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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 Code
Connor v. First Student, Inc. (2018) _ Cal.5th _ , 2018 WL 3966434: The California Supreme Court affirmed the Court of Appeal’s decision that had reversed the trial court’s order granting summary judgment for defendants in a class action alleging that defendants had violated the Investigative Consumer Reporting Agencies Act (ICRAA; Civil Code section 1786 et seq.) in performing background checks on plaintiff and other school bus driver employees. While there is some overlap between the ICRAA and the Consumer Credit Reporting Agencies Act (CCRAA; Civil Code section 1785.1 et seq.), that does not render the ICRAA unconstitutionally vague when the statutes are otherwise unambiguous. The background check that defendants conducted was an investigative consumer report under ICRAA because it reported on plaintiff’s “character, general reputation, personal characteristics, or mode of living.” (Section 1786.2(c).) That CCRAA also applied did not exempt defendants from the requirement that they first obtain plaintiff’s written authorization under ICRAA before conducting or procuring a background investigation. (Section 1786.16(a)(2)(C).) (August 20, 2018.)
Employment
Connor v. First Student, Inc. (2018) _ Cal.5th _ , 2018 WL 3966434: See summary above under Civil Code.
Government
City of Morgan Hill v. Bushey (2018) _ Cal.5th _ , 2018 WL 4017404: The California Supreme Court vacated the judgment of the Court of Appeal. While the Court of Appeal correctly ruled that a referendum can be used to challenge a zoning ordinance amendment that attempts to make the zoning ordinance consistent with an amended general plan, in this case it was not clear whether other zoning designations were available for the property or whether the petitioner had other means to comply with a successful referendum while making the zoning ordinance and the general plan consistent with one another. The case was remanded to the Court of Appeal with directions to remand it to the trial court to address these issues. (August 23, 2018.)
Loans
De La Torre v. CashCall, Inc. (2018) _ Cal.5th _ , 2018 WL 3827233: Answering a question posed by the Ninth Circuit, the California Supreme Court ruled that the interest rate charged on a consumer loan of $2,500 or more may be deemed unconscionable under section Financial Code section 22302. (August 13, 2018.)
Real Property
City of Morgan Hill v. Bushey (2018) _ Cal.5th _ , 2018 WL 4017404: See summary above under Government.
Torts
King v. CompPartners, Inc. (2018) _ Cal.5th _ , 2018 WL 4017874: The California Supreme Court affirmed in part and reversed in part the decision of the Court of Appeal. The California Supreme Court ruled that the workers’ compensation system provides the exclusive remedy for otherwise compensable injuries stemming from alleged mistakes in the utilization review process. (August 23, 2018.)
Vehicle Code
Ramirez v. City of Gardena (2018) _ Cal.5th _ , 2018 WL 3827236: The California Supreme Court affirmed the ruling of the Court of Appeal and held that in order to obtain the immunity for police chases provided by Vehicle Code Vehicle Code section 17004.7, a public agency must have a written policy requiring its police officers to provide written certification that they have received, read, and understand the policy. However, 100 percent officer compliance with the certification requirement is not a prerequisite to receiving the immunity. The California Supreme Court disapproved Morgan v. Beaumont Police Dept. (2016) 246 Cal.App.4th 144 to the extent that it was inconsistent with this opinion. (August 13, 2018.)
CALIFORNIA COURTS OF APPEAL
Arbitration
Branches Neighborhood Corp. v. CalAtlantic Group, Inc. (2018) _ Cal.App.5th _ , 2018 WL 3804053: The Court of Appeal affirmed the trial court’s order confirming an arbitration award and denying a petition to vacate the award. In a construction defect arbitration the arbitrator correctly granted defendant’s motion for summary judgment because plaintiff did not obtain the consent of its members before it filed the construction defect claim as required by plaintiff’s declaration of Covenants, Conditions and Restrictions. (C.A. 4th, filed August 10, 2018, published August 24, 2018.)
Fuentes v. TMCSF, Inc. (2018) _ Cal.App.5th _ , 2018 WL 4020562: The Court of Appeal affirmed the trial court’s order denying defendant’s petition to compel arbitration. Plaintiff sued defendant alleging that defendant made misrepresentations and violated various statutes in connection with the sale of a motorcycle to plaintiff. The contract between plaintiff and defendant had no arbitration clause. As part of the purchase plaintiff signed a financing agreement with a bank, and this agreement had an arbitration clause. The trial court properly denied the petition because defendant was not a party to the arbitration clause, it was not acting in the capacity of an agent of a party to the arbitration clause, and it was not a third party beneficiary of the arbitration clause. Moreover, plaintiff was not equitably estopped to deny defendant’s claimed right to compel arbitration. (C.A. 4th, August 23, 2018.)
Maplebear v. Busick (2018) _ Cal.App.5th _ , 2018 WL 3991259: The Court of Appeal affirmed the trial court’s dismissal of a petition to vacate a partial arbitration award. The arbitrator issued a “partial final award” determining only that the parties’ arbitration agreement permitted the claimant to move for class certification. The arbitrator’s ruling was not an award under Code of Civil Procedure section 1283.4 and the trial court properly dismissed the petition to vacate. (C.A. 1st, August 21, 2018.)
Attorneys
Sander v. State Bar of California (2018) _ Cal.App.5th _ , 2018 WL 4024906: The Court of Appeal affirmed the trial court’s order denying a writ petition seeking to obtain information from the State Bar of California’s bar admissions database. Petitioners sought individually unidentifiable records for all applicants to the California Bar Examination from 1972 to 2008 in several categories. The Court of Appeal affirmed the trial court’s ruling that petitioners’ request was beyond the purview of the California Public Records Act (Government Code section 6250 et seq.) because it sought to compel the State Bar to create new records. (C.A. 1st, August 23, 2018.)
Civil Code
Cortese v. Sherwood (2018) _ Cal.App.5th _ , 2018 WL 3629096: The Court of Appeal reversed the trial court’s order overruling a demurrer to a cause of action asserting third-party liability for breach of trust. The Court of Appeal held that petitioner alleged that the defendant attorney conspired with the defendant stepfather and therefore the cause of action fell within the coverage of Civil Code section 1714.10(a). The allegations did not qualify for the exceptions under section 1714.10(c). Therefore, petitioner was required to obtain court approval before filing the claim and the demurrer should have been sustained with leave to allow petitioner to make a proper application to the court to include the cause of action in her petition. (C.A. 1st, filed July 31, 2018, published August 21, 2018.)
Civil Procedure
Hacker v. Homeward Residential, Inc. (2018) _ Cal.App.5th _ , 2018 WL 3912920: See summary below under Real Property.
Levingston v. Kaiser Foundation Health Plan (2018) _ Cal.App.5th _ , 2018 WL 3956586: The Court of Appeal reversed the trial court’s order granting summary judgment to defendants in an action by plaintiff alleging causes of action for retaliation and wrongful termination. Plaintiff’s attorneys failed to file an opposition to defendant’s motion for summary judgment. These attorneys had been substituted into the case after plaintiff’s former attorneys were disqualified and the opposition filed by the former attorneys had been stricken. At the hearing on the motion, plaintiff’s new counsel claimed they had not known that they needed to file a new opposition. They requested relief from default under Code of Civil Procedure section 473(b) and a continuance. The trial court found that new counsel’s failure was inexcusable neglect and it granted the motion for summary judgment. The Court of Appeal ruled that,l while counsel’s neglect inexcusable and plaintiff was not entitled to relief under section 473(b), under the controlling case law plaintiff was entitled to a continuance to file an opposition. (C.A. 4th, August 17, 2018.)
Monster Energy Co. v. Schechter (2018) _ Cal.App.5th _ , 2018 WL 3829255: See summary below under Settlement.
Winslett v. 1811 27th Avenue, LLC (2018) _ Cal.App.5th _ , 2018 WL 3868763: The Court of Appeal reversed the trial court’s order granting an anti-SLAPP motion to strike, under Code of Civil Procedure section 425.16, striking three of plaintiff’s causes of action (retaliation in violation of Civil Code section 1942.5, violation of Oakland Municipal Code section 8.22.300 et seq. (Just Cause Ordinance), and retaliatory eviction) and awarding defendant attorney fees and costs. The Court of Appeal ruled that the trial court erred in finding that the litigation privilege barred plaintiff’s retaliation and retaliatory eviction claims under section 1942.5 because the litigation privilege must yield to section 1942.5 and plaintiff showed a likelihood of prevailing on her claims under section 1942.5. The trial court also erred in ruling that plaintiff’s claim for violation of the Just Cause Ordinance was based on protected activity. The Court of Appeal ruled that this claim was not rooted in the unlawful detainer action, but rather in the broader circumstances surrounding the eviction including all of the alleged pressure tactics designed to force plaintiff to abandon her apartment and cease making complaints about tenantability. (C.A. 1st., August 15, 2018.)
Elections
Pease v. Zapf (2018) _ Cal.App.5th _ , 2018 WL 3948515: The Court of Appeal affirmed the trial court’s judgment denying a petition under Elections Code section 16101 challenging respondent’s eligibility for office on the San Diego City Council and seeking to set aside her nomination and declare petitioner nominated for the general election. Respondent represented District 6 during her first term of office and represented District 2 during her second term of office. As a result of redistricting that occurred during respondent’s first term of office, she resided in District 2 for both terms. Petitioner argued that based on her residency, respondent had already served two consecutive terms from the same district and was termed out of office. The Court of Appeal ruled that the term limit provision in the San Diego city charger did not foreclose respondent’s nomination. (C.A. 4th, August 17, 2018.)
Employment
Burkes v. Robertson (2018) _ Cal.App.5th _ , 2018 WL 3974399: The Court of Appeal affirmed the trial court’s order dismissing defendant’s pro se appeal to the Solano County Superior Court of an award by the California Labor Commissioner in favor of plaintiff, an employee of defendant, for unpaid overtime wages, penalties, and interest. Defendant’s failure to post an undertaking in the amount of the award, or to file a request for a waiver of the undertaking requirement before the deadline for filing a Labor Code 98.2 notice of appeal deprived the court of jurisdiction to consider the request. (C.A. 1st, August 20, 2018.)
Ehret v. WinCo Foods, LLC (2018) _ Cal.App.5th _ , 2018 WL 3828789: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment in an action alleging the violation of Labor Code section 512(a) for not providing rest breaks. The trial court properly ruled that the applicable collective bargaining agreement, which provided that an employee who worked a shift of not more than six hours was not entitled to a meal break, waived the plaintiffs’ statutory right to a meal break whenever they worked more than five but not more than six hours. (C.A. 2nd., August 13, 2018.)
Jackpot Harvesting Co. v. Superior Ct. (2018) _ Cal.App.5th _ , 2018 WL 3854052: The Court of Appeal granted a writ petition and ordered the trial court to reversed its order denying petitioner’s motion for summary judgment and instead grant the summary judgment. Plaintiff filed a class action alleging, in part, the failure to compensate piece-rate employees for rest and recovery periods and other nonproductive (NP) time on the job. Labor Code section 226.2 was enacted after the lawsuit was filed. Defendant then amended its answer to assert an affirmative defense that it had complied with the “safe harbor” provision in section 226.2(b). The trial court found the section language to be unclear. The Court of Appeal disagreed, ruling that the unambiguous language of section 226.2(b) provides the employer a safe harbor for all employee claims for unpaid rest/NP time accruing on or prior to December 31, 2015, where the employer has complied with all the requirements of the statute, including timely paying employees for such claims that had accrued between July 1, 2012 and December 31, 2015. (C.A. 6th, August 14, 2018.)
Levingston v. Kaiser Foundation Health Plan (2018) _ Cal.App.5th _ , 2018 WL 3956586: See summary above under Civil Procedure.
Environment
Citizens Coalition Los Angeles v. City of Los Angeles (2018) _ Cal.App.5th _ , 2018 WL 4026019: The Court of Appeal reversed the trial court’s order granting a writ petition and finding that respondent violated the California Environmental Quality Act (CEQA; Public Resources Code, section 21000 et seq.) because the respondent treated the creation of a new subzone as a follow-on to its prior, initial approval of a Target store rather than as a new “project” under CEQA. The Court of Appeal ruled that respondent complied with CEQA in proceeding by way of an addendum to a prior environmental impact report because substantial evidence supported respondent’s finding that the specific plan amendment would not have any reasonably foreseeable environmental consequences beyond the construction of the Super Target store. The ordinance constituted “spot zoning,” but that was permissible because respondent did not abuse its discretion in finding that its amendment to the specific plan was in the public interest and compatible with the general plans of which it was a part. (C.A. 2nd, August 23, 2018.)
San Franciscans etc. v. City and County of San Francisco (2018) _ Cal.App.5th _ , 2018 WL 4024685: The Court of Appeal affirmed the trial court’s order denying most arguments raised by the writ petitioner challenging the adequacy of an environmental impact report (EIR) that respondent used when approving revisions of the housing element of its general plan. However, the Court of Appeal concluded that the EIR’s analysis of the alternatives and the findings regarding potentially feasible mitigation measures were inadequate and not supported by substantial evidence. (C.A. 1st, August 22, 2018.)
Family Law
Marriage of Macilwaine (2018) _ Cal.App.5th _ , 2018 WL 4002067: The Court of Appeal reversed the family court’s order granting husband’s request to modify an existing child support order pursuant to Family Code section 4057(a)(3). The Court of Appeal ruled that section 4058(a)(1) must be construed to include all compensation that has been conferred upon and is available to the employee including available compensation from stock options (the market price less the “strike price”), regardless of whether the employee elects to exercise the option and sell shares of stock. The Court of Appeal also ruled that the family court applied incorrect legal standards in determining the “needs of the children,” as that phrase is used in section 4057 (a)(3), and failed to provide the explanatory findings required by section 4056(a). (C.A. 1st, August 22, 2018.)
Government
Center for Community Action etc. v. City of Moreno Valley (2018) _ Cal.App.5th _ , 2018 WL 4025516: The Court of Appeal reversed the trial court’s order denying a writ petition challenging the adoption by respondent of an initiative to approve a development agreement in connection with a project. The Court of Appeal ruled that by enacting the development agreement statute (Government Code section 65864, et seq.) the Legislature intended to exclusively delegate approval of development agreements to local legislative bodies and to make such approval subject to referendum, but not to initiative. Therefore, the development agreement initiative adopted by respondent was invalid. (C.A. 4th, August 23, 2018.)
Citizens Coalition Los Angeles v. City of Los Angeles (2018) _ Cal.App.5th _ , 2018 WL 4026019: See summary above under Environment.
Sander v. State Bar of California (2018) _ Cal.App.5th _ , 2018 WL 4024906: See summary above under Attorneys.
San Franciscans etc. v. City and County of San Francisco (2018) _ Cal.App.5th _ , 2018 WL 4024685: See summary above under Environment.
Landlord-Tenant
Del Monte Properties and Investments, Inc. v. Dolan (2018) _ Cal.App.5th Supp. _ , 2018 WL 3965632: The Appellate Department of the Humboldt County Superior Court reversed the trial court’s unlawful detainer judgment in favor of plaintiff. Plaintiff charged the tenant a late fee of $50. The late fee was invalid under Civil Code section 1671 because it could not be justified as liquidated damages because the losses caused by late payment of rent were not extremely difficult or impractical to determine, and plaintiff failed to show that the amount of liquidated damages charged were the result of a reasonable endeavor to approximate those losses. The 3-day notice could not support the judgment for unlawful detainer because it contained a demand for an invalid late fee. (Appellate Department of the Humboldt County Superior Court, filed May 11, 2018, ordered published by the California Supreme Court on August 8, 2018.)
Probate
Conservatorship of Presha (2018) _ Cal.App.5th _ , 2018 WL 4001752: The Court of Appeal affirmed the probate court’s order approving the sixth and final accounting which awarded conservator’s fees of $7,000 instead of the requested fees of $12,621.60. (C.A. 4th, August 22, 2018.) Powell v. Tagami (2018) _ Cal.App.5th _ , 2018 WL 3722264: The Court of Appeal affirmed the probate court’s orders finding that Charles Tagami’s (Charles) objection to the third and final predeath account and report of trustee was filed without reasonable cause and in bad faith, and awarding $42,115.38 in attorney fees and costs pursuant to Probate Code section 17211 that required Charles to pay these fees from his share of the Tagami Living Trust (the Trust) or personally if his share was inadequate. The Court of Appeal concluded that Charles’s objections were made and maintained without reasonable cause and there was substantial evidence to support the court’s finding the objections were brought in bad faith. The probate court properly determined Charles should pay the costs of the trustee and other expenses and costs of litigation, including attorney fees, pursuant to Probate Code section 17211(a). (C.A. 4th, filed August 6, 2018, published August 15, 2018.)
Scott v. McDonald (2018) _ Cal.App.5th _ , 2018 WL 4001771: The Court of Appeal affirmed the probate court’s order approving, subject to a $93,036.75 surcharge, the first and final account and report of trustee, but it reduced the surcharge to $92,036.75. The trust started with $229,984.81 in cash. On October 25, 2007, $1,250 was paid to a property management company for rent; $103,750 was paid for beneficiary’s daycare and evening care; $10,650.88 was spent on beneficiary’s education; $34,229.55 was paid to trustee as compensation without prior court approval; $23,896.35 was spent on “living expenses,” which included items such as long distance telephone bills and trips to London and Jamaica; and $24,404.50 was spent on vehicle expenses, such as car insurance and vehicle repairs. The final distribution of $15,574.85 was made to beneficiary’s mother to purchase a house. The probate court found properly found that the special needs trust trustee breached her fiduciary duty by failing to notify the court of her lack of a license from 2008 to 2010, and by not acting with good faith toward the beneficiary in making several distributions. (C.A. 4th, August 22, 2018.)
Real Property
Citizens Coalition Los Angeles v. City of Los Angeles (2018) _ Cal.App.5th _ , 2018 WL 4026019: See summary above under Environment.
Hacker v. Homeward Residential, Inc. (2018) _ Cal.App.5th _ , 2018 WL 3912920: The Court of Appeal reversed the trial court’s order sustaining demurrers, without leave to amend, to a complaint alleging causes of action arising from an allegedly void assignment of a deed of trust (DOT) on real property and a failed short sale agreement. While the trial court properly sustained the demurrers, it abused its discretion in denying plaintiff leave to amend to allege ownership of the real property. (C.A. 2nd, August 16, 2018.)
San Franciscans etc. v. City and County of San Francisco (2018) _ Cal.App.5th _ , 2018 WL 4024685: See summary above under Environment.
Settlement
Monster Energy Co. v. Schechter (2018) _ Cal.App.5th _ , 2018 WL 3829255: The Court of Appeal affirmed in part and reversed in part the trial court’s order denying defendants’ (attorneys in an underlying matter that was settled) anti-SLAPP motion to strike a complaint as to several causes of action but denying it as to the breach of contract claim. Plaintiff alleged breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and promissory estoppel against defendant attorneys for their alleged violation of a settlement agreement between the former clients of defendants and plaintiff. The Court of Appeal affirmed the trial court’s ruling that plaintiff had failed to prove the application of the commercial speech exemption under Code of Civil Procedure, section 425.17(c). However, the Court of Appeal reversed the denial of the anti-SLAPP motion to the breach of contract cause of action. When a settlement agreement provides that the plaintiffs and their counsel agree to keep the terms of the agreement confidential, and when the plaintiffs’ counsel signs the agreement using the words “Approved as to form and content,” plaintiffs’ counsel are not liable to the defendant for a breach of the confidentiality provision. (C.A. 4th, August 13, 2018.)
Torts
Hass v. RhodyCo Productions (2018) _ Cal.App.5th _ , 2018 WL 3830002: The Court of Appeal reversed in part and affirmed in part the trial court’s ruling granting a motion for new trial after it granted a motion for summary judgment in a wrongful death action involving a decedent who suffered a cardiac arrest, collapsed, and died just after he crossed the finish line in a half marathon race. The Court of Appeal ruled that summary judgment was not warranted in this case based on primary assumption of the risk. However, it ruled that the trial court erred in requiring amendment of the complaint to plead gross negligence and determined, based on its independent review of the record, that a triable issue of material fact existed on this issue. The case was remanded and the trial court was instructed to enter a denial of defendant’s summary judgment motion. (C.A. 1st, August 13, 2018.)
Webster v. Claremont Yoga (2018) _ Cal.App.5th _ , 2018 WL 3913660: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendants in an action where plaintiff alleged her yoga instructor injured her while adjusting her posture during a yoga class. Defendants moved for summary judgment and filed expert declarations stating that defendants had not breached the standard of care and that the instructor had not caused plaintiff ’s injuries. Plaintiff offered no experts and opposed the motion with her own deposition testimony and medical records. The trial court properly granted the motion because plaintiff failed to put forth evidence conflicting with the evidence offered by defendants’ experts. (C.A. 2nd, filed July 31, 2018, published August 16, 2018.)
Williams v. The Pep Boys Manny Moe and Jack of California (2018) _ Cal.App.5th _ : The Court of Appeal affirmed in part and reversed in part rulings of the trial court in a survival action and wrongful death action due to mesothelioma from asbestos exposure. The Court of Appeal ruled that the trial court properly allowed defendant to amend its answer during trial regarding its statute of limitations defense, and affirmed the trial court’s order granting defendant’s motion for judgment under Code of Civil Procedure section 631.8 as to the wrongful death and punitive damages claims. However, the trial court erred in its damages award. Plaintiffs were entitled to recover the reasonable value of the home health care services they provided to decedent before his death, and were also entitled to recover household services damages for care decedent would have provided to his wife before decedent’s death. Finally, because defendant did not apportion its Code of Civil Procedure section 998 offer among plaintiffs’ distinct claims, its offer was invalid, and the trial court’s award of expert witness fees to defendant was reversed. (C.A. 1st, August 23, 2018.)
Water
Center for Biological Diversity v. Dept. of Conservation (2018) _ Cal.App.5th _ , 2018 WL 3853906: The Court of Appeal affirmed the trial court’s order denying a petition for writ of mandate seeking to order respondent to immediately close all oil and gas wells injecting fluids into certain underground aquifers on the alleged basis that respondent had a mandatory duty to do so under the federal Safe Drinking Water Act (SDWA or the Act; 42 U.S.C. section 330f et seq.). A writ of mandate was not proper because respondent exercised its discretion in concluding that a corrective action plan was the best means to fulfill its duties to protect nonexempt aquifers and to ensure that injections do not endanger sources of drinking water. Moreover, a 1982 Memorandum of Understanding between the U.S. Environmental Protection Agency and respondent did not impose a mandatory duty on respondent to immediately cease injections into nonexempt aquifers. (C.A. 1st, August 14, 2018.)
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