Summaries of Every New Published California Civil Case
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
Constitution
Lewis v. Superior Court (2017) _ Cal.5th _ , 2017 WL 3014285: The California Supreme Court affirmed the decision of the Court of Appeal denying petitioner’s writ petition seeking to overturn the trial court’s denial of petitioner’s writ of administrative mandamus that sought to overturn the decision of the Medical Board of California (Board) to revoke petitioner’s license and stay revocation while placing him on probation for three years. Petitioner claimed that the Board’s actions in obtaining patient prescription records from the Controlled Substance Utilization Review and Evaluation System (CURES) without first obtaining patient authorization or issuing any subpoenas violated his patient’s privacy rights. The California Supreme Court ruled that the balance tipped in favor of the Board’s interests in protecting the public from unlawful use and diversion of a particularly dangerous class of prescription drugs and protecting patients from negligent or incompetent physicians. Because any potential invasion of privacy caused by the Board’s actions was justified by countervailing interests, the Board did not violate article I, section 1 of the California Constitution when it obtained patient prescription records from CURES without first obtaining patient authorization or issuing any subpoenas. (July 19, 2017.)
Environment (CEQA, Federal Preemption)
Friends of Eel River v. North Coast Railroad Authority (2017) _ Cal.5th _ , 2017 WL 3185220: The California Supreme Court reversed the Court of Appeal’s decision holding that the California Environmental Quality Act (CEQA, Public Resources Code, section 21000 et seq.) was preempted by the Interstate Commerce Commission (ICC) Termination Act of 1995 (Public Law No. 104-88 (Dec. 29, 1995) 109 Stat.803) (ICCTA; see 49 U.S.C. section 10101 et seq.) regarding a railroad project undertaken by a state public entity, defendant North Coast Railroad Authority, along with lessee private entity Northwestern Pacific Railroad Company. The California Supreme Court held that the application of state law to govern the functioning of subdivisions of the state does not necessarily constitute regulation prohibited by the ICCTA. To determine the reach of a federal law preempting state regulation of a state-owned railroad, the Court applied a presumption that, in the absence of unmistakably clear language, Congress does not intend to deprive the state of sovereignty over its own subdivisions to the point of upsetting the usual constitutional balance of state and federal powers. The state as owner cannot adopt measures of self-governance that conflict with the ICCTA or invade the regulatory province of the federal regulatory agency. But, there is a sphere of regulatory freedom enjoyed by owners, two of which are present in this case: environmental decisions concerning track repair on an existing line, and the level of freight service within certain boundaries to be offered on an existing line. Under these circumstances, the ICCTA does not preempt the application of CEQA to the project. (July 27, 2017.)
Privacy
Lewis v. Superior Court (2017) _ Cal.5th _ , 2017 WL 3014285: See summary above under Constitution.
CALIFORNIA COURTS OF APPEAL
Administrative Law
Murphey v. Shiomoto (2017) _ Cal.App.5th _ , 2017 WL 2888691: See summary below under Government.
Appeal
Ewald v. Nationstar Mortgage (2017) _ Cal.App.5th _ , 2017 WL 2793846: The Court of Appeal affirmed the trial court’s summary judgment for defendant, without discussing the merits, because the opening brief did not satisfy counsel’s duty to provide adequate legal authority to support the appeal, plaintiff’s counsel did not file a reply brief, and plaintiff never offered any explanation for failing to comply with the duty to properly brief the case. (C.A. 3rd, filed June 28, 2017, published July 27, 2017.)
Arbitration
Aanderud v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 3185218: The Court of Appeal treated an appeal as a writ petition, granted the writ petition, and ordered the trial court to partially modify its order granting a motion to compel arbitration, ordering plaintiffs to submit their individual claim to arbitration, and dismissing the class claims without prejudice. The Court of Appeal ruled that the delegation clause was enforceable, and it was the arbitrator, not the court, who was to determine the enforceability of the arbitration provision and whether it covers class claims. The Court of Appeal also vacated the order dismissing the class claims. (C.A. 5th, July 26, 2017.)
Attorneys
Beachcomber Management Crystal Cove v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 2823001: The Court of Appeal granted a writ petition and ordered the trial court to vacate its order disqualifying defendant’s counsel in a derivative action brought by plaintiffs against the defendants who were the sole managing member of the limited liability company. The trial court erred in failing to apply a more specific line of cases that governs an attorney’s successive representation of clients in a derivative lawsuit brought on a small or closely held company’s behalf against the insiders who run the company. Under these cases, an attorney may represent the insiders in a derivative lawsuit by the company despite the attorney’s previous representation of the company regarding issues raised in the suit. Unlike the ordinary successive representation case, these cases recognize the attorney’s representation of the insiders does not threaten the attorney’s duty of confidentiality to the company because the insiders already are privy to all of the company’s confidential information. Any attorney representing the insiders would discover the company’s confidential information because the insiders are the source of that information. The trial court was directed to determine whether the reasoning in the cases discussed by the Court of Appeal permits defendants’ counsel to continue representing defendants in the lawsuit, determine whether the additional grounds plaintiffs raised in their motion support disqualification, and enter a new order on plaintiffs’ disqualification motion. (C.A. 4th, filed June 28, 2017, published July 28, 2017.)
Civil Procedure (Anti-SLAPP, Discovery)
Bonni v. St. Joseph Health System (2017) _ Cal.App.5th _ , 2017 WL 3167351: The Court of Appeal reversed the trial court’s order granting defendant’s anti-SLAPP motion to strike in a case where plaintiff physician sued defendants for retaliation under Health and Safety Code, section 1278.5 (the whistleblower statute), alleging that defendants retaliated against him for his whistleblower complaints by summarily suspending his medical staff privileges and conducting hospital peer review proceedings. The Court of Appeal held that plaintiff’s retaliation claim arose from defendants’ alleged acts of retaliation against plaintiff because he complained about the robotic surgery facilities at the hospitals, and not from any written or oral statements made during the peer review process or otherwise. Therefore, defendants failed to satisfy the first prong of the anti-SLAPP statute’s two-part test by failing to show plaintiff’s claim arose from protected activity. (C.A. 4th, July 26, 2017.) Conroy v. Wells Fargo Bank (2017) _ Cal.App.5th _ , 2017 WL 3205559: See summary below under Real Property.
Crossroads Investors v. Federal National Mortgage Association (2017) _ Cal.App.5th _ , 2017 WL 3166914: After the California Supreme Court granted a writ petition by defendant, depublished the original Court of Appeal opinion, and remanded the matter to reconsider the appeal in light of Baral v. Schnitt (2016) 1 Cal.5th 376, the Court of Appeal reversed the trial court’s order denying defendant’s anti-SLAPP motion to strike. Plaintiff sued for wrongful foreclosure, breach of contract, fraud, and other tort and contract causes of action after defendant sold real property in a nonjudicial foreclosure sale after plaintiff failed to get confirmation of a bankruptcy reorganization plan. The Court of Appeal ruled that, except for claims based on one of defendant’s actions, all of plaintiff’s claims arose from defendant’s constitutionally protected actions that were taken as part of, or related to, the bankruptcy action. Moreover, plaintiff did not establish a prima facie case in support of those claims, as all of its tort claims based on protected activity attacked statements privileged under Civil Code section 47, and the contract claims arising from protected activity were barred as a matter of law. (C.A. 3rd, July 26, 2017.)
FilmOn.com v. DoubleVerify, Inc. (2017) _ Cal.App.5th _ , 2017 WL 2807911: The Court of Appeal affirmed the trial court’s order granting an anti-SLAPP motion to strike under Code of Civil Procedure section 425.16 in an action where plaintiff alleged trade libel, slander, tortious interference with contract, and other business-related torts against defendant. The Court of Appeal ruled that defendant’s statement that plaintiff hosted adult content and copyright infringing material on its website concerned issues of public interest. (C.A. 2nd, filed June 29, 2017, published July 25, 2017.)
Minnick v. Automotive Creations, Inc. (2017) _ Cal.App.5th _ , 2017 WL 3203265: See summary below under Employment.
Rush v. White Corporation (2017) _ Cal.App.5th _ , 2017 WL 3205964: The Court of Appeal affirmed the trial court’s order granting summary judgment due to the plaintiffs’ failure to comply with the trial court’s order mandating compliance with California Rule of Court 3.1350. The trial court did not abuse its discretion in granting the summary judgment. (C.A. 1st, July 28, 2017.)
The Estuary Owners Association v. Shell Oil Co. (2017) _ Cal.App.5th _ , 2017 WL 2793837: The Court of Appeal affirmed in part and reversed in part the trial court’s order granting summary adjudication and summary judgment to defendant Shell Oil Company, the original owner of the property. The Court of Appeal ruled that the trial court had erred in granting summary judgment under Code of Civil Procedure section 337.15 as to plaintiffs’ claims that were based upon fuel spills during the operation of a fuel terminal before the residential development was constructed. Section 337.15 bars only claims alleging injury caused by latent construction defects. The summary judgment as to the nuisance causes of action was reversed. However, the trial court properly ruled that the negligence claims were barred by the three-year statute of limitations under Code of Civil Procedure section 338(b), and this portion of the summary judgment was affirmed. (C.A. 1st, filed June 28, 2017, published July 26, 2017.)
ZL Technologies, Inc. v. Does 1-7 (2017) _ Cal.App.5th _ , 2017 WL 3048761: The Court of Appeal reversed the trial court’s order denying a motion to compel compliance with a subpoena seeking the identity of Doe defendants that plaintiff contended had anonymously defamed it on Glassdoor, Inc.’s website for job seekers, and also reversed the trial court’s order later dismissing the action for failing to serve the Doe defendants. The trial court erred in deeming the comments to be entirely protected opinion. The six reviews included factual assertions providing a legally sufficient basis for plaintiff’s defamation cause of action. The Court of Appeal also ruled that constitutional protections weigh in favor of requiring a plaintiff to make a prima facie evidentiary showing of the elements of defamation, including falsity, before disclosure of a defendant’s identity can be compelled. (C.A. 1st, July 19, 2017.)
Class Actions
Aanderud v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 3185218: See summary above under Arbitration.
Kizer v. Tristar Risk Management (2017) _ Cal.App.5th _ , 2017 WL 2729841: The Court of Appeal affirmed the trial court’s order denying class certification in a wage and hour class action for failure to play claims examiners overtime compensation. The trial court properly denied the motion because plaintiffs failed to show that whether the putative class members worked any overtime at all was subject to common proof. To satisfy the commonality requirement for class certification, plaintiffs were required to show their liability theory could be established on a classwide basis through common proof. Typically, in overtime claims, plaintiffs show this by presenting evidence of an employer policy or practice that generally required the class members to work overtime. Plaintiffs, however, presented no evidence of any such policy or practice. A plaintiff seeking class certification on an unfair competition claim law (Business and Professions, section 17200 et seq.) must establish that common issues of law or fact predominate, the representative’s claim is typical of the class, and all other elements required for class certification. Substantial evidence supported the court’s decision that plaintiffs failed to make that showing. (C.A. 4th, filed June 26, 2017, published July 26, 2017.)
Costs
Swigart v. Bruno (2017) _ Cal.App.5th _ , 2017 WL 3016756: See summary below under Torts.
Employment
Kizer v. Tristar Risk Management (2017) _ Cal.App.5th _ , 2017 WL 2729841: See summary above under Class Actions.
Minnick v. Automotive Creations, Inc. (2017) _ Cal.App.5th _ , 2017 WL 3203265: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend to a complaint alleging that defendant’s vacation policy violated state law because it required employees who worked for less than one year to forfeit vested vacation pay. Defendant’s vacation policy lawfully provided that employees did not begin to earn vacation time until after their first year. Because plaintiff’s employment ended during his first year, he did not have any vested or accrued vacation pay and was not owed any vacation wages. (C.A. 4th, July 28, 2017.)
Ethics
Beachcomber Management Crystal Cove v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 2823001: See summary above under Attorneys.
Government (Dangerous Condition, Immunity)
Murphey v. Shiomoto (2017) _ Cal.App.5th _ , 2017 WL 2888691: The Court of Appeal reversed the trial court’s order granting a writ petition ordering the Department of Motor Vehicles to rescind an order suspending petitioner’s driver’s license for driving under the influence and awarding attorney fees and costs to petitioner. The trial court abused its discretion in ruling that the police officer’s sworn and unsworn reports were inadmissible. The trial court also erred in finding that the weight of the evidence did not support the hearing officer’s decision to uphold the suspension. Because petitioner was no longer the prevailing party, he was not entitled to costs or to attorney fees under Government Code section 800. (C.A. 4th, filed July 7, 2017, published July 28, 2017.)
Toeppe v. City of San Diego (2017) _ Cal.App.5th _ , 2017 WL 3187391: See summary below under Torts.
Privacy
ZL Technologies, Inc. v. Does 1-7 (2017) _ Cal.App.5th _ , 2017 WL 3048761: See summary above under Civil Procedure.
Real Property
Conroy v. Wells Fargo Bank (2017) _ Cal.App.5th _ , 2017 WL 3205559: The Court of Appeal affirmed the trial court’s order sustaining defendant Wells Fargo’s demurrer without leave to amend in an action filed by plaintiffs seeking to stop a foreclosure after they stopped paying their mortgage. The operative complaint did not state valid causes of action for intentional or negligent misrepresentation because it did not properly plead actual reliance or damages proximately caused by defendant. Plaintiffs could not assert a tort claim for negligence arising out of a contract with defendant. Due to the lack of detrimental reliance on any of defendant’s alleged promises, plaintiffs did state a viable cause of action for promissory estoppel. The Civil Code section 2923.6 claim was not viable because subdivision (g) excludes loan modification applications undertaken before January 2, 2013, and defendant considered and rejected a loan modification before that date. Civil Code section 2923.7 requires a borrower to expressly request a single point of contact with the loan servicer, and plaintiffs’ complaint did not allege that they requested a single point of contact. The trial court properly dismissed the unfair competition law claim because it was merely derivative of other causes of action that were properly dismissed. (C.A. 3rd, July 28, 2017.)
Crossroads Investors v. Federal National Mortgage Association (2017) _ Cal.App.5th _ , 2017 WL 3166914: See summary above under Civil Procedure.
Cummings v. Dessel (2017) _ Cal.App.5th _ , 2017 WL 3048706: The Court of Appeal affirmed the trial court’s judgment ordering partition of real property by the appraisal method. The Court of Appeal ruled that the trial court erred when it ordered partition of the property by appraisal because the parties had not agreed to that method, as required by statute, but it affirmed the judgment because defendants failed to show that the error was prejudicial. (C.A. 1st, July 19, 2017.)
Torts (Assumption of Risk, Dangerous Condition, Immunity, Privette Doctrine, Strict Liability, Wrongful Death)
Alvarez v. Seaside Transportation (2017) _ Cal.App.5th _ , 2017 WL 3083926: The Court of Appeal affirmed the trial court’s summary judgment for defendants based upon Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette). Plaintiff sued for personal injuries suffered when his van hit a shipping container while at work. Plaintiff’s employer Pacific Crane Maintenance Company had been hired by Evergreen Container Terminal to perform maintenance work at a marine container terminal. The trial court properly granted summary judgment to defendants based on the Privette doctrine because defendants provided sufficient evidence to trigger the Privette presumption, and plaintiff did not raise a triable issue of fact. (C.A. 2nd, July 20, 2017.)
County of San Mateo v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 3141190: The Court of Appeal affirmed the trial court’s order denying petitioner’s writ petition seeking to overturn the trial court’s denial of a motion for summary judgment on the basis of Government Code section 831.2, in a case where a massive tree fell on a child’s tent and crushed him inflicting catastrophic injuries. The Court of Appeal affirmed, because it found there were triable issues of fact as to whether the property was “unimproved.” There were triable issues of fact as to whether the tree was growing in the same general location as the accident site or was growing in an improved area by virtue of the artificial physical changes in its immediate vicinity. (C.A. 1st, July 25, 2017.)
Demara v. The Raymond Corporation (2017) _ Cal.App.5th _ , 2017 WL 3038160: The Court of Appeal reversed the trial court’s summary judgment in favor of defendants in an action for strict liability and negligence based on injuries plaintiff suffered allegedly caused by design defects in a forklift. The trial court erred in granting summary judgment for the following reasons: First, because plaintiffs’ showing as to causation was more than negligible or theoretical, it was sufficient to defeat summary judgment. Second, defendants did not meet their burden of establishing as a matter of law that the consumer expectation test did not apply to plaintiffs’ claims. Third, in applying the risk-benefit test, defendants failed to present sufficient evidence to shift the burden to plaintiffs to show a triable issue of material fact. (C.A. 4th, filed June 21, 2017, published July 18, 2017).
FilmOn.com v. DoubleVerify, Inc. (2017) _ Cal.App.5th _ , 2017 WL 2807911: See summary above under Civil Procedure.
Swigart v. Bruno (2017) _ Cal.App.5th _ , 2017 WL 3016756: The Court of Appeal affirmed the trial court’s summary judgment for defendant based upon the primary assumption of risk doctrine. Plaintiff was injured by defendant’s horse after she had dismounted at a required checkpoint during an organized endurance horseback riding event. The primary assumption of risk doctrine barred the negligence claim, and plaintiff failed to establish a material issue of fact as to her claims for gross negligence, recklessness, and strict liability. The Court of Appeal also affirmed plaintiff’s motion to tax $1,962.50 in costs claimed by defendant. Because defendant did not include a complete copy of the order on appeal, he failed to meet his burden of establishing error. Defendant also failed to meet his burden of establishing that the trial court abused its discretion in taxing $1,962.50 in costs. (C.A. 4th, filed June 22, 2017, published July 17, 2017).
Taylor v. Trimble (2017) _ Cal.App.5th _ , 2017 WL 3187388: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment in a wrongful death case arising from the drowning of plaintiff’s five-year-old son in defendants’ pool. Regarding the claim for negligent supervision, where the homeowner initially assumed responsibility for supervision of the child, but turned over such responsibility to an adult close relative (the grandfather), who accepted it and did not thereafter relinquish it, the homeowner owed no duty of care to protect the child. As to the claim for premises liability, plaintiff failed to raise a triable issue of fact as to causation. (C.A. 2nd, July 27, 2017.)
Toeppe v. City of San Diego (2017) _ Cal.App.5th _ , 2017 WL 3187391: The Court of Appeal reversed the trial court’s order granting defendant’s motion for summary judgment on the basis of the trail immunity under Government Code section 831.4. The Court of Appeal ruled that the trail immunity did not apply because plaintiff’s dangerous condition claim was based on a negligently maintained eucalyptus tree, not the condition of the trail passing through the park. Moreover, even if the trail immunity did apply, there was a disputed issue of material fact as to where plaintiff was located when the branch struck her. (C.A. 4th, July 27, 2017.)
The Estuary Owners Association v. Shell Oil Co. (2017) _ Cal.App.5th _ , 2017 WL 2793837: See summary above under Civil Procedure.
Wage and Hour
Kizer v. Tristar Risk Management (2017) _ Cal.App.5th _ , 2017 WL 2729841: See summary above under Class Actions.
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