to prevent unjust enrichment. (C.A. 2nd, May 9, 2017.)
Copyright © 2017 Monty A. McIntyre, Esq.
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