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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
Monty’s Cell: (619) 990-4312 Monty’s Email: monty@montymcintyre.com
CALIFORNIA SUPREME COURT
Civil Procedure
Hassell v. Bird (2018) _ Cal.App.5th _ , 2018 WL 3213933: See summary below under Internet.
Internet
Hassell v. Bird (2018) _ Cal.App.5th _ , 2018 WL 3213933: The California Supreme Court reversed the decision of the Court of Appeal that had affirmed the trial court’s order denying a motion by Yelp to set aside and vacate a default judgment against defendant that included an order requiring Yelp.com (Yelp was not a party to the lawsuit) to remove all reviews posted by defendant under user names “Birdzeye B.” and “J.D.” The California Supreme Court ruled that Yelp was entitled to immunity under the Communications Decency Act of 1996 (47 U.S.C. section 230) and could not be ordered to remove the reviews and reversed the trial court’s order as it related to Yelp. (July 2, 2018.)
Torts
Lopez v. Sony Electronics, Inc. (2018) _ Cal.App.5th _ , 2018 WL 3298045: The California Supreme Court reversed the Court of Appeal decision that had affirmed the trial court’s order granting summary judgment for defendant in an action by a minor who alleged she was harmed by in utero exposure to hazardous chemicals where her mother worked. The California Supreme Court ruled that the applicable statute of limitations was the toxic exposure claims statute under Code of Civil Procedure, Section 340.8(a), which is two years but is tolled while the plaintiff is a minor. The trial court and Court of Appeal had ruled that the statute of limitations was Code of Civil Procedure, section 340.4, the six-year statute of limitations for birth and prenatal injuries. (July 5, 2018.)
Trials
Jameson v. Desta (2018) _ Cal.App.5th _ , 2018 WL 3298042: The California Supreme Court reversed and remanded the Court of Appeal decision that had affirmed the trial court’s order granting defendant a nonsuit after the opening statement by the pro-per plaintiff. Under California’s in forma pauperis doctrine and Government Code section 68086 (b), a person who, because of limited financial resources, qualifies for a waiver of initial court filing fees is entitled, as well, to a waiver of fees for the attendance of an official court reporter at a hearing or trial. The Supreme Court ruled that the San Diego Superior Court’s general policy of not providing official court reporters in most civil trials, while permitting privately retained court reporters for parties who can afford to pay for such reporters, is invalid as applied to plaintiff and other fee waiver recipients, and that an official court reporter, or other valid means to create an official verbatim record for purposes of appeal, must generally be made available to in forma pauperis litigants upon request. (July 5, 2018.)
CALIFORNIA COURTS OF APPEAL
Arbitration
Juarez v. Wash Depot Holdings (2018) _ Cal.App.5th _ , 2018 WL 3237905: The Court of Appeal affirmed the trial court’s order denying a petition to compel arbitration in a wage and hour putative class action that included a representative action pursuant to the California Private Attorneys General Act (PAGA; Labor Code, section 2698 et seq.). Defendant had a employee handbook written in English and Spanish that required arbitration of employment disputes and denied an employee’s right to bring an action under PAGA. The English version said the denial of the right to bring a PAGA action was severable if such denial was found by a court to be unenforceable. The Spanish version provides that the PAGA denial was not severable. The Court of Appeal ruled that the trial court properly concluded that the PAGA waiver set forth in the handbook was unenforceable as against public policy. (C.A. 2nd, July 3, 2018.)
Civil Code
B.B. v. County of Los Angeles (2018) _ Cal.App.5th _ , 2018 WL 3373492: The Court of Appeal affirmed in large part and reversed in part a jury verdict awarding plaintiffs $8 million for the wrongful death of decedent Darren Burley as a result of injuries sustained when he was arrested by several deputies of the Los Angeles Sheriff’s Department. The jury found decedent was 40% at fault, two deputies were 20% at fault each, and the remaining 20% of fault was allocated to other deputies. The Court of Appeal reversed the part of the judgment holding one deputy was liable for 100% of the judgment because he had acted intentionally. Civil Code section Civil Code section 1431.2 mandates allocation of the noneconomic damages award in proportion to each defendant’s comparative fault. The trial court was directed to vacate the judgment and enter separate judgments for each of the deputies holding them liable for the noneconomic damages award in an amount proportionate to the jury’s comparative fault determinations. Because it found plaintiffs had raised an issue of material fact, the Court of Appeal also reversed the trial court’s order granting summary judgment to defendants on claims for civil rights violations under Civil Code section 51.2. (C.A. 2nd, July 10, 2018.)
Baskin v. Hughes Realty, Inc. (2018) _ Cal.App.5th _ , 2018 WL 3387462: The Court of Appeal affirmed the trial court’s ruling, following a bench trial, that plaintiff’s claim under the California Disabled Persons Act (Civil Code, sections 54-55.3) failed. Plaintiff alleged the grocery store was obliged to designate an accessible path of travel from the street to the store’s entrance that did not require wheelchair-bound patrons to travel behind parked vehicles. The trial court properly ruled that defendant was not required to provide a marked path of travel that did not pass behind parked cars, and that the first amended complaint alleged no claim for inadequate signage. (C.A. 2nd, July 12, 2018.)
Pacific Gas & Electric Co. v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 3216889: See summary below under Punitive Damages.
Civil Procedure
L.G. v. M.B. (2018) _ Cal.App.5th _ , 2018 WL 3407970: The Court of Appeal affirmed the trial court’s order denying defendant’s anti-SLAPP motion to strike under Code of Civil Procedure section 425.16. The trial court properly ruled that the “divorce proviso” exception to the litigation privilege in Code of Civil Procedure section 47(b)(1) applied and properly denied the anti-SLAPP motion. (C.A. 2nd, July 13, 2018.)
Littlejohn v. Costco Wholesale Corp. (2018) _ Cal.App.5th _ , 2018 WL 3407996: See summary below under Taxes.
Education
Brown v. Smith (2018) _ Cal.App.5th _ , 2018 WL 3215780: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to plaintiffs’ complaint challenging an amendment to California law that eliminated the previously existing “personal beliefs” exemption from mandatory immunization requirements for school children (see Health and Safety Code section 120325). The trial court properly rejected the constitutional and other challenges argued by plaintiffs. (C.A. 2nd, July 2, 2018.)
Employment
Caldera v. Dept. of Corrections & Rehabilitation (2018) _ Cal.App.5th _ , 2018 WL 3342654: The Court of Appeal reversed the trial court’s order granting a new trial as to damages but otherwise affirmed a jury verdict awarding plaintiff $500,000 in noneconomic damages in a Fair Employment and Housing Act case because the jury concluded that defendants had engaged in severe or pervasive disability harassment of plaintiff who stutters. The Court of Appeal reversed the new trial order because the trial court failed to file a timely statement of reasons after granting defendants’ motion for a new trial. Fellow employees mocked or mimicked plaintiff’s stutter at least a dozen times over a period of about two years. The Court of Appeal found there was substantial evidence to support the jury’s factual findings of severe or persuasive disability harassment. (C.A.4th, July 9, 2018.)
Juarez v. Wash Depot Holdings (2018) _ Cal.App.5th _ , 2018 WL 3237905: See summary above under Employment.
Moreles v. 22nd District Agricultural Assn. (2018) _ Cal.App.5th _ , 2018 WL 3357788: The Court of Appeal affirmed the trial court’s order sustaining a demurrer to the second amended complaint in a putative class action for wage and hour violations of Labor Code section 510. The Court of Appeal ruled that section 510(a) did not require the 22nd District Agricultural Association of the State of California (DAA) to pay its employees overtime compensation regardless of whether the DAA was acting as plaintiffs’ sole employer or joint employer. (C.A. 4th, July 10, 2018.)
Evidence
Belfiore-Braman v. Rotenberg (2018) _ Cal.App.5th _ , 2018 WL 3120174: The Court of Appeal affirmed the trial court’s ruling on a motion in limine, after a hearing under Evidence Code section 402, that excluded certain medical opinion testimony plaintiff wanted to offer on issues of causation and damage from her recently designated, nonretained expert witness, Dr. Aaron G. Filler, M.D., Ph.D. The trial court properly ruled that the proposed testimony would be unduly duplicative within the meaning of Evidence Code section 723, and properly ruled that the nonretained expert witness would be allowed to testify to the jury only as to his observations from an imaging study he performed and what the test results revealed to him about plaintiff’s condition. The trial court did not abuse its discretion in precluding the offered testimony on causation and damage. (C.A. 4th, filed June 26, 2018, published July 13, 2018.)
Family Law
L.G. v. M.B. (2018) _ Cal.App.5th _ , 2018 WL 3407970: See summary above under Civil Procedure.
Government
Richardson v. Dept. of Motor Vehicles (2018) _ Cal.App.5th _ , 2018 WL 3373387: See summary below under Torts.
Young v. Cal. Fish & Game Commission (2018) _ Cal.App.5th _ , 2018 WL 3216828: The Court of Appeal affirmed the trial court’s order denying a writ petition seeking to overturn respondents’ refusal to waive an approximately $300 inspection fee, required under California Code of Regulations, title 14, sections 671.1 and 703, to be paid in order for petitioner to renew a permit for the operation of her wildlife sanctuary. The trial court properly denied the writ petition. (C.A. 4th, July 2, 2018.)
Health Care
Brown v. Smith (2018) _ Cal.App.5th _ , 2018 WL 3215780: See summary above under Education.
Judges
Fisher v. State Personnel Board (2018) _ Cal.App.5th _ , 2018 WL 2770817: The Court of Appeal affirmed the trial court’s order denying a writ petition by petitioner, an administrative law judge for the State Personnel Board (SPB), seeking to overturn his dismissal as a judge after it was learned that he had become “of counsel” with a law firm that specialized in representing clients facing administrative actions heard by the SPB. The Court of Appeal ruled that petitioner’s activity violated Government Code section 199903 and the SPB’s incompatibility activities statements that were in effect throughout his tenure. Substantial evidence supported the findings of the administrative law judge who found that petitioner displayed an appalling lack of judgment when he became of counsel and continued to demonstrate poor judgment when he failed to disclose his of counsel relationship. (C.A. 3rd, filed June 11, 2018, published July 6, 2018.)
Punitive Damages
Pacific Gas & Electric Co. v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 3216889: The Court of Appeal granted a writ petition ordering the trial court to reverse its order denying petitioner’s motion for summary adjudication on the issue of punitive damages and instead grant the motion. The underlying coordinated proceeding arose out of the 2015 Butte fire in Calaveras and Amador counties. The fire started when a tree came into contact with an overhead power line owned and operated by petitioners. The Court of Appeal ruled that petitioners carried the initial burden of showing the nonexistence of any triable issue of material fact on the issue of malice by presenting evidence that (1) petitioners devote substantial resources to vegetation management programs intended to mitigate the risk of wildfire, (2) petitioners hired contractors to conduct routine patrols in the area near the subject tree, and (3) contractors’ employees visited the area near the subject tree on several occasions, and did not report anything that should have put petitioners on notice that the subject tree posed a danger. This evidence negated any inference that petitioners acted despicably, and with willful and conscious disregard for the rights and safety of others, and was sufficient to shift the burden to plaintiffs to present admissible evidence creating a triable issue of material fact as to malice. The Court of Appeal held that plaintiffs failed to raise a triable issue of material fact. (C.A. 3rd, July 2, 2018.)
Real Property
McLear-Gary v. Scott (2018) _ Cal.App.5th _ , 2018 WL 3373427: The Court of Appeal reversed in part and affirmed in part the trial court’s judgment, following a bench trial, on plaintiff’s claim alleging she has an easement along a trail. The trial court erred in finding that defendants had established that they timely paid taxes during the five-year statutory period for adverse possession. (See Code of Civil Procedure, section 325(b).) A lump sum payment of several years’ worth of delinquent property taxes did not constitute “timely” payment of taxes for purposes of section 325(b), and the trial court erred in concluding that defendants had extinguished plaintiff’s easement by adverse possession. The other rulings of the trial court were affirmed. (C.A. 1st, July 11, 2018.)
Taxes
Littlejohn v. Costco Wholesale Corp. (2018) _ Cal.App.5th _ , 2018 WL 3407996: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to plaintiff’s third amended complaint. Plaintiff brought a putative class action to recover amounts he paid in sales tax reimbursement on purchases of the product Ensure at Costco. The Court of Appeal affirmed the trial court’s ruling because the remedy in Javor v. State Board of Equalization (1974) 12 Cal.3d 790 should be limited to the unique circumstances where plaintiff’s allegations show that the state has been unjustly enriched by the overpayment of sales tax, and the California Board of Equalization concurs that the circumstances warrant refunds to consumers. (C.A. 1st, July 13, 2018.)
Torts
B.B. v. County of Los Angeles (2018) _ Cal.App.5th _ , 2018 WL 3373492: See summary above under Civil Code.
Richardson v. Dept. of Motor Vehicles (2018) _ Cal.App.5th _ , 2018 WL 3373387: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant in an action for serious personal injuries. Defendant was sued for lifting a suspension against the driver’s license of a 93-year-old woman, Elsie Dembowsky, who caused a motor vehicle collision with plaintiff. Defendant was entitled to immunity under Government Code section 818.4. (C.A. 1st, filed June 22, 2018, published July 11, 2018)
Trial
Belfiore-Braman v. Rotenberg (2018) _ Cal.App.5th _ , 2018 WL 3120174: See summary above under Evidence.
Padda v. Superior Court (2018) _ Cal.App.5th _ , 2018 WL 2772782: The Court of Appeal granted a writ petition and ordered the trial court to vacate its order denying petitioners’ ex parte application to continue the trial, and to enter a new and different order granting the request. Five days before his deposition and eleven days before the trial, the expert gastroenterologist for petitioners (defendants in the underlying action) suffered a ruptured hemorrhagic cyst affecting the kidney and pancreas that required aspiration and re-evaluation that would make the expert unavailable for six weeks. The trial court abused its discretion in denying the request to continue the trial. (C.A. 4th, filed June 11, 2018, published July 6, 2018.)
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